[Federal Register Volume 68, Number 192 (Friday, October 3, 2003)]
[Proposed Rules]
[Pages 57383-57392]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-25094]
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NUCLEAR REGULATORY COMMISSION
10 CFR Part 52
[Docket No. PRM 52-1]
Nuclear Energy Institute; Denial of Petition for Rulemaking
AGENCY: Nuclear Regulatory Commission.
ACTION: Denial of petition for rulemaking.
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SUMMARY: The Nuclear Regulatory Commission (NRC) is denying a petition
for rulemaking (PRM 52-1) submitted by the Nuclear Energy Institute
(NEI or the petitioner). The petitioner requested that the NRC amend
its regulations to allow applicants seeking an early site permit (ESP)
and a combined license (COL) to use existing information from prior
licensing actions as resolved information that has been approved by the
NRC and has been subject to a public hearing. The Commission is denying
the petition because most of the efficiencies, regulatory stability and
predictability which are the object of the petitioner's proposal can be
achieved under existing regulations and the guidance that the
Commission has directed the NRC staff to prepare. In addition, several
key aspects of the petition are based on a misapplication of the
``current licensing basis'' concept and the Backfit Rule, and the
petition does not represent a viable approach for achieving the desired
efficiencies.
ADDRESSES: Copies of the petition for rulemaking, the public comments
received, and the NRC's letter of denial to the petitioner are
available for public inspection, or copying for a fee, at the NRC's
Public Document Room, located at One White Flint North, 11555 Rockville
Pike (first floor), Rockville, Maryland. These documents are also
available on the NRC's rulemaking web site at http://ruleforum.llnl.gov.
FOR FURTHER INFORMATION CONTACT: Stephen S. Koenick, Office of Nuclear
Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC
20555-0001, telephone (301) 415-1239, e-mail: [email protected].
SUPPLEMENTARY INFORMATION:
[[Page 57384]]
Background
By letter dated July 18, 2001, NEI submitted a petition for
rulemaking (PRM) to amend 10 CFR part 52. The petitioner requested that
the NRC amend its regulations governing ESP and COL applications at
existing reactor sites to make the development and regulatory review of
the application more efficient. The petitioner proposes to incorporate
by reference and treat as resolved, existing information. By so doing,
the petitioner wishes to eliminate the need for what it believes is
duplicate applicant preparation and NRC review of existing information
relating to a licensed facility that has been previously approved by
the NRC and has been subject to a public hearing. The petitioner
believes that its proposed amendments would enhance the focus and
efficiency of the ESP and COL licensing processes.
A notice of receipt of the petition was published in the Federal
Register on September 24, 2001 (66 FR 48832). The comment period closed
on November 8, 2001. The NRC received letters from ten commenters. Nine
of the ten commenters were in favor of the petition. Seven of the
favorable letters were from nuclear utilities, one was from a vendor,
and one was from the petitioner. One commenter, a member of a public
advocacy group, opposed the petition. The comments are discussed in
this document.
Separately, the NRC is currently conducting rulemaking to amend 10
CFR Part 52. This rulemaking activity addresses lessons learned during
previous design certification reviews and addresses certain elements of
the ESP, design certification, and COL review processes. NEI requested
in its July 18, 2001, letter forwarding the petition that this petition
be incorporated into the ongoing rulemaking effort. The Commission has
decided further consideration of the petition during the part 52
rulemaking is not necessary, but the Commission will consider any
relevant proposals to increase efficiencies, regulatory stability and
predictability for part 52 regulatory processes that may be submitted
during the public comment period on the proposed Part 52 rule.
The Petition
The petitioner expects that existing licensees will order new
nuclear power reactors in the future and that many of the new reactors
will be located on sites of currently operating plants. Additionally,
the petitioner anticipates that the new reactors will rely on a number
of the operational programs currently being used by the existing
licensees. The petitioner believes that its proposed Sec. Sec. 52.16
and 52.80 should be added to part 52 to allow the use of existing
information as a baseline and to limit the review and opportunity for a
hearing to the consideration of changed circumstances, such as new
regulations and significant new information, to improve the efficiency
of the ESP and COL licensing processes. In its July 18, 2001, letter
forwarding the petition, the petitioner requested that the proposed
amendments be included in the part 52 rulemaking now in progress.
The petitioner notes that Subpart A of Part 52 contains provisions
governing issuance of ESPs. The petitioner proposes that a new Sec.
52.16 be added to Subpart A to allow an ESP applicant to incorporate,
by reference, all or portions of the ``current licensing basis'' for an
existing reactor site to the extent that it is valid and applicable to
one or more additional nuclear power plants that ``fit within the ESP
envelope.'' The proposed Sec. 52.16 also would require that any
information incorporated by reference be augmented to include:
1. Significant new safety or environmental information that
materially affects the ability of the site to support the proposed
additional nuclear facility;
2. Information regarding the cumulative radiological and
environmental impacts of the existing facility and the facility as
described in the ESP application;
3. An analysis of the potential safety impacts of the existing
facility on the suitability of the site for the facility as described
in the ESP application;
4. An analysis of the potential safety impacts on the existing
facility from the facility as described in the ESP application; and
5. Information that addresses regulations applicable to siting
issues that became effective after licensing of the current facility to
the extent that these regulations are not addressed in the current
licensing basis.
The petitioner states that under proposed Sec. 52.16, the NRC
would treat those matters incorporated by reference as resolved, except
to the extent that those matters are subject to augmentation with the
new information described above. The petitioner also states that this
section would allow the NRC to impose a change in the application with
respect to the information incorporated by reference to the extent that
the change satisfies the principles underlying the Backfit Rule in 10
CFR 50.109. The petitioner believes that in preparing the environmental
impact statement (EIS) for the ESP, the NRC should adopt the applicable
portions of the existing EIS for the site, modified or supplemented as
necessary to reflect the NRC's review of the new environmental
information proposed in Sec. 52.16.
