have not taken the trouble to assist the Commission in adjudicating the questions raised by the Cartwright motion and "reply pleading", but have left it to the Commission's regulatory staff to bear the brunt of doing so. Under our rules, 10 CFR § 2.730 (c), the failure of a party to answer a motion is deemed to constitute consent to it. Moreover, the proponent of official action should always assume the burden of showing that the relief he seeks should be granted. UNITED STATES ATOMIC ENERGY COMMISSION, By WOODFORD B. McCooL, Secretary. DOCKET No. 50-200 IN THE MATTER OF THE BABCOCK & WILCOX COMPANY Issued December 21, 1962 ORDER At a session of the Atomic Energy Commission held at Germantown, Maryland, on the 21st day of December, 1962, Chairman Glenn T. Seaborg and Commissioners Robert E. Wilson, Leland J. Haworth, James T. Ramey and John G. Palfrey present, The Babcock & Wilcox Company having made a motion, which was certified to the Commission by the chairman of the atomic safety and licensing board on December 14, 1962, pursuant to Section 2.718 (f) of the Commission's Rules of Practice (10 CFR), it is ORDERED that, in the discretion of the atomic safety and licensing board, any initial decision directing the issuance of a provisional construction permit in this proceeding may provide that the initial decision be effective immediately on issuance subject to (1) the filing of a petition for review by any party pursuant to Section 2.762 of the Commission's Rules of Practice (10 CFR), and (2) such further order as the Commission may make on its own motion within 30 days after the issuance of the initial decision. In the absence of any further order of the Commission, the initial decision and order shall become the final decision and order of the Commission at the end of that 30-day period. UNITED STATES ATOMIC ENERGY COMMISSION, By WOODFORD B. MCCOOL, Secretary. 247 DOCKET NO. 115-1 IN THE MATTER OF ELK RIVER POWER DEMONSTRATION REACTOR PROGRAM PROJECT Issued December 31, 1962 MEMORANDUM AND ORDER At a session of the Atomic Energy Commission held at Washington, District of Columbia on the 31st day of December, 1962, Chairman Glenn T. Seaborg, and Commissioners Robert E. Wilson, Leland J. Haworth, James T. Ramey, and John G. Palfrey present, it appearing that: 1. The presiding officer issued a "Memorandum Opinion and Interim Authorization Order" on November 5, 1962, authorizing the Division of Licensing and Regulation to issue to Allis Chalmers Manufacturing Company a provisional operating authorization for operation of the Elk River reactor, and directing that the order become effective immediately upon issuance subject to such review or other action, if any, as the Commission might accord thereto or deem appropriate, 2. Pursuant to the authority of the "Memorandum Opinion and Interim Authorization Order", the Director of the Division of Licensing and Regulation issued a provisional operating authorization on November 6, 1962, 3. The presiding officer issued an initial decision on November 16, 1962, reaffirming the findings and conclusions of the "Memorandum Opinion and Interim Authorization Order" of November 5, 1962, and authorizing the Division of Licensing and Regulation to issue to Allis Chalmers Manufacturing Company a provisional operating authorization authorizing operation of the Elk River reactor, and directing that the decision become effective immediately on issuance, subject to review on a petition for review filed by any party within 20 days after issuance, and to such further order as the Commission might enter on a petition to review or on its own motion within 45 days after issuance, 4. The Division of Licensing and Regulation has issued on November 9, 1962, Change No. 1 to the provisional operating authorization, authorizing certain revisions in the technical specifications for the period of initial loading and testing at low power, it is ORDERED THAT: 1. The findings of fact and conclusions of law of the initial decision dated November 16, 1962, are adopted; 2. The issuance of the provisional operating authorization on November 6, 1962, by the Director of the Division of Licensing and Regulation, and the issuance of Change No. 1 to the provisional operating authorization on November 9, 1962, are hereby authorized and confirmed. Our affirmance of the initial decision should not be construed as necessarily approving the "Memorandum Opinion and Interim Authorization", the ordering provisions of which were later rescinded and susperseded by the initial decision. By authorizing the issuance of a provisional operating authorization for the reactor the "Memorandum Opinion and Interim Authorization Order" was in substance an initial decision which, under the policy of the Commission embodied in 10 CFR Chapter 1, Part 115 and the explicit requirements of Section 115.80, is subject to the requirements of Subparts A, B, G and H of 10 CFR Part 2. 