NUREG-1574, Rev. 2

Standard Review Plan on

Transfer and Amendment of

Antitrust License Conditions and

Antitrust Enforcement

Draft Report for Comment

U.S. Nuclear Regulatory Commission

Office of Nuclear Reactor Regulation F EUý

Washington, DC 20555-0001
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NUREG-1574, Rev. 2

Standard Review Plan on

Transfer and Amendment of

Antitrust License Conditions and

Antitrust Enforcement

Draft Report for Comment

Manuscript Completed:--February 2007

Date Published: February 2007

Prepared by

S. Horn and C. Pittigilo

C. Pittiglio, NRC Project Manager

Division of Policy and Rulemaking

Office of Nuclear Reactor Regulation

U.S. Nuclear Regulatory Commission

Washington, DC 20555-0001
COMMENTS ON DRAFT REPORT

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For any questions about the material in this report, please contact:

Steve R. Hom

OWFN 12 B-i

Division of Policy and Rulemaking

Office of Nuclear Reactor Regulation

U.S. Nuclear Regulatory Commission

Washington, DC 20555-0001

Phone: 301-415-1537

E-mail: SRH@nrc.gov
Abstract

Beginning in 1970, section 105 .c of the Atomic Energy Act of 1954, as amended, required that

the U.S. Nuclear Regulatory Commission (NRC or Commission) conduct antitrust reviews of

applications to construct or operate facilities licensed under section 103 of the Act. These

reviews led to the imposition of antitrust license conditions in about one-quarter of current

operating licenses. The Energy Policy Act of 2005 eliminated the NRC's antitrust review

mandate, so no new antitrust conditions will be imposed in new licenses. However, existing

antitrust license conditions were not affected and thus remain in place, subject to enforcement,

amendments, and license transfers.

In connection with license transfers, the staff s formner practice of conducting "significant

changes" antitrust reviews was eliminated under the Commission's Wolf Creek decision in 1999.

However, what to do with existing antitrust license conditions during license transfers remains an

ongoing issue. Wolf Creek provided some guidance as to the appropriate disposition of antitrust

license conditions when a facility license containing such conditions is transferred.

Outside of the context of license transfers, changed circumstances of law or fact may provide the

bases to grant an application to amend antitrust license conditions. Such applications should be

considered on a case-by-case basis, with past antitrust license amendment safety evaluations as

guidance. Particular attention should be paid to whether there have been regulatory

developments to promote competition in the relevant market since the antitrust conditions were

first imposed. Also, any comments of the Antitrust Division of the U.S. Department of Justice

should be carefuilly considered. Furthermore, the views of the public, especially competitors of

the licensee, normally should be given some weight.

The Commission has certain antitrust enforcement responsibilities and authorities. If a court of

competent jurisdiction finds that a licensee has violated the antitrust laws, the NRC may suspend

or revoke the license or take other action. Also, the Commission is to report to the Attorney

General when it appears that any utilization of special nuclear material or atomic energy violates

the antitrust laws. In addition, the Commission may enforce antitrust license conditions or

revoke the license for a licensee's noncompliance with the conditions, as well as impose civil

monetary penalties. Under 10 CFR 2.206, the Commission may take appropriate enforcement

action in response to a petition filed under that section alleging a licensee's noncompliance with

its antitrust license conditions.

iii

Contents

Abstract ...............................

A. Introduction.1

1. Purpose ........................... 1

2. Background................................................1I

B. License Transfers............................................. 2

1. "Significant Changes" Reviews No Longer Required ................. 2

2. Disposition of Existing Antitrust License Conditions When Approving

Direct License Transfers...................................... 3

C. License Amendment Applications Outside of License Transfers ........... 7

D. Antitrust Enforcement.......................................... 8

1. Overview ................................................. 8

2. Sections 105.a and 105.b of the Act.............................. 8

2. 1. Section 105.a........................................... 8

2.2. Section 105.b........................................... 9

3. Enforcement of Antitrust License Conditions ...................... 10

3.1. 2.206 Petitions ......................................... 10

3.2. Orders................................................ 11

3.3. Civil Penalties.......................................... 11

E. References.................................................. 13

V

A. INTRODUCTION

1. Purpose

This Standard Review Plan (SRP) describes the processes used by the U.S.