The petitioner notes that subpart C of 10 CFR part 52 contains
provisions governing issuance of COLs. The petitioner states that
proposed Sec. 52.80, with provisions similar to those proposed in
Sec. 52.16, would be added to Subpart C. The petitioner also states
that proposed Sec. 52.80 would allow a COL applicant to incorporate by
reference programmatic information identified in the ``current
licensing basis'' of an existing licensed facility located at the same
site or at a site owned or operated by the same licensee. Programmatic
information, as identified by the petitioner, includes, but is not
limited to, radiological emergency response plans, organizational
structure, administrative controls to assure safe operation, plans for
conducting normal operations, physical security plans, and quality
assurance programs. The proposed Sec. 52.80 would require this
programmatic information to be augmented to include information on
regulations that became effective after the existing facility was
licensed to the extent that these regulations are not addressed by the
current licensing basis for the existing facility. The petitioner
states that under this proposed section, the NRC would treat those
matters incorporated by reference from the existing facility as
resolved, except to the extent that there is new information. The
petitioner believes that the NRC could direct that a change be made in
the COL application with respect to the information incorporated by
reference to the extent that the change satisfies the principles
underlying the Backfit Rule, 10 CFR 50.109.
The petitioner states that the proposed amendments would not only
be consistent with NRC's mission to ensure adequate protection of the
public health and safety, the common defense and security, and the
environment, but also would focus NRC reviews on new information and
``the incremental impact of an additional unit at an existing site.''
The petitioner also states that the proposed amendments would enhance
the efficiency of the regulatory process, reduce regulatory burden by
eliminating duplicate reviews of matters resolved in previous
proceedings, and focus agency resources on new and material information
and the impact of a potential new plant on the site.
[[Page 57385]]
Public Comments on the Petition
The NRC received ten comments in response to the petition. Nine of
the ten comments were in favor of the petition. Seven of the favorable
comments were from nuclear utilities, one was from a vendor, and one
was from the petitioner. These commenters summarized the arguments in
the petition but provided no additional bases in support of the
petition. They suggested that the petition be included in the current
Part 52 rulemaking activity. One commenter, a member of a public
advocacy group, opposed the petition.
Reasons for Denial
The petition requests that the ESP and COL processes set forth in
10 CFR part 52 be amended to allow an applicant to use existing
information supplied to support the license for a different facility in
an ESP or a COL application and to treat the information as resolved.
The petition also discusses prior NRC activities that the petitioner
claims are precedent for the petitioner's proposal. The Commission
recognizes the advantages of licensing plants in a mature industry
environment, rather than an emerging industry as was the case for the
majority of the existing plant licenses. For example, referencing
already proven programs utilized by a mature industry is much less
uncertain than new programs proposed for an emerging industry. To the
extent practicable, the Commission expects applicants for ESPs and COLs
to rely on previously filed siting and programmatic information, as is
permitted under existing NRC regulations. To ensure that future license
applicants and the public understand the staff's review process, the
Commission has directed the staff to articulate in appropriate guidance
documents the specific criteria it will use to make its determination
as to whether new siting information or a program modification is
necessary. However, there are limitations to using previously filed
information and insufficient legal bases for the petitioner's
proposals. Existing information may be referenced, however, applicants
need to demonstrate the information is technically applicable to the
prospective licensing action. In addition, this information cannot be
treated as resolved for the purposes of a hearing, in as much as
principles of res judicata and collateral estoppel would not provide
sufficient legal bases to support the petitioner's rulemaking proposal.
Therefore, for these reasons, the Commission is denying the petition.
In addition, certain key aspects of the proposal are based on a
misapplication of the ``current licensing basis'' concept and the
Backfit Rule. For ESPs and COLs there are no ``current licensing
bases'' that exist with respect to a new facility-including a new
facility to be located adjacent to a site of an existing licensed
facility.
Early Site Permits
According to the petitioner's proposal, the siting information to
be used as a basis for evaluating the acceptability of an ESP
application for a site that is near a site for which a construction
permit or license has been previously issued by the NRC \1\ would be
established, in part, by the siting information which the applicant
proposes to ``incorporate by reference'' from the ``current licensing
basis'' for the prior construction permit or license. See proposed
Sec. 52.16(a). The applicant would have to supplement the incorporated
information to the extent that there is significant new information on,
inter alia, the ability of the site to support the additional nuclear
facility contemplated by the applicant, information on cumulative
radiological impacts, and information addressing new regulations. See
proposed Sec. 52.16(b). The information incorporated by reference that
need not be supplemented under paragraph (b), would be treated as
resolved, unless the NRC met the Backfit Rule. See proposed Sec.
52.16(d). The information incorporated by reference that must be
supplemented under paragraph (b) would be subject to NRC review and
approval, and the Backfit Rule would not apply. A similar approach
would be used for environmental information. See proposed Sec.
52.16(c) and (f) [sic].
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\1\ In pre-application interactions, two of the prospective ESP
applicants have identified the physical locations of the proposed
facilities to be at different locations on the proposed sites than
were considered during the previous licensing actions.
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Use of Information From Prior Licensing Actions
The petitioner's proposal implies that prior regulatory
determinations by the NRC staff and licensing decisions in NRC
adjudicatory proceedings with respect to siting for currently licensed
plants should have preclusive effect in proceedings for ESPs to be
located at or near a site for which a construction permit or operating
license has been issued for another facility. The Commission recognizes
that practical efficiencies may occur through incorporation of
previously filed information or reference in some instances to prior
adjudicatory hearings.
The Commission's regulations and guidance already afford an
applicant the opportunity to use information from prior licensing
decisions. Under Sec. 50.32, ``Elimination of Repetition,'' an
applicant may incorporate by reference information already filed with
the Commission. This regulatory provision may be used by an ESP
applicant to reference information from existing sources, including the
safety analysis report and the environmental report on the facility
which is near the location that the applicant proposes to obtain an ESP
for. Although the current part 52 does not contain a provision that
explicitly allows ESP applicants to take advantage of Sec. 50.32, it
was the intent of the Commission that the licensing provisions in Part
50 would be applicable to the licensing processes in Part 52. See SECY-
02-0077 (May 8, 2002; ADAMS Accession No.: ML021040011), Attachment at
p.10.
With respect to the agency's compliance with the National
Environmental Policy Act (NEPA), the current part 51 regulations
already permit an applicant or licensee to use prior information.