10 CFR Section 2.760 (c), which is in Subpart H of 10 CFR Part 2, required that an initial decision include findings, conclusions and rulings, with the reasons or basis for them, on all material issues of fact, law or discretion presented on the record. An initial decision authorizing the issuance of a provisional operating authorization, made pursuant to the authority of 10 CFR Section 115.45, thus stands on the same footing as one authorizing a provisional operating license issued under the companion section of 10 CFR Part 50 (Section 50.57), and must include the appropriate findings, conclusions and rulings, with the reasons or basis for them. It should be recognized that under the Commission's new informal procedures (27 F.R. 12184, December 8, 1962, and 10 CFR Section 2.756), the requirements for detailed findings have been considerably relaxed. In authorizing the Division of Licensing and Regulation to issue a provisional operating authorization without directing the Division to do so, both the "Memorandum Opinion" of November 5, 1962, and the initial decision raised a question as to the Division's discretion to grant or deny a license on the basis of considerations which might or might not appear on the record of the proceeding. It would have been preferable to follow the usual course contemplated by Sections 2.760, 1.25 and 1.100, by directing it to issue the provisional operating authorization, subject to any conditions prescribed by the initial decision. A further problem arising out of the initial decision was that it permitted the provisional operating authorization to become effective immediately before the Commission itself had an opportunity to determine whether to require formal review of the decision. This procedure is authorized by Section 115.45, as by Section 50.57, and is a desirable practice where no significant safety questions have been raised in the proceedings. However, where significant safety questions have been raised in the proceedings, it would appear desirable by appropriate provisions in the order to permit the Commission a brief period (say ten days) before the provisional operating license becomes effective, to determine whether to review the decision formally and whether any further order should be made on the Commission's own motion. While this may be effectuated within Section 50.57 as it now stands, the Commission has requested the staff to prepare an appropriate amendment to the regulations. UNITED STATES ATOMIC ENERGY COMMISSION, By HAROLD D. ANAMOSA, Acting Secretary. DOCKET No. 50-200 IN THE MATTER OF THE BABCOCK AND WILCOX COMPANY Issued January 14, 1963 FINDINGS AND CONCLUSIONS OF ATOMIC SAFETY AND LICENSING BOARD STATEMENT The proposed Babcock and Wilcox Test Reactor is a six megawatt (thermal), heterogenous, light water cooled and moderated, test reactor with a circulating loop through the core. The reactor is to be used for fuel irradiation experiments, and the test loop will be operated under high temperature and pressure conditions similar to those that will exist in the reactors for which the experimental fuel is designed. The reactor will be located on the site of applicant's Nuclear Development Center (NDC) in Campbell County, Virginia, approximately four miles east of Lynchburg, Virginia. The NDC presently includes other nuclear facilities of the applicant. The application for a construction permit was filed on July 10, 1962. On October 18, 1962, the Atomic Energy Commission ordered that a public hearing on the proposed construction permit be held in Lynchburg, Virginia on November 20, 1962, before an Atomic Safety and Licensing Board to be designated by the Commission. On November 13, 1962, the Commission designated a Board consisting of Arthur W. Murphy, the Chairman, Richard L. Doan and Patrick W. Howe, and adjourned the Hearing to December 3, 1962. Subsequently the Hearing was further adjourned by order of the Board to December 10, 1962. A pre-hearing conference was held on December 3, 1962 in New York City and on December 10, 1962, a public Hearing was held in Lynchburg, Virginia. No persons sought to intervene in the proceeding nor, except for the witnesses on behalf of the Applicant and the Division of Licensing and Regulations, were there any witnesses at the Hearing. The evidence considered by the Board included all of the documentary evidence produced by the applicant as well as the safety evaluations by the Hazards Evaluation Branch of the Division of Licensing and Regulation and the report of the Advisory Committee on Reactor Safeguards. Matters relevant to public safety considered by the Board in arriving at its conclusions and findings included, but were not limited to, the following: (1) the design of the proposed test reactor in relation to the prior experience of others with reactors of similar components |