Nuclear Regulatory Commission (NRC or Commission) to carry out the NRC's

limited antitrust responsibilities. This SRP is to be used as a basis for considering

the appropriate disposition of antitrust license conditions when reviewing direct

license transfers, for reviewing antitrust license amendment applications, and for

implementing the NRC's antitrust enforcement responsibilities.

2. Background

Beginning in December 1970, section 1 05.c of the Atomic Energy Act of 1954, as

amended (the Act), required that the Comm-ission conduct antitrust reviews of

applications for construction permits and operating licenses to be issued under

section 103 of the Act.' As a result of these antitrust reviews, about one quarter of

all operating licenses now contain antitrust license conditions to address the

antitrust review findings made by the Commission.

In 2005, Congress passed the Energy Policy Act of 2005 (EPAct), which removed

the antitrust review authority contained in section 105 .c regarding license

applications for production or utilization facilities submitted under sections 103 or

1 04.b of the Act after the date of enactment of the EPAct. Accordingly, the NRC

no longer conducts antitrust reviews and thus will have no occasion to impose any

new antitrust license conditions.2

'fIn very limited circumstances, certain operating licenses to be issued under section 1 04.b

of the Act could have been subject to antitrust reviews. See section 105.c(3). The Act did not

and does not require an antitrust review in connection with an application to renew a facility

operating license. See Nuclear Power Plant License Renewal, Final Rule, 56 Fed. Reg. 64,943,

64,969-71 (Dec. 13, 1991).

'Regulatory Guide 9. 1, "Regulatory Staff Position Statement On Antitrust Matters,"

Regulatory Guide 9.2, Rev. 1, "Information Needed By The NRC Staff In Connection With Its

Antitrust Review of Construction Permit Applications for Nuclear Power Plants," and Regulatory

Guide 9.3, "Information Needed By The AEC Regulatory Staff In Connection With Its Antitrust

Review Of Operating License Applications For Nuclear Power Plants," were issued in

connection with the staffs antitrust review responsibilities under section 1 05.c prior to the

EPAct. In light of the discontinuation of antitrust reviews following the EPAct, these Regulatory

Guides are no longer relevant or applicable.

1
Under section 184 of the Act, no license shall be transferred unless the NRC gives

prior consent in writing. With respect to a license to be transferred that may

currently contain antitrust license conditions, the NRC must decide whether or not

such conditions should be included as part of the transferred license, deleted from

the transferred license, or modified in some fashion at the time of the transfer of

the license.

Section 105.a of the Act gives the NRC the power to suspend or revoke a license

or take other actions deemed necessary if a licensee is found by a court of

competent jurisdiction to have violated the antitrust laws (listed in this section of

the Act).

Section 105 .b of the Act requires that the Commission report to the Attorney

General of the United States any information the Commission has that a utilization

of special nuclear material or atomic energy appears to violate the antitrust laws.

Pursuant to 10 CFR 2.202, the Commission may issue an order to modify,

suspend, or revoke a license or take other action such as issuing a cease and desist

.order for a licensee's noncompliance with the terms of its antitrust license

conditions. Also, under 10 CFR 2.205, the Commission may institute an action to

assess civil penalties for such noncompliance.