Following the receipt of an ESP application, the NRC would conduct a
scoping process involving interested stakeholders. Under the provisions
of Sec. 51.29(a), the NRC would use the scoping process to ``identify
and eliminate from detailed study those issues which are peripheral or
are not significant or which have been covered by prior environmental
review'' and to identify other environmental assessments and impact
statements which are ``related to but are not part of the scope of the
statement under consideration.'' Another process to use prior
information is ``tiering.'' Tiering allows federal agencies to rely on
previous environmental assessments (EAs) and EISs to aid in the
presentation of issues, eliminate repetition, or reduce the size of an
EIS. Tiering is encouraged by the Council on Environmental Quality (see
40 CFR 1520.20), and the NRC's regulations permit the use of tiering
and incorporation by reference (see 10 CFR part 51, Appendix A.1.(b)).
The Commission expects that both scoping and tiering with be used in
appropriate circumstances to limit and focus the environmental issues
to be addressed in an EIS for an ESP application for a site near an
existing licensed facility.
The Commission also expects that the NRC staff's licensing review
of an application for an ESP located at or near the same site as a
current or formerly
[[Page 57386]]
licensed facility will draw upon, and be informed by, the body of
information that has already been amassed for that site as part of the
previous licensing review. After demonstrating the relevance and
technical adequacy of the baseline of information for that site, the
ESP application and the NRC's review should be focused on determining
whether (1) there is significant new information for determining site
characteristics; (2) there are new methodologies or techniques for
collecting and analyzing information on site characteristics which have
been developed since the earlier review and which are now accepted by
the staff for conducting such collections and analyses; and (3) the
regulatory requirements governing the site evaluation and the criteria
for acceptance of the site have changed since the earlier review. On
December 23, 2002, the NRC staff issued NRR Review Standard, RS-002,
``Processing Applications for Early Site Permits: Draft for Interim Use
and Public Comment,'' (ADAMS Accession No.: ML023530045). The objective
of this document is to ensure that staff reviews of ESP applications
and associated environmental reports (ERs) are efficient, effective,
and consistent, and that the reviews result in high-quality products.
The primary source of guidance for the site safety assessment review is
applicable portions of NUREG-0800, ``Standard Review Plan for the
Review of Safety Analysis Reports for Nuclear Power Plants,'' as
modified for the ESP review. The primary source of guidance for the ER
review is applicable portions of NUREG-1555, ``Standard Review Plans
for Environmental Reviews for Nuclear Power Plants,'' as supplemented
by RS-002. The Commission has directed the staff to develop specific
criteria that the staff will use in making its determination whether
former siting information must be supplemented and new findings made
with respect to an ESP application at or near a previously licensed
facility. In developing this guidance, the staff will consider the five
criteria in proposed Sec. 52.16 for augmenting information. RS-002 and
the specific criteria will assist the NRC's review in determining
whether the referenced information is technically relevant to the ESP
and focus the review on newly identified issues of significant
technical merit.
With respect to adjudicatory decisions, it is clear that Commission
and Licensing Board holdings on legal issues in an earlier proceeding
constitute precedent for all subsequent proceedings where the same
legal issue is presented. The Commission also believes that, apart from
the issue resolution provisions in Part 52 applicable to an ESP
referenced in a COL application, the doctrines of res judicata (or
``claim preclusion'') and collateral estoppel (or ``issue preclusion'')
may be available to preclude certain claims and issues from being
relitigated in an ESP proceeding where the same party has raised the
claims and issues in an earlier licensing proceeding at or near a
previously licensed facility. However, the Commission does not believe
that either res judicata or collateral estoppel provides a sufficient
basis for adopting the petitioner's rulemaking proposal. Res judicata
applies where (1) there has been a final adjudication of the merits of
a particular cause of action or claim by a tribunal of competent
jurisdiction; and (2) one of the parties to that adjudication (or party
in privity with such party) subsequently seeks to advance or defeat the
same cause of action or claim in either the same proceeding or in a
separate proceeding involving the parties to the first action or their
privies. Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 and
2), CLI-74-12, 7 AEC 203, 212 (1974). The related doctrine of
collateral estoppel applies when (1) the issue for which preclusion is
sought is the same issue involved in the previous action; (2) the issue
was actually litigated; (3) the issue was determined by a valid final
judgment; and (4) determination of the issue was essential to the prior
judgment. Carolina Power and Light Co. and North Carolina Eastern
Municipal Power Agency (Shearon Harris Nuclear Power Plant), ALAB-837,
23 NRC 525, 536-37 (1986); see also Alabama Power Co. (Joseph M. Farley
Nuclear Power Plant, Units 1 and 2), ALAB-182, 7 AEC 210, 213
(1974)(collateral estoppel, unlike res judicata, does not require an
identity between two causes of action). Additionally, the party in the
second litigation, who is to be bound by the judgment of the prior
litigation, must be in privity to a party in the earlier litigation.\2\
Id. at 1560. The primary purpose of collateral estoppel and res
judicata is to ``protec[t] litigants from the burden of relitigating an
identical issue with the same party or his privy * * *.'' Parklane
Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979). Both doctrines operate
in the interest of fairness and efficient case management to bar a
party to a prior litigation from relitigating an issue or claim
resolved adverse to it in the prior litigation. Neither of these legal
doctrines provides a basis for the petitioner's rulemaking proposals,
inasmuch as the petitioner's proposed rule would attempt to bar any
party, including a nonparty to the original proceeding, from raising
the issue in the subsequent ESP proceeding whose application references
the earlier proceeding.
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\2\ The concept of privity is the same for res judicata and
collateral estoppel. It pertains to the relationship between a party
to a suit and a person who was not a party, but whose interest in
the action was such that he will be bound by the final judgment as
if he were a party.
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The Commission does not agree with the petitioner's suggestion that
the petitioner's proposed rule is akin to the License Renewal Rule, 10
CFR part 54, the generic environmental impact statement (GEIS) for
license renewal which was adopted by rule in part 51, or part 52, each
of which provide for a delineated scope of issue resolution and a bar
to litigation. The limited scope of review at license renewal under
part 54 was supported by technical bases which were referenced in the
part 54 rulemaking. (See 56 FR 6443; December 13, 1991, and 60 FR
22461; May 8, 1995). For the GEIS supporting license renewal, the
environmental issues were resolved on their merits as part of a
rulemaking adopting the GEIS. (See 10 CFR part 51, appendix B to
subpart A; 61 FR 66564; December 18, 1996). By contrast, the
petitioner's proposed rule does not include any reviews of the
technical basis or a rulemaking finding on the merits of the issues
that would be precluded in later proceedings. With respect to part 52,
the Commission explicitly stated that the rule establishes a process
for determining the adequacy of siting (including related environmental
issues) for a period of up to 20 years for the purpose of providing
issue resolution in subsequent proceedings where the ESP is referenced.
