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# United States Nuclear Regulatory Commission Staff Practice and Procedure Digest: Commission, Appeal Board and Licensing Board Decisions — July 1972 – September 2010 (NUREG-0386, Digest 16)

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## Publication Information

**Manuscript Completed:**March 2011**Date Published:**June 2011

Office of the General CounselU.S. Nuclear Regulatory CommissionWashington, DC 20555-0001

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## Note to Users

This is the sixteenth edition of the "United States Nuclear Regulatory Commission Staff Practice and Procedure Digest." It contains a digest of significant decisions of the Commission, the Atomic Safety and Licensing Appeal Board Panel, and the Atomic Safety and Licensing Board Panel issued during the period from July 1, 1972, to September 2010, which interpret the NRC’s Rules of Practice in 10 C.F.R. Part 2. Although the Appeal Board Panel was abolished in 1991, Appeal Board precedent may still be cited, to the extent it is consistent with more recent case law and the current rules of practice. This edition of the Digest replaces the earlier editions and revisions and includes appropriate changes reflecting the amendments to the Rules of Practice. This edition updates the newly added section on the notice and procedures associated with requests for access to Sensitive Unclassified Nonsafeguards Information (SUNSI) and Safeguards Information (SGI). This update also adds sections covering the topics of deferred plant status and good cause hearings relating to extensions of construction permit (CP) completion dates and reinstatement of construction permits.

Users of the Digest should recall that the Commission adopted a comprehensive revision to its rules of practice in 2004. **See Changes to Adjudicatory Process**, 69 Fed. Reg. 2,182 (Jan. 14, 2004), **corrections issued** 69 Fed. Reg. 25,997 (May 11, 2004). Petitions for review challenging the new rules were denied in **Citizens Awareness, Inc. v. United States**, 391 F.3d 338 (1st Cir. 2004). Although our Staff has worked diligently to conform the Digest to the revised Rules of Practice, practitioners should ensure that precedent cited in the Digest is consistent with the new rules. The NRC has created several tools to aid practitioners in understanding and applying the revised Part 2. These user tools can be found at the NRC Web site at http://www.nrc.gov/about-nrc/regulatory/adjudicatory/part2revisions.html. These tools are provided for informational purposes only and are not a replacement for the regulations in 10 C.F.R. Part 2.

Practitioners should also be mindful of the adoption of two additional rulemakings that affect the Rules of Practice:

*Use of Electronic Submissions in Agency Hearings*: On August 28, 2007 (72 Fed. Reg. 49,139), the NRC published an amendment, effective October 15, 2007, to require the use of electronic submissions in all agency hearings, consistent with the existing practice for the high-level radioactive waste repository application (which is covered under a separate set of regulations). The amendments require the electronic transmission of electronic documents in submissions made to the NRC’s adjudicatory boards. Although exceptions to these requirements are established to allow paper filings in limited circumstances, the NRC maintains a strong preference for fully electronic filing and service. The final rule builds upon prior NRC rules and developments in the federal courts regarding the use of electronic submissions.

*Licenses, Certification and Approvals for Nuclear Power Plants*: On August 28, 2007 (72 Fed. Reg. 49,352), the NRC published an amendment to its regulations, effective September 27, 2007, to revise the provisions applicable to the licensing and approval processes for nuclear power plants (**i.e.**, early site permit, standard design approval, standard design certification, combined license, and manufacturing license). These amendments clarify he applicability of various requirements to each of the licensing processes by making necessary conforming amendments throughout the NRC’s regulations, including Part 2, to enhance the NRC’s regulatory effectiveness and efficiency in implementing its licensing and approval processes.

The Digest includes the text of several Commission policy statements bearing directly on adjudicatory practice. We have included the text of the Commission's 2008 **Statement of Policy on Conduct of New Reactor Licensing Proceedings**, CLI-08-07, 73 Fed. Reg. 20,963 (April 17, 2008). Although this and other policy statements are important expressions of Commission policy on the conduct of adjudicatory proceedings, practitioners should be sure to follow the specific provisions of the rules of practice in 10 C.F.R. Part 2.

The Digest is roughly structured in accordance with the chronological sequence of the nuclear facility licensing process as set forth in 10 C.F.R. Part 2. Those decisions and subject matter which did not fit easily into that structure are dealt with in a section on "general matters." Where appropriate, particular decisions are indexed under more than one heading. Some topical headings contain no decision citations or discussion. It is anticipated that future updates to the Digest will utilize these headings.

Persons using this Digest are placed on notice that it may not be used as an authoritative citation in support of any positions before the Commission or any of its adjudicatory tribunals. Persons using this Digest are also placed on notice that it is intended for use only as an initial research tool; that it may, and likely does, contain errors; and that the user should not rely on the Digest’s analyses and interpretations, but must read, analyze and rely on the user’s own analysis of the cited Commission, Appeal Board and Licensing Board decisions. Neither the United States Nuclear Regulatory Commission, nor any of its employees, makes any expressed or implied warranty or assumes liability or responsibility for the accuracy, completeness or usefulness of any material presented in the Digest.

This current edition of the Digest was prepared by the Staff of the Office of the General Counsel. I want to acknowledge particularly the contribution to this effort of Office of the General Counsel Deputy Assistant General Counsel Mary Spencer and paralegal Brian Newell in guiding this revision of the Digest. They were ably assisted by attorneys on our staff; including Catherine Kanatas, Emily Monteith, Maxwell Smith, Sara Kirkwood, Brett Klukan, Jessica Bielecki and Dan Lenehan. Theresa Mayberry assisted in preparing the manuscript for publication. We hope that the Digest will prove to be as useful to the members of the public as it has been to the members of the Office of the General Counsel.

We hope to publish an update to the Digest on an annual basis. Users of the Digest are encouraged to provide us any comments or suggestions that would improve its usefulness. You may send comments, suggestions or corrections to my attention.

Stephen G. BurnsGeneral CounselOffice of the General CounselU.S. Nuclear Regulatory CommissionWashington, DC 20555E-mail: Stephen.Burns@nrc.gov

May 2011

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