B. LICENSE TRANSFERS

1. "Significant Changes" Reviews No Longer Conducted

In Kansas Gas and Electric Co., et al. (Wolf Creek Generating Station, Unit 1),

CLI-99-19, 49 NRC 441 (1999), the Commission determined that the Atomic

Energy Act does not require or authorize antitrust reviews of post-operating

license transfer applications. Previously, the staff had performed an analysis in

connection with license transfers (a staff-created variation of the "significant

changes" review referred to in section 105 .c(2) of the Act) to determine whether a

transferee should be subject to a full antitrust review. In light of WolifCreek, no

such analysis or antitrust review is undertaken when there is a license transfer

application, whether involving a direct or indirect license transfer. However, if

antitrust license conditions already exist in a license to be transferred, the staff

must determine the appropriate disposition of such conditions when the license is

transferred to a new licensee.

2
2. Disposition of Existing Antitrust License Conditions When Approving

Direct License Transfers'

As discussed earlier, certain licenses contain antitrust license conditions that were

imposed pri or to the enactment of the EPAct. If a plant operating under one of

these licenses is sold or transferred to a new licensee (a direct license transfer

action,, which would require NRC prior approval under 10 CER 50.80), the

disposition of the existing antitrust license conditions will need to be addressed

when the license is amended as part of the license transfer action to reflect the new

licensee.

It should not be assumed that the existing antitrust conditions should automatically

continue in the license and apply to the new licensee. The reason is that antitrust

conditions were put in place to address the prior actual or alleged anticompetitive

conduct of the licensee that was subject to an antitrust review Or negotiated

settlement. Accordingly, antitrust conditions are licensee-specific, rather than

plant-specific.

In Wolf Creek, CLI-99- 19, a direct license transfer case that involved existing

antitrust conditions, the Commission explained that there are alternative courses of

action in dealing with existing antitrust license conditions in direct license

transfers:

Theoretically, at least, three possibilities exist: (1) the existing license

conditions should be attached verbatim to the transferred license, (2) the

existing conditions should be rescinded or eliminated in their entirety, or (3)

'The transfer of operating authority to a non-owner operating company is a formn of a

direct license transfer. However, there are normally no requests in such applications to transfer,

delete, or modify existing antitrust conditions applicable to the existing owner/operator licensee.

Prior to Wolf Creek, the staff usually added a special antitrust license condition applicable to the

new operating licensee to preclude the new licensee from marketing or brokering power. This

was done in lieu of performing a variation of a "significant changes" antitrust review, which once

was the staffs practice for license transfers, as mentioned earlier. Since post-operating antitrust

reviews are not required or authorized under Wolf Creek, the staff no longer considers new

antitrust license conditions for new non-owner operators. See, e.g., Order Approving Transfer of

Operating Authority and Conforming Amendments (Dec. 20, 2001) for McGuire Nuclear Station,

Units 1 and 2. (Agencywide Documents and Access Management System Accession No.

ML013520127) If an existing non-owner operating licensee is transferring its authority and is

being deleted from the license, any antitrust conditions applicable only to such licensee should be

deleted.

3
the existing conditions should be modified and attached as modified to the

transferred license.

CLI-99-19, 49 NRC 466. The Commission went on to say that it did not believe it

is possible to have any one course of action for all cases:

The license conditions on their face, the nature of the license transfer,,

and perhaps the competitive situation as well, would need to be

considered to determine what actionlis] were warranted in a given

case. (For example, and without regard to the competitive situation,

(1) it might be appropriate to retain the existing conditions where they

apply only to a particular co-owner or co-operator that will remain a

licensee under the transferred license, (2) it might be appropriate to

remove the conditions where they apply to only one of several

licensees and that one will no longer be a licensee after the transfer,

and (3) it might be appropriate to remove existing conditions or

modify references to licensees in the conditions when existing

licensees to whom the conditions apply merge among themselves or

with other entities and new corporate licensees will result).

Id. As reflected in Wolf Creek, the decision on what to do with existing antitrust

license conditions must be made on a case-by-case basis.

The starting consideration for the staff is the proposed treatment of the substantive

aspects of the conditions by the applicant for the license transfer. An applicant

may request that the conditions be deleted in their entirety, be modified, or be left

unmodified in the license.