(See 54 FR at 15372, 15378; April 16, 1989). The public is provided
notice and opportunity to participate in the ESP through a request for
hearing. Thus, Part 52 establishes a regulatory regime whereby the
public has fair notice that siting issues must be raised in the ESP
proceedings, inasmuch as the Commission's resolution of the adequacy of
siting will ordinarily be binding in a subsequent proceeding
referencing that ESP. By contrast, when a current plant's siting
decisions were considered in the construction permit proceeding, there
was no knowledge or contemplation that issues reviewed and resolved in
that construction permit proceeding would be given preclusive effect in
another proceeding for an entirely different plant to be licensed to a
different location on the same site and
[[Page 57387]]
perhaps an entirely different licensee, as is contemplated under the
petitioner's proposed rule. For these reasons, the Commission does not
find that any of these rulemakings constitute a valid legal model for
the petitioner's proposed rulemaking.
Misapplication of ``Current Licensing Basis'' Concept and the Backfit
Rule
While the Commission expects that practical efficiencies, as
described above, would be realized from using previously filed
information, the petitioner's proposal to treat such information as
resolved does not represent a viable approach. Paragraphs (b) through
(f) of proposed Sec. 52.16 constitute the heart of petitioner's
proposal, viz., resolution of issues in an ESP proceeding. However, the
NRC regards the proposal as a misapplication of the ``current licensing
basis'' concept and the Backfit Rule. The petitioner's proposal uses
the term ``current licensing basis'' in the context of a site for which
a construction permit or license has been issued for a different
facility at a different location on the site. The NRC developed this
concept for renewing nuclear power plant operating licenses under 10
CFR part 54. The NRC uses the concept to determine the scope of the NRC
safety review necessary to support the NRC's decision to renew a
nuclear power plant's operating license. The NRC limited the scope of
the NRC safety review for license renewal partly because the NRC has
already made a licensing finding for the facility. Furthermore, as part
of the Part 54 rulemaking, the NRC completed a comprehensive
examination of NRC's post-licensing regulatory activities and
determined that for all facilities the current licensing bases have
been subject to continuing NRC oversight and have been appropriately
updated. Thus, a broad-scope safety review against current requirements
is unnecessary at license renewal. The renewed license is issued to the
same facility for which the NRC previously granted operating authority,
and except for aging management programs, the operating authority for
the facility under the renewed license is identical to the authority
under the previous operating license. By contrast, there is no
``current licensing basis'' for a facility not yet granted a license,
even if it is located at a site for which a construction permit or
operating license has been issued to another facility.
More importantly, information for an existing facility, even if
updated in accordance with the NRC's regulatory requirements and
oversight activities, may not be applicable from a technical basis to a
new facility to be located on the same site as an existing licensed
facility. The NRC considered two representative areas that could arise
in reviewing an ESP application, to determine if the NRC's findings on
these subjects could be used for a new facility to be constructed at
the same site without change or supplementation, in order to avoid
duplicative NRC review and approval. These areas are geotechnical
information and meteorology. In both of these areas, which would not be
expected to have significant changes from earlier reviews, the NRC
concluded that simple application of the updated information would be
insufficient to demonstrate compliance with regulatory requirements in
effect at the time of the ESP application (which petitioner's proposal
would require, see Sec. 52.16(d)), and accordingly there would be
little basis for avoiding necessary NRC review and approval.
In the geotechnical area, the NRC accepted the suitability of the
site for construction and operation of a specific facility design. The
NRC's findings were based upon the applicant's subsurface
investigations to obtain the necessary geologic and seismic data, and
the applicant's evaluations of the data to determine the suitability of
the site for that facility's reactor design. Even if the proposed ESP
is to be located precisely on the footprint of a previously-approved
facility that has not been constructed, the NRC believes that
additional information must be submitted by the applicant and evaluated
by the NRC to demonstrate that the site is suitable.
The applicant would need to demonstrate that the data originally
collected to determine the suitability of a specific reactor type to be
constructed and operated at a specific location supports the
suitability of the site for some as-yet-unspecified design. The
certified designs and contemplated designs provide a range of depths of
embedment and implications for hydrological radionuclide transport. In
addition, the applicant needs to demonstrate that the data collected
more than 20 years ago for example is still relevant, given the current
knowledge of regional seismic activity, current data collection and
analytical methods, and that the acceptance criteria of the previous
licensing action are still relevant. There have been advances in the
knowledge of seismic activity in the United States and how ground
motion propagates from the seismic source to the site, particularly in
seismic source zones such as the New Madrid and the Wabash Valley
regions in the Midwest. There have been changes in the state-of-the-art
techniques for performing subsurface investigations, (e.g., cone
penetrometer testing and suspension logging inside one of the deep
boreholes rather than across two boreholes). Furthermore, the reactor
site criteria in 10 CFR part 100 were significantly revised in 1996,
(61 FR 65176, December 11, 1996). Therefore, none of the currently
licensed nuclear plants utilized current reactor siting criteria. The
applicant would have to supplement the geotechnic information as
necessary to meet the current requirements of the revised Part 100.
The NRC would need to evaluate the geotechnical and seismic
information against the current knowledge of regional seismic activity,
the current data collection and analytical methods, and the current
acceptance criteria to make its safety determination against the
revised Part 100. Thus, even in the most favorable case, the NRC
believes that additional information, analyses and evaluation is
necessary to determine whether existing findings on geotechnical data
are applicable to a proposed facility which may be constructed on the
same footprint as a previously-approved but unconstructed facility.
These concerns about applicability of the data for the existing
facility and review effort would only increase if the ESP was for an
alternate location on the site. The distance between the existing
licensed facility (or footprint for a facility that was authorized but
not constructed) and the proposed facility may result in differences in
site suitability. Localized subsurface faults which were not adequately
characterized during the previous licensing action could bring
representativeness of the incorporated geotechnical information into
question. There may be other differences in the characteristics of
local subsurface materials (e.g., depth of bedrock and soil types)
between the existing licensed facility (or footprint for a facility
that was authorized but not constructed) and the proposed facility,
that may render inapplicable the original data and findings with
respect to geotechnical characteristics (or at least require
supplementing the original data and findings).
