Licensing of Reactor Facilities Prior to Issuance of Operating License

HPPOS-120 PDR-9111210277

See the memorandum from G. H. Cunningham III to D. A. Nussbaumer dated April 18, 1980.

For reactors in Agreement States, it is an OELD opinion that NRC retains jurisdiction to license use of radioactive materials that are directly connected with reactor operations and are needed during the construction and preoperational phases of a reactor. HPPOS-265 contains a related topic.

Guidance was sought concerning the licensing of utilities located in Agreement States to possess and use radioactive materials at reactor facilities prior to the issuance of operating licenses. The particular question raised was whether NRC or the Agreement State was authorized to issue licenses for radioactive materials possessed and used at such facilities when the materials were directly connected with reactor operations and were needed during the construction and preoperational phases of a reactor.

It is OELD opinion that NRC retains exclusive jurisdiction to license such materials when the materials are possessed and used by the utility for the purposes described. This conclusion flows from Section 274c of the Atomic Energy Act of 1954, as amended, which provides in pertinent part that "No agreement entered into [with a state] ... shall provide for discontinuance of any authority and the Commission shall retain authority and operation of any production or utilization facility ...." The attached informal legal memo, prepared in 1969, sets forth the rationale for this conclusion.

Regulatory references: Atomic Energy Act, 10 CFR 150.15

Subject codes: 11.3, 12.2, 12.9

Applicability: Byproduct and Special Nuclear Materials