Unless there are other reasons to deny the request, if the applicant proposes that

the conditions remain in the transferred license unmodified and will thus become

applicable to the new owner/licensee, the staff should normally grant the request.'

'nsome cases, the new proposed licensee may not be able to physically comply with

antitrust conditions transferred intact. For example, antitrust conditions may have provisions

requiring the licensee to wheel power over its transmission lines, but not all new licensees may

own or control transmission facilities. In these situations, the staff should still grant a request to

transfer all of the conditions because to attempt to modify the conditions during the license

transfer raises issues that go beyond the basic conforming license amendment process for license

transfers, where the former licensee is simply deleted from the license and the new licensee is

added to the license, with no substantive modifications to the provisions of the license. A license

transferee, once it becomes the licensee, may always file an amendment request later to modify

(continued...)

4
If the application proposes modifying the existing conditions or deleting them

from the license, the staff should consider several items.

First, the staff should consider whether the proposed new licensee following a

direct license transfer has or will have any corporate relationship at all with the

transferor. For example, in the Clinton transfer approved in 1999, Illinois Power,

which held the license, had no prior or existing relationship with the buyer,

AmerGen Energy Co. LLC, a newly-formed entity with no prior record of

anticompetitive conduct owned by a Pennsylvania electric utility and a British

company. Both of these entities were clearly outside of Illinois Power's

geographic market. The staff approved the applicant's request to delete the

antitrust conditions. (ML993500275) On the other hand, in the Perry-license

transfer approved in 2005 (ML053460 182), the transferee FirstEnergy Generation

Corp. was an affiliate of the transferors, all of which were subsidiaries within the

FirstEnergy Corporation organization. The staff approved the applicant's request

to make no changes to the antitrust license conditions and to maintain them as part

of the licenses, notwithstanding that the new licensee did not possess transmission

assets and thus could not wheel power as required by some of the conditions. (In

such a case, the affected conditions could always be amended later to reflect these

circumstances. See note 4 supra.) In the Waterford transfer approved in 2005

(ML053400304), the transferee was in essence the transferor that was converted to

a limited liability company in a neighboring state. In those cases where there is an

affiliation,- the staff should determine whether the transfer is designed merely to

evade the existing antitrust conditions, if the application requests the deletion of

the conditions or a significant modification of them making them less restrictive.

The staff should normally assume that a transfer is not so designed if applicable

state law to promote competition requires a licensee to transfer generation assets

to an affiliate.

Also, the staff should consider whether the transferee has the physical assets to

comply with the antitrust conditions. For example, most existing antitrust

conditions contain wheeling requirements, which presume that the licensee owns

or controls a transmission system over which it can transmit power. Indeed,

licensees that had wheeling conditions become part of their licenses were

traditional integrated electric utilities with generation, transmission, and

distributions assets. Many transferees in recent years are generation companies

(...continued)

or delete those provisions from its transferred antitrust license conditions that no longer make

practical sense.

5
only, with no transmission facilities. Therefore, subjecting them to conditions that

contain wheeling provisions normally would not make practical sense. In the

Clinton license transfer to AmerGen, the staff noted that AmerGen did not have

transmission facilities, and therefore could not comply with the wheeling

provisions. This fact formed part of the basis to delete the conditions during the

license transfer.

In addition, the staff should inform and consider the views of the Antitrust

Division of the Department of Justice (Antitrust Division or DOJ), if any,, where

the applicant proposes to delete or modify the existing antitrust license conditions,

unless it is clear that the transferee is not affiliated in any way with the transferor.

Where it is not clear, the projects staff should send a copy of the application to the

DOJ, with the concurrence of Office of Nuclear Reactor Regulation's Division of

Policy and Rulemaking (DPR) and the Office of the General Counsel (OGC). The

cover letter should request that if the DOJ has any comments on the application,

including the proposed disposition of the existing antitrust conditions, such

comments be provided to the NRC by the close of the hearing opportunity period

set forth in the Federal Register notice of the transfer application. Any comments

by the DOJ should be carefully considered, because of their expertise in antitrust

matters and the fact that they played a primary role, as provided in section 105 .c of

the AEA, in the initial antitrust review and imposition of the antitrust conditions.