In the area of meteorology, the existing licensee will have
collected data that the NRC previously determined was sufficiently
representative of the meteorological environment for the (then
proposed) facility. While this data will have been supplemented to a
certain extent by data
[[Page 57388]]
collected throughout the period of operation of the facility, the type
of data that has been collected in many cases has been reduced to a
limited set necessary to support emergency action determinations. Also,
as a technical matter, data collected to support the original findings
may not be representative of current meteorological conditions at the
proposed site. Localized changes such as changes in land use, the
erection of new structures and the removal of existing structures, have
the capability to significantly alter the previous characterization of
the site's meteorology. These changes in local conditions may not be
reflected in the licensing basis for the plant, inasmuch as they are
unnecessary to support emergency action determinations. Furthermore,
the meteorological data previously collected to support the existing
facility's design may be insufficient to characterize the release
characteristics unique to the specific design (or the envelope of
designs) that may be built under the ESP. For example, the NRC guidance
contains different consequence analyses, viz., elevated release versus
ground-level release (and therefore the meteorological data necessary
to support such analyses), depending upon whether the facility is a
boiling water reactor or a pressurized water reactor. The application
and review effort would only increase if the ESP was for an alternate
location on the site. The distance between the existing licensed
facility (or footprint for a facility that was authorized but not
constructed) and the proposed facility may result in sufficient terrain
differences or orientation differences to call into question the
applicability of the meteorological data collected at the existing
facility to a facility that may be constructed under the proposed ESP.
In summary, prior NRC findings with respect to the characteristics
of a site and compliance with the then-current regulatory requirements
with respect to an existing facility, updated in accordance with
existing requirements and practices, does not ensure that the data is
sufficiently accurate and comprehensive to support a current ESP siting
determination. Thus, the petitioner's proposal to extend the concept of
a ``current licensing basis'' in the manner contemplated by its
proposed Sec. 52.16 is technically inappropriate.
The NRC also believes that the petitioner's proposal would
essentially extend the Backfit Rule to situations for which the
policies underlying the Backfit Rule are not applicable. The Backfit
Rule was intended to address a licensee's expectation of regulatory
stability. A licensee expects that the terms and conditions of the
licensee's authority under a license will not be changed after the NRC
has issued the license, except as permitted in the Backfit Rule. The
Backfit Rule established regulatory criteria to be used by the NRC in
evaluating the application to existing facilities of proposed new and
changed regulatory requirements and changes in NRC interpretations and
findings with respect to compliance with those requirements.
An ESP applicant, albeit one that already possesses a construction
permit or operating license at the site for which an ESP is being
sought, has no regulatory expectation that the NRC's determination of
whether the application complies with applicable regulatory standards
would be constrained by the ``current licensing basis'' for the
earlier-issued construction permit or operating license at the site. An
ESP application, submitted years after the issuance of the construction
permit or license for an existing facility on the site, cannot
reasonably be viewed as implicating the ``regulatory stability''
concept underlying the current Backfit Rule. The NRC further notes that
the petitioner's proposal would also permit an ESP applicant that does
not have a construction permit or license at the site to reference and
treat as resolved the ``current licensing basis'' of another licensee's
facility located at the proposed ESP site. Again, under current
regulatory practice the ESP applicant does not have any reasonable
expectation of regulatory stability with respect to its new
application, inasmuch as the NRC has not taken any licensing action for
the ESP applicant with respect to a facility located at that site.
Summary of Denial of Petitioner's ESP Proposal
In summary, most of the efficiencies and regulatory stability and
predictability which are the object of the petitioner's proposal can be
achieved under existing regulations and the guidance that the
Commission has directed the staff to prepare. In addition, key aspects
of the petition are based on a misapplication of the ``current
licensing basis'' concept and the Backfit Rule, and the petition does
not represent a viable approach for achieving the desired efficiencies.
For these reasons, the Commission is denying the ESP proposal as set
forth in the petition.
Combined Licenses
According to the petitioner's proposal, a COL applicant for a
facility to be located at a site with a currently licensed facility \3\
and a COL applicant who holds a facility license at another site, may
incorporate by reference the siting information described in proposed
Sec. 52.16 from the ``current licensing basis'' of the currently
licensed facility. The incorporation would be subject to the
requirements in proposed Sec. 52.16. See proposed Sec. 52.80(a). In
addition, a COL applicant for a facility to be located at a site where
the COL applicant currently holds a facility license, and a COL
applicant who holds a facility license at another site, may incorporate
by reference the information required to address certain NRC
requirements. These ``programmatic requirements,'' which are delineated
in proposed Sec. 52.80(b), include: (1) Emergency preparedness plans
under Sec. 50.33(g) and compliance with the emergency preparedness
provisions of 10 CFR part 50, appendix E; (2) physical security plans
under 10 CFR 50.34(c) and safeguard contingency plans under Sec.
50.34(d); (3) the quality assurance (QA) program under Sec.
50.34(f)(3)(iii); and (4) the managerial plan for design and
construction activities under Sec. 50.34(f)(3)(vii). The COL applicant
would have to supplement the incorporated information to the extent
that there are new regulations. See proposed Sec. 52.80(b)(1).
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\3\ The petitioner's proposal would, by its terms, permit an
applicant to seek a COL at a site with a facility whose license is
not held by the applicant.
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The bases for evaluating the acceptability of the COL application
would be established, in part, by the siting and programmatic
information for which the applicant proposes to incorporate by
reference from the ``current licensing basis'' of an existing licensed
facility located at the same site or another site owned or operated by
the COL applicant. See proposed Sec. 52.80(b). The information
incorporated by reference that need not be supplemented in accordance
with Sec. 52.16(b) or (c), or Sec. 52.80(b)(1), would be treated as
resolved, unless the NRC complies with the Backfit Rule. See proposed
Sec. 52.16(d). The information incorporated by reference that must be
supplemented under Sec. 52.16(b) or (c), or Sec. 52.80(b)(1) would be
subject to NRC review and approval, and the Backfit Rule would not
apply.
