U.S. Nuclear Regulatory Commission

Licensing of Reactor Facilities Prior to Issuance of Operating License

HPPOS-120 PDR-9111210277

Title: Licensing of Reactor Facilities Prior to Issuance

of Operating License

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