Finally, the staff should take into consideration any written comments filed by

members of the public, particularly competitors of the proposed transferee. If

there are any hearing requests filed, the staff should consider arguments set forth

in any contentions regarding the appropriate disposition of the antitrust conditions.

(The staff is expected to issue promptly its decision on license transfer requests

notwithstanding the pendency of a hearing.) The absence of written comments or

hearing requests on the disposition of the existing antitrust conditions may be

considered by the staff as an indication that such measures are not necessary today

in the particular relevant market, at least regarding the proposed transferee.

6
C. LICENSE AMENDMENT APPLICATIONS OUTSIDE OF LICENSE

TRANSFERS

Changed circumstances of law or fact may provide the bases to grant a request to

amend or delete entirely existing antitrust license conditions. An antitrust review

of the nature of those that were performed under section 105 .c of the AEA prior to

the EPAct is not required to enable the staff to act on an amendment request. The

decision whether to grant or deny an antitrust amendment request is to be based on

all of the relevant facts and circumstances, and is made on a case-by-base basis.

Staff should refer to the most recent antitrust amendment actions involving Diablo

Canyon (2006) (ML062280659), South Texas Project (2003) (ML033080427),

Wolf Creek (2002) (ML022520270), and Comanche Peak (2002)

(ML02003002 1). Also, the staff should refer to the request involving the Perry

and Davis Besse plants to suspend the antitrust conditions in the licenses, which

was the subject of litigation, for some background. See, e.g., Ohio Edison Co.

(Perry Nuclear Power Plant, Unit 1), LBP-92-32, 36 NRC 269 (1992). Particular

attention should be paid to whether there have been regulatory developments to

promote competition in the relevant market since the original imposition of the

antitrust conditions, such as nondiscriminatory open access to transmission and

mandated separation of generation and transmission facilities. Also, consideration

should be given to the age of the conditions, since historical anticompetitive

behavior does not necessarily mean that such behavior will continue long after,

particularly when the Federal Trade Commission and the DOJ continue their

primary antitrust enforcement roles.

When the amendment application is noticed in the Federal Register, a copy of the

application should be sent to the DOJ and the staff should request the DOJ's

comments, if any, by the close of the hearing opportunity period as set forth in the

Federal Register notice. The staff should consider the DOJ's comments or the

lack thereof in deciding whether to grant the amendment request.

Finally, the staff should take into consideration relevant written comments filed by

members of the public, particularly competitors of the proposed transferee. If

there are any hearing requests filed, the staff should consider arguments set forth

in any contentions regarding whether to grant the proposed amendments to the

antitrust conditions. The absence of written comments or hearing requests on the

proposed amendment of the existing antitrust conditions may be considered by the

7
staff as an indication that the proposed amendments would not adversely affect

competition in the particular relevant market.

D. ANTITRUST ENFORCEMENT

1. Overview

The Commission has certain authority or responsibilities with respect to licensees

violating the antitrust laws or violating applicable antitrust license conditions.

The Commission may sus pend or revoke a license or take other actions deemed

necessary if a licensee is found by a court of competent jurisdiction to have

violated the antitrust laws in the conduct of licensed activity (section 105 .a of the

Act); shall report to the Attorney General any information indicating that a

licensee's use of atomic energy appears to have violated the antitrust laws (section

105 .b of the Act); may modify, suspend, or revoke a license for a licensee's failure

to comply with antitrust license conditions (10 CFR 2.202 and section 186.a of the

Act); and may impose civil penalties for a failure to comply with such conditions

(10 CFR 2.205 and section 234 of the Act). In addition, 10 CFR 2.206 provides a

formal mechanism for any person to request the Executive Director for Operations

to take appropriate enforcement action relating to a licensee's noncompliance with

its antitrust conditions.