[[Page 57389]]
Use of Information From Prior Licensing Actions
The petitioner's proposals to give prior NRC staff regulatory
determinations and NRC adjudicatory decisions preclusive effect in
subsequent COL proceedings are apparently rooted in a desire to
maximize regulatory efficiency and predictability. The Commission
shares the petitioner's desire that the regulatory processes for review
and approval of COLs be fair and efficient and maximize regulatory
stability and predictability. Clearly, the nature of review of a
program for a new facility, which is based, in whole or in part, on a
program currently being implemented at a licensed facility, should be
different in approach than where the NRC is reviewing the adequacy of
the program for the first time. Moreover, the Commission also
recognizes that the context in which programs are reviewed for a new
plant is fundamentally different than when currently licensed plants
were being reviewed and licensed. The regulatory standards and review
criteria for many existing plants were being developed for the first
time or were evolving concurrently with the original licensing of those
plants. The NRC's review of the adequacy of an operating license
applicant's proposed operational programs occurred without extensive
operational experience or data, and therefore, took conservative
approaches to predicting the efficacy of such programs. Today, however,
the NRC has the benefit of a body of regulatory requirements developed
over a 45-year time span, and substantial experience and knowledge
collected over 40 years on over 100 plants with thousands of reactor-
years of operation. The Commission believes that the licensing review
process can take advantage of this body of information and experience
to focus the NRC's review of COL applications when the application
references an existing program currently being implemented at another
nuclear power plant. Indeed, there are substantial regulatory
advantages where an applicant proposes to implement an existing proven
program at a new plant, if the applicant demonstrates that such
reliance is appropriate and technically justified. A mature program is
likely to have been revised to reflect corrective actions and lessons
learned. Application of such a program to a similar situation at a
different nuclear power plant may be preferable to developing and
implementing a completely new, untested program. This approach would
likely avoid the need for overly conservative program elements to
compensate for unknowns and unproven assumptions or correcting errors
in ineffective programs.
Therefore, the Commission expects that the licensing review for
COLs that rely upon existing programs at other plants will draw upon,
and be informed by, the body of information associated with that
program's approval and implementation over the years, so that review
will be focused on technical and legal (or regulatory) issues of merit,
and the review will avoid re-review of matters for which there does not
appear to be significant new information or technical considerations.
In such cases, the NRC's review should be focused on determining
whether (1) there is significant new information on relevant issues;
(2) there are new methodologies or techniques for complying with
relevant regulatory requirements, developed since the original program
review and approval, which are now accepted as the ``industry norm''
for complying with that requirement; and (3) the relevant regulatory
requirements governing the evaluation and approval of that program have
changed since the earlier review and the existing program was not
required to comply with the updated requirements. The Standard Review
Plan (SRP) contains the staff's acceptance criteria that would be used
in reviewing new applications, including COLs. The Commission has
directed the staff to develop criteria for review of COL applications
when the application references programmatic information from another
license.\4\ The Commission believes that the SRP, together with the
review guidance to be developed, will provide the licensing discipline
necessary to ensure that the NRC's review of COL applications is
appropriately focused.
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\4\ The COL guidance will use the same ESP criteria for
assessing siting information developed in an earlier licensing
proceeding, as described in the section on ESPs.
---------------------------------------------------------------------------
In addition, the Commission reiterates that prior adjudicatory
holdings on matters of law have precedential weight in subsequent
adjudicatory proceedings, and that there may be occasions where res
judicata and collateral estoppel may be applied in a COL proceeding to
avoid relitigation of claims and issues raised by the same parties in
an earlier proceeding. However, for the reasons discussed in the
context of ESPs, the Commission does not believe that res judicata or
collateral estoppel would provide a legal basis for the petitioner's
rulemaking proposals on COLs.
Misapplication of ``Current Licensing Basis'' Concept and the Backfit
Rule
As with the ESPs, the Commission expects practical efficiencies may
be realized from using previously filed information. However, the
petitioner's proposal to treat such information as resolved does not
represent a viable approach. The fundamental objective of the
petitioner's proposal, viz., resolution of issues and regulatory
standards in a COL proceeding referencing an earlier licensing
decision, appears to be based on a misapplication of the ``current
licensing basis'' concept and backfitting. The ``current licensing
basis'' concept was intended only to apply to renewal of a license for
a nuclear power plant. It was not intended, and has no regulatory
meaning, in the context of licensing another separate and unrelated
facility that may be located at the same site--much less a separate
facility located at a different site. Moreover, with respect to
information on compliance with programmatic requirements which may be
incorporated by reference, proposed Sec. 52.80(b) does not require the
COL applicant to demonstrate that the programmatic information is
relevant and technically applicable to the proposed COL site and
facility.\5\ For example, under the petitioner's proposal, an applicant
referencing an emergency plan from a licensee-owned facility located at
a different site need not demonstrate that the siren alerting system
for the referenced plant would be effective at the COL site. Thus, the
petitioner's proposal to extend the ``current licensing basis'' concept
in the manner contemplated by its proposed Sec. 52.80 is not
acceptable.
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\5\ This may have been a drafting error on the part of NEI,
which could be corrected by including a provision in the proposed
Sec. 52.80 requiring the COL applicant to demonstrate that the
programmatic information from the referenced site and facility is
relevant and technically applicable to the proposed COL site and
facility. However, inclusion of such a provision would not address
the other concerns with respect to ``current licensing basis,''
backfitting, and regulatory effectiveness.
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In addition, the NRC does not believe that programmatic information
for an existing facility, even if that information was routinely
updated in accordance with the NRC's regulatory requirements (e.g., 10
CFR 50.71(e) and 10 CFR 50.59) and oversight activities, may simply be
``imported'' and used at a new facility either at the same site (or a
different site). In general, it is unlikely that such wholesale
``importation'' of programmatic information without change or
supplementation to reflect the new facility and its location can be
justified without NRC evaluation of the
[[Page 57390]]
acceptability of the information with respect to the specific
characteristics and location of the proposed facility. The NRC examined
three programmatic areas to determine whether programmatic information
for an existing facility may be used without change or supplementation
at a different facility, in order to avoid repetitive NRC review and
approval: (1) Physical protection, (2) emergency preparedness, and (3)
quality assurance (QA).
Proposed Sec. 52.80(c) would provide issue resolution for all or
part of the physical security and safeguards contingency plans
(including compliance with the provisions of 10 CFR part 73 under Sec.
