October 23, 2018

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NRC Staff Views on Applying 1987 Deferred Plant Policy Statement to Part 52 Licensees

The Nuclear Regulatory Commission (NRC) staff recently published its views on the applicability of a 1987 policy statement to the holders of combined licenses (COLs) who defer or terminate the construction of new reactor projects.

During construction of nuclear power plants licensed by the NRC, plant owners occasionally decide to either postpone or stop construction. In late 1987, the Commission issued its Policy Statement on Deferred Plants (52 Fed. Reg. 38,077) to address the procedures that apply to nuclear power plants under these circumstances, including “deferred plants,” which could reactivate construction, and “terminated plants,” which have announced that construction has been permanently stopped. The policy statement addresses topics such as maintenance, preservation, and documentation of equipment; the process for reactivating construction; and withdrawal of a construction permit.

Because the Commission issued the policy statement in 1987, it necessarily addressed the licensing process and requirements under 10 CFR Part 50, rather than 10 CFR Part 52. The NRC did not promulgate Part 52 until 1989 and did not issue a COL authorizing construction and operation of a nuclear power plant until 2012. This necessitates the staff’s recent paper (ADAMS Accession No. ML18065B257) on the applicability of the 1987 policy statement to COL holders.

In short, the staff concluded that the applicable parts of the 1987 policy statement apply to COL holders. The procedures in the policy statement generally apply to COL holders in a manner similar to construction permit holders, but with some changes to account for differences in the nature of the licenses. For example, unlike construction permits, COLs do not have expiration dates, so the need for extensions during a deferral period does not exist. The staff further explained that the considerations in the policy statement would even apply to COL holders that have not yet begun licensed construction.

Also of importance, the staff confirmed that a COL holder seeking withdrawal of a COL during construction need not comply with the requirements in 10 CFR 52.110 (Termination of license). That conclusion is based on the plain language of Section 52.110, which only makes sense for a plant that has operated and is being decommissioned; the rulemaking history for Section 52.110; and past practice under Part 50. In particular, the NRC has not applied the requirements of 10 CFR 50.82 (the corresponding license termination provision under Part 50) to plants that have sought withdrawal of construction permits during construction. Instead, Section 52.110 would only apply to a COL holder after a constructed nuclear plant begins operation.

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About this Author

Stephen Burdick, Morgan Lewis, Energy & Environmental Attorney
Partner

Stephen J. Burdick counsels clients in the nuclear industry, both inside and outside the United States. A former civilian nuclear plant engineer and nuclear plant operator, Stephen advises electric utilities, reactor developers, government entities, and other companies across the nuclear fuel cycle. Stephen’s work focuses on regulatory and litigation matters before administrative bodies, such as the US Nuclear Regulatory Commission (NRC), and before relevant courts with a specific emphasis on new reactor projects, decommissioning, high level waste, medical isotopes, and...

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