2. Sections 105.a and 105.b of the Act

2.1. Section 105.a

Section 105.a identifies specific relevant antitrust statutes and authorizes the

Commission to take appropriate enforcement action should a licensee be found by

a court to have violated such statutes. In practice, the Commission has not

established any program to monitor court actions involving licensees' violations of

antitrust laws. Rather, the Commission may respond to petitions or requests in

exercising authority under section 105 .a.

Only one section 105 .a enforcement case has come before the Commission thus

far. On May 31, 1978, counsel for several Florida cities submitted a petition for a

hearing and advised the Commission of a decision by the United States Court of

Appeals for the Fifth Circuit (Gainesville Utilities Department v. Florida Power

and Light Company, 573 F. 2d 292 (5th Cir. 1978), cert. denied, 439 U.S. 966

(1978)), which held that Florida Power and Light Company (FP&L) had conspired

8
to divide the market for electric service, in violation of section 1 of the Sherman

Act. The Court of Appeals remanded the case to the District Court for further

findings and determination of appropriate relief. The petition for a section 1 05.a

proceeding was withdrawn after the cities and FP&L settled their differences.

To date, the Commission has not delegated authority to the staff or to licensing

boards to take action with respect to section 105 .a matters. Thus, the staff has an

advisory role. In performing this role, the staff considers the phrase "in the

conduct of the licensed activity" appearing in section 105 .a as synonymous with

the phrase appearing in section 105 .c, "activities under the license." Both phrases

encompass the planning, building, and operation of nuclear power reactors and

their integration in effective bulk power supply systems.

Given that section 105 .a matters stem from actions already before the courts, and

that the NRC is not a principal antitrust enforcement agency, it is expected that

specific petitions or requests in regard to section 105 .a will be filed with the NRC

rarely.

2.2. Section 105.b

Section 105 .b requires the Commission to report apparent violations of the

antitrust laws through the use of special nuclear material or atomic energy to the

Attorney General. In fulfilling this responsibility, the Comnmission will order the

staff to refer to the Attorney General such apparent violations when they are

presented to the Commnission.

As an illustration, in an August 6, 1976 filing, a group of Florida cities petitioned

the Commission for an antitrust hearing with respect to Florida Power and Light

Company's Turkey Point 3 & 4 and St. Lucie 1 nuclear power plants. The Atomic

Safety and Licensing Board (Licensing Board) denied the cities' petition. In

Florida Power and Light Co. (St. Lucie Plant, Unit No. 1; Turkey Point Plant,

Units No. 3 and 4), ALAB-428, 6 NRC 221 (1977), the Atomic Safety and

Licensing Appeal Board (Appeal Board) affirmed the decision of the Licensing

Board, and the Commission declined to review the Appeal Board's decision.

Florida Power and Light Co., CLI-77-26, 6 NRC 538 (1977). However, the

Commission ordered the staff to promptly refer to the Attorney General the

allegations of the Florida cities, as well as any related information it had

suggesting that the licensee has violated or tended to violate the antitrust laws in

utilizing special nuclear material or atomic energy.

9
3. Enforcement of Antitrust License Conditions

3.1. 2.206 Petitions

Any person may file a petition under 10 CFR 2.206 to institute a proceeding to

modify, suspend, or revoke a license, or for any other action as may be proper,

such as the issuance of a cease and desist order, based on alleged violations by a

licensee of its antitrust license conditions. The petitioner must specify the action

requested and set forth the facts or conditions that constitute the basis for the

request.

If a petition is filed, the reviewer should determine the following:

(1) which antitrust condition(s) may be involved;

(2) the extent to which the alleged violation(s) depends on an interpretation of

antitrust law and/or the relevant antitrust license condition(s);

(3) the effect of and the reasons for the alleged violation;

(4) whether the alleged violation was willful; and

(5) what remedial actions should be taken.