50.34(c) and Sec. 50.34(d)), which would be incorporated by reference
either from an already licensed facility at the site for the proposed
COL or from a facility at another site whose license is held by the COL
applicant. However, the adequacy of physical protection commitments for
a nuclear power reactor depends on the design of the plant, the nature
of the site, the location and configuration of the plant on the site
(including its proximity to other structures), and the physical
characteristics of the surrounding land. Adding a new facility to an
existing site--even if located on the footprint of a previously
approved but never built facility--would necessitate a reevaluation of
the existing physical security plan and the safeguards contingency plan
to determine if the proposed facility meets the eight elements of
physical security in Sec. 73.55 and the five categories of information
for the safeguards contingency plan in appendix C to part 73.\6\ For
example, the existing physical barriers on the site would need to be
evaluated to assure that there are two physical barriers of the
appropriate size in place for the vital area of the proposed facility.
With respect to the physical security organization, the NRC would
evaluate whether the guard force is sufficient to perform their
assigned duties and responsibilities for both the existing and proposed
facility. Thus, it is unlikely that programmatic information on
safeguards and security for an existing facility could be used without
change or supplementation at a different facility, with a concomitant
need for NRC review and approval of that safeguards and security
program.
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\6\ The NRC notes that a proposed facility located on a site
with an existing facility could adversely affect the adequacy of the
existing facility's physical security and safeguards contingency
plans. However, unlike the provisions in proposed Sec. 52.16(b)(1)
and (4), Sec. 52.80 would not require the COL applicant to address
the impacts of the proposed facility on the existing facility,
including cumulative impacts.
---------------------------------------------------------------------------
Proposed Sec. 52.80(c) would provide issue resolution for all or
part of an emergency plan (including compliance with 10 CFR part 50,
appendix E, and the requirements for the size and configuration of
emergency planning zones under Sec. 50.33(g) and Sec.
50.34(b)(6)(v)), which would be incorporated by reference either from
an already licensed facility at the site for the proposed COL or from a
facility at another site whose license is held by the COL applicant. If
the COL applicant referenced an emergency plan for a facility at the
site for which the COL would be issued, the NRC believes that the
addition of a new facility could have a bearing on whether the existing
plans meet the 16 planning standards in 10 CFR 50.47. In addition, the
NRC must evaluate the impacts of the proposed facility on the existing
facility, as well as any impact the existing facility would have on the
proposed facility. The design of the facility determines the type and
severity of accidents which need to be addressed by the emergency plan.
If the new facility used a different design than the existing facility,
the existing emergency plan would need to be evaluated to determine
whether it can accommodate the type and severity of accidents
associated with the new facility, or whether new provisions (e.g.,
emergency action levels tailored to the particular accident sequences
of the proposed COL facility) are necessary. If the plan cannot
accommodate the accidents, the plan would have to be supplemented. For
example, with respect to emergency planning zones (EPZs), the NRC would
have to determine whether the specific location and configuration of
the proposed facility would lead to some adjustment to the existing
EPZ. Furthermore, the protective actions associated with the EPZs may
not be appropriate for a different design and radioactive inventory
associated with the proposed facility. For a COL applicant who
references an emergency plan from another site, a new EPZ would have to
be developed inasmuch as the existing facility's EPZ could not be used
at the COL site. The NRC would also have to identify and consider any
differences between the existing site and the proposed COL site in
order to determine whether the existing emergency plan meets the Sec.
50.47(b) planning standards. Therefore, the Commission does not believe
that emergency planning information for an existing facility could be
used at a different facility without change or supplementation, and a
concomitant need for NRC review and approval of that emergency planning
information.
Proposed Sec. 52.80(c) would provide issue resolution for all or
part of a QA program (including compliance with the provisions of
appendix B to part 50, under Sec. 50.34(b)(6)(ii), Sec.
50.34(f)(3)(i), Sec. 50.34(f)(3)(ii) and Sec. 50.34(f)(3)(vii)),
which would be incorporated by reference either from an already
licensed facility at the site for the proposed COL or a facility at
another site whose license is held by the COL applicant. The
petitioner's proposal does not distinguish between construction and
operation. Operational QA programs cannot be used for design and
construction of a new facility because the scope and nature of
activities performed during construction are different than during
operation. A construction QA program focuses on design, procurement,
fabrication and construction, whereas an operational QA program focuses
on maintenance, modification, and operation. Furthermore, the QA
organization is different for construction than for operation because a
construction QA program relies heavily on an architect-engineer and an
operational QA program relies on licensee personnel. If the COL
applicant intended to rely on a construction QA program which it used
in construction of an existing facility (either on site or at another
site), an extended period of time might have elapsed since the major
provisions of that construction QA program had been utilized. Thus, the
construction QA program might not address the design, procurement,
fabrication and construction activities that the COL applicant proposes
to use in the construction of the proposed facility. Moreover,
applicable industry standards and practices for construction QA have
evolved, so that the NRC may not consider the original construction QA
programs to be acceptable for constructing a new facility. For example,
American Society of Mechanical Engineers (ASME) NQA-1, ``Quality
Assurance Program Requirements for Nuclear Facilities,'' which was
referenced in the construction QA programs for many existing plants,
has undergone numerous revisions since the 1970s editions. Since the
original endorsement of these industry standards, the NRC has withdrawn
its endorsement of several quality standards as more effective
standards developed by industry groups became available. Accordingly,
any construction QA program that was used for an existing facility
could not be used
[[Page 57391]]
at a new facility without substantial change, and concomitant need for
NRC review and approval of those changes.
With respect to operational QA, the NRC would need to review the
existing operational QA program to assure the licensee's commitments in
the QA program area are applicable to the proposed facility. The
adequacy of QA program elements depends upon facility design,
fabrication and construction technologies, and how systems, structures,
and components (SSCs) and services are procured. For example, modular
construction, in which portions of the plant are prefabricated off
site, transported to the site, and integrated into the portions of the
plant constructed on site, will likely involve different QA programs,
procedures, and considerations than those for (current generation)
plants constructed entirely on site. Another example is the use of SSCs
which are procured from sources outside the United States. These
components may be manufactured, tested, and qualified to different
standards than the standards of the COL applicant's construction QA
program. While there may not be the need to make substantial changes to
an operational QA program at an existing plant, the Commission believes
that an operational QA program could not be used with some changes or
supplementation. Those changes or supplementation would need to be
reviewed and approved by the NRC.