The staff should consult with OGC regarding any necessary interpretations of

antitrust law and/or the antitrust condition(s) at issue.

The use of consultants or contractors may be necessary and appropriate if the

issues raised by the petition are complex.

If the staff determines that a petition received under 10 CFR 2.206 is without

merit,, a "Director's Decision" and Federal Register notice to that effect will be

prepared and issued by the Director of the Office of Nuclear Reactor Regulation.

A Director's Decision that no action will be taken is subject to the Commission's

review on its own motion under 10 CFR 2.206(c).

If the staff determines that a violation has occurred, a Notice of Violation and a

Director's Decision in accordance with 10 CFR 2.201 may be prepared by the

reviewer in conjunction with OGC and issued by the Director of the Office of

Nuclear Reactor Regulation. The notice and decision will be sent to the licensee

and the petitioner.

The licensee's response to the Notice of Violation determines the course of

subsequent actions. If the licensee agrees to take the necessary steps to comply

10
with its license conditions, the staff will ensure that the compliance steps are

carried out expeditiously. If the licensee does not agree to take the steps the staff

considers necessary to resolve the matter, or if the licensee unreasonably delays

implementing such actions, the staff may move to issue a cease and desist or other

order to the licensee.

3.2. Orders

If a licensee is found to be violating its antitrust license conditions, an order to

cease and desist would typically be considered. An order to suspend or revoke the

license may not be the most appropriate remedy because of the impact on the

overall electricity market, among other things. The reviewer should seek the

advice of the DOJ and state regulators, as well as 0CC, when fashioning an order.

An order should state the following:

(1) the violations with which the licensee is charged or other conditions

warranting an order;

(2) the action proposed by the order; and

(3) the licensee's requirements and procedural rights in responding to the order.

The order is published in the Federal Register, and copies are mailed to the

licensee and other affected parties.

The Licensee's Response

If the licensee demands a hearing, the hearing process is initiated. If the licensee

consents to the entry of an order in substantially the form proposed in the order,

the order is issued by the Director of the Office of Nuclear Reactor Regulation. If

the licensee consents to the order or does not respond within the time allotted, the

order will become final. Thereafter, the reviewer monitors the licensee's

compliance with the order.

3.3. Civil Penalties

In addition to issuing an order to cease and desist or other order, the staff may also

take action to impose civil penalties in accordance with 10 CFR 2.205 and section

234 of the Act for violations of antitrust license conditions.

The notice of violation proposing civil penalties should specify the dates and the

nature of the alleged act or omission with which the licensee is charged; describe

I1I
the circumstances; state the facts; cite the particular provisions of the license

conditions allegedly violated; and give the amount of each penalty the Director of

the Office of Nuclear Reactor Regulation proposes to impose. Within the period

prescribed in the notice, the licensee may either pay the proposed penalty or

answer the notice. If the licensee requests remission or mitigation of the proposed

penalty, the staff will consider the reasons proffered and will either withdraw the

proposed penalty or issue an order imposing the civil penalty as originally

proposed or in a mitigated amount. If the licensee fails to respond to the notice,

the reviewer will prepare and the Director of the Office of Nuclear Reactor

Regulation will issue an order imposing the civil penalty as proposed. The

licensee may pay the penalty or may request a hearing on the order imposing the

civil penalty within the period prescribed in the order.

If the licensee fails to pay the penalty or fails to demand a hearing within the

prescribed period, the Commission may refer may refer the matter to the Attorney

General for collection. Continuing violations could subject the licensee to further

civil penalties or other sanctions, such as suspension or revocation of its license.

12
E. References

1. Atomic Energy Act of 1954, as amended, section 105, 42 USC 2135.

2. Kansas Gas and Electric Co., et al. (Wolf Creek Generating Station, Unit 1),

CLI-99- 19, 49 NRC 441 (1999).

3. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and

2), CLI-03-2, 57 NRC 19 (2003).

4. NTJREG/CR-665 8,, t NRC Antitrust Licensing Actions, 1978-1996," September

1997.

13

NRC FORM 335 U.S. NUCLEAR REGULATORY COMMISSION 1. REPORT NUMBER

(9-2004) (Assigned by NRC, Add Vol., Supp., Rev.,

NRCMD 3.7 and Addendum Numbers, If any.)

BIBLIOGRAPHIC DATA SHEET

(See instructions on the reverse) NUREG-1 574, Rev. 2

2. TITLE AND SUBTITLE 3. DATE REPORT PUBLISHED

Standard Review Plan on Transfer and Amendment of Antitrust License Conditions and MONTH YEAR

Antitrust Enforcement Feray20

Draft Report for Comment 4. FIN OR GRANT NUMBER

5. AUTHOR(S) 6. TYPE OF REPORT

Steven R. Hom, Clayton L. PittiglioDrf

7. PERIOD COVERED (inclusive Dates)

8. PERFORMING ORGANIZATION - NAME AND ADDRESS (If NRC, provide Division, Office or Region, U.S. Nuclear Regulatory Commission, and mailing address; if cant ractor,

provide name and mailing address.)

Division of Policy and Rulemaking

Office of Nuclear Reactor Regulation

U.S. Nuclear Regulatory Commission

Washington, DC 20555-0001

9. SPONSORING ORGANIZATION - NAME AND ADDRESS (If NRC, type "Same as above"; if contractor, provide NRC Division, Office or Region, U.S. Nuclear Regulatory Comm~ission,

and mailing address.)

Same as 8 above.

10. SUPPLEMENTARY NOTES

11. ABSTRACT (200 words or less)

This Standard Review Plan (SRP) describes the U.S. Nuclear Regulatory Commission's (NRC's) processes used to carry out

the NRC's limited antitrust responsibilities. This SRP is to be used as a basis for considering the appropriate disposition of

antitrust license conditions when reviewing direct license transfers, for reviewing antitrust license amendment applications, and

for implementing the NRC's antitrust enforcement responsibilities.

Beginning in 1970, section 105.c of the Atomic Energy Act of 1954, as amended, required that the NRC conduct antitrust

reviews of applications to construct or operate facilities licensed under section 103 of the Act. These reviews led to the

imposition of antitrust license conditions in over one-quarter of current operating licenses. The Energy Policy Act of 2005

eliminated the NRC's antitrust review mandate, so no new antitrust conditions will be imposed in new licenses. However,

existing antitrust license conditions were not affected and thus remain in place, subject to enforcement, amendments, and

license transfers. Transfer and amendment applications should be considered on a case-by-case basis, with the Commission's

Wolf Creek and past antitrust license amendment and transfer safety evaluations as guidance. Particular attention should be

paid to whether there have been regulatory developments to promote competition in the relevant market since the antitrust

conditions were first imposed.

12. KEY WORDS/DESCRIPTORS (List words or phrases that wilt assist researchers in locating the report.) 13. AVAILABILITY STATEMENT

Antitrust, license transfers, antitrust license amendments unlimited 14. SECURITY CLASSIFICATION

(This Page)

unclassified

(This Report)

unclassified

15. NUMBER OF PAGES

16. PRICE

NRC FORM 335 (9-2004) PRINTED ON RECYCLED PAPE


Federal Recycling Program

NUREG-1574, Rev. 2

DRAFT

STANDARD REVIEW PLAN ON TRANSFER AND AMENDMENT OF

ANTITRUST LICENSE CONDITIONS AND ANTITRUST ENFORCEMENT

FEBRUARY 2007

UNITED STATES

NUCLEAR REGULATORY COMMISSION

WASHINGTON, DC 20555-0001

OFFICIAL BUSINESS