Based upon the review of these three areas, the NRC does not
believe that it is technically possible to apply programs such as
physical protection, emergency preparedness, and QA from another
facility to a proposed COL without evaluation and consideration of the
acceptability of the information with respect to the specific
characteristics and location of the proposed facility.
The NRC also believes that the petitioner's proposal would
essentially extend the Backfit Rule to situations for which the
policies underlying the Backfit Rule are not applicable. A COL
applicant simply can have no reasonable regulatory expectation that the
NRC's determination of whether the application complies with applicable
regulatory standards would be constrained by the ``current licensing
basis'' for a previously licensed facility at that site. This is even
more true for a COL applicant referencing a previously licensed
facility at a different site.
Summary of Denial of Petitioner's COL Proposal
Most of the efficiencies and regulatory stability and
predictability which are the object of the petitioner's proposal can be
achieved under existing regulations and the guidance that the
Commission has directed the staff to prepare. In addition, several key
aspects of the petition are based upon a misapplication of the
``current licensing basis'' concept and the Backfit Rule, and the
petition does not represent a viable approach for achieving the desired
efficiencies. For these reasons, the Commission is denying the COL
proposal as set forth in the petition.
NRC Regulatory Activities as Precedents for Petitioner's Proposal
The petitioner cites several examples of NRC's practice to support
the petition. The NRC does not believe that these examples are valid
precedents for the petitioner's proposals. Each of these examples is
addressed below.
License Renewal
The petitioner suggests that its proposal is consistent with the
regulatory concepts underlying the Commission's adoption of Parts 51
and 54 for license renewal of power reactors. See petition at p.7.
As discussed in the ESP section of the Reasons for Denial, the NRC
disagrees with the petitioner's analogy.
License Amendments
The petitioner compares the issuance of an ESP to the issuance of a
license amendment for a facility, and argues that the NRC does not
conduct a fresh assessment of issues that were thoroughly considered in
initial licensing of that facility and that are not affected by the
proposed amendment. See petition at pp.7-8.
Contrary to the petitioner's suggestion, an application for an ESP
or a COL is not analogous to a license amendment. After the NRC
licenses a facility, the safety and environmental findings made when
NRC initially authorized the facility's construction and operation
remain effective throughout the term of the license, and need not be
revisited in their entirety in a subsequent license amendment
proceeding of limited scope. Only those matters which are within the
scope of the proposed license amendment and, therefore, are affected by
the amendment, fall within the scope of the NRC's consideration of the
license amendment.
The NRC's review of an ESP or COL application is the NRC's initial
licensing action. As suggested in the earlier discussion on
backfitting, the NRC's licensing decision for a facility located on a
specific site is limited to that facility. The NRC never envisioned
that its licensing decision for that facility would have any regulatory
significance years later for either a new, separate facility (likely of
different design) located at the same site, or a new, separate facility
to be located at an entirely different site.
Table S-3 and Spent Fuel Storage Casks
The petitioner states that the Table S-3 generic environmental
rulemaking and the rulemakings approving spent fuel storage casks are
regulatory precedents for making generic findings by rulemaking, and
thereby reducing the scope, or eliminating the need for consideration,
of matters in a facility-specific hearing.
The NRC does not regard these rulemakings as analogous to the
proposed Sec. Sec. 52.16 and 52.80. In the Table S-3 rulemakings, the
Commission made generic environmental findings which were applicable to
all light-water-cooled nuclear power plants. In every spent fuel
storage cask rulemaking, the Commission made generic safety and
environmental findings which were applicable to every spent fuel
storage cask constructed in accordance with the specific cask design
approved in that rulemaking. Moreover, each cask design was reviewed
and approved by the Commission through the rulemaking for generic use
across the United States. By contrast, the NRC licensing
determinations, which petitioner's proposals would permit an ESP and
COL applicant to reference, are not generic but are limited solely to a
consideration of an applicant's proposals and relevant information
available at the time of the proposal. Nor did the NRC approve the
applicant's proposals with the understanding, and notice to the public,
that they would be deemed by rule to be acceptable in a subsequent
licensing proceeding for a different facility, without a requirement
that their suitability for use in the subsequent licensing action be
assessed.
Quality Assurance and Facility Procedure Change Process
The petitioner cites the quality assurance (QA) program change
process under Sec. 50.54(a)(3)(ii), and the facility and procedure
change process under Sec. 50.59(a)(2)(ii) as examples of situations in
which the NRC by rule permits a licensee to implement changes that have
been previously approved by the NRC for use by other licensees. See
petition at p.8.
While the NRC acknowledges that these two regulatory provisions
permit a licensee to implement changes that have been previously
approved by the NRC
[[Page 57392]]
for use by other licensees, these provisions both require that the
licensee demonstrate that the proposed change previously approved by
the NRC is applicable to the licensee's facility. For example, Sec.
50.54(a)(3)(ii) requires a licensee desiring to make a QA program
change to demonstrate that ``the bases of the NRC approval are
applicable to the licensee's facility.'' Such a demonstration is not
required by proposed Sec. 52.80(b). Therefore, the petitioner's
analogy to the implementation of changes without prior NRC approval is
not valid for original licensing proceedings.
Conclusion
In conclusion, the petitioner proposes to incorporate by reference
existing information for the site and, by so doing, eliminate the need
for what it believes is duplicate applicant preparation and NRC review
of existing information relating to a licensed facility that has been
previously approved by the NRC and has been subject to a public
hearing. The Commission is denying the petition because most of the
efficiencies and regulatory stability and predictability which are the
object of the petitioner's proposal, can be achieved under existing
regulations and the guidance that the Commission has directed the staff
to prepare. In addition, key aspects of the petition are based on a
misapplication of the ``current licensing basis'' concept and the
Backfit Rule, and the petition does not represent a viable approach for
achieving the desired efficiencies.
For these reasons, the Commission denies the petition.
Dated at Rockville, Maryland, this 26th day of September, 2003.
For the Nuclear Regulatory Commission.
Annette Vietti-Cook,
Secretary of the Commission.
[FR Doc. 03-25094 Filed 10-2-03; 8:45 am]
BILLING CODE 7590-01-P