ML19241A635
| ML19241A635 | |
| Person / Time | |
|---|---|
| Issue date: | 05/29/1979 |
| From: | Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Gilinsky V, Hendrie J, Kennedy R NRC COMMISSION (OCM) |
| Shared Package | |
| ML19241A633 | List: |
| References | |
| REF-10CFR9.7 NUDOCS 7907090013 | |
| Download: ML19241A635 (10) | |
Text
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3, NUCLEAR REGULATORY COMMISSION
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- e May 29, 1979 MEMORANDUM FOR:
Chairman Rendrie Commissioner Gilinsky Cctaissioner Kennedy Ccmmissioner Bradford Ccemis'sioner Ahearne d)3 eonard Bickwit, L
Jr.
FROM:
General Counsel
SUBJECT:
OPTIONS FOR PLACING LIMITATIONS ON REACTOR LICENSING At the briefing on May 21, the St...'f described to the Ccamission its current freeze on the issuance of operating licenses and construction permits (hereinafter " licenses").
The Commissioners requested the Office of the General Counsel to prepare a =emorandum describing the Commission's procedural options for maintaining the Staff's current limitations on reactor licensing.
Commissioner Ahearne also requested that the CGC memorandum discuss procedural options for making the issuance of new licenses and the continued effectiveness of current operating licenses contingent on the existence of an emergency -
response plan concurred in by NRC.
In discussions following the briefing, Cemmissioner Ahearne provided further guidance as to the desired scope of the CGC memcrandum.
This memorandum, prepared with assistance frcm OELD and the Chairman of the Atomic Safety and Licensing Appeal Panel, consists of two p art s. P art I describes six cptions for fer=alizing, to a greater or lesser degree, the current Staff froeze.
P art II deals with issues of a " moratorium" nature which have not ye'
'en taken up by the Cctmis-sion.
These include four options for p ile longer-term approaches to limitations en reacter licensing; the _aplications of a freeze for en-scing licensing proceedings and for on-going ccnstructicn; and the option of making the existence of a concurred-in emergency plan a condition for maintaining current cperating licenses in force.
Put another way, Part I deals with the narrcw question:
if the Cctmissien wishes to prevent the issuance of licenses while it considers alter-native courses of action, how shculd it implement that intent?
Par CCNTACT:
?eter Crane, CGC 4-3283
.a O P {-
Stephen Cstrach, CGC p
2-3224 p7pgD 310 28,
t
'The Cc= mission 2
7.! deals with the broader question:
what-altern~ative courses of action which involve restrictions on the licensing process are available?
I.
Procedural Orciens for an Immediate Licensing Freeze The"a=== six casic procedural options available to the Ccamission for Ordering a short term halt to the issuance of new cps and OLs pending further action by the Commission. Those options, discussed belcw, are:
(1) issuance of an inteenal agency directive to the Director of NRR directing him not to issue any new licenses during the short term; (2) publication of a general statement of policy announcing that the Ccamission has determined.to issue no further licenses during the short term; (3) suspension for the short term of the rule providing.
f or the " automatic" issuance of licenses (see discussion below); (4) suspension of the automatic issuance rule and promulgation of a new rule explicitly providing for a freeze on issuance of new licenses-(5) issuance of adjudicatory orders in pending licensing proceedings which are nearing conclusion to provide that no license may be issued in the short term; and (6) issuance of non-adjudicatory instructions to the Boards.
At the outset, a brief discussion of the Commission's rules on issu-ance of licenses may be useful.
10 CFR 2.764(b) provides:
The Directer cf Nuclear Reacter Regulation... not-withstanding the filing of exceptions, shall issue a construction permit, a construction authorization, or an operating license, or amendments thereto, authorized by an initial decision, within ten (10) days from the date of 1.
2ance of the decision.
While the language en its face 1mposes absciute requirements on the Staff, as a practical matter the requirements are less stringent than they appear to be.
First, as the briefing of May 21 indicated, the rule has been construed as not applying to the issuance of cperating licenses.
This is because in cperating license proceedings the Licensing Board censiders only those issues that have been placed into controversy and these additional issues which the Board has decided it wishes to consider.
Once the Board has resolved those issues, the Director of NRR is required to consider all remaining matters, a process which may take considerable time.
To construe the rule as applying to operating license s would fly in the f ace of this Cc= mis-sien practice, and accordingly the rule has not been sc interpreted.
In the case of constructicn pernf.ts, the rule is clearly applicable.
Yet even here it may not dictate ice issuance cf permits even in the absence Of formal Ccamissicn acticn instituting a freece.
A free:e could be effected if the Staff in eacn pending case moved to delay 310 288
The Cetuissien 3
presentation of its case so that Staff's conclusions resulting frc=
the onscing TMI investigation could be included.
If the Licensing Ecard in questien denied the request and reached an initial decision, Staff could move to reconsider the action, to reopen the record, or to stay the effectiveness of the Scard's action.
In addition, Staff could seek a stay frcm the Appeal Board cr, alternatively, issue the permit and at the same time issue an order to show cause why the permit should not be revoked.
Cctmission action thus may not be necessary to blunt the force of the rule.
Since there are conceivable circumstances, however, in which the rule could operate to require the issuance of a license it is appropriate for the Cennission to examine the following courses of action with the rule in mind.
A.
Internal Memorandum The advantage of this cption is that it wculd be quick and flexible.
There are no precedural requirements for sending a directive to Staff and a decision to do so would not be subject to judicial review.
Similarly, the Octmission can =cdify or terminate a directive the mcment it decides to do so.
The maj or and decisive disadvantage of this cption. is that an internal me=crandum cannct eliminate or alter rights conferred upon a person cutside the Cc= mission by an existing regulation.
Since Section 2.764(b) confers upcn an applicant a right to a license af ter a favorable Board decision (subject tc the qualifi-ca:icns discussed above), issuance of a directive to NRR would not be deemed sufficient to extinguish that right.
3.
General Statement of Policy A general statement of policy is a formal Ccmmission pronouncement, normally published in the Federal Register, that anncunces a future ccurse of action the Cennission will pursue.
However, a separate order or regulation is usually necessary before that pclicy can be effectuated in a partica_ar case. The maj cr advantage of this cption over the first one is that it is a scre public and formal methed Of announcing a short term freeze.
Ecwever, it has the same centrciling disadvantage, since a statement of policy canr.cc le ally be used to alter an existing regula:icn, such as Section 2.764(b).
Nevertheless, we shculd note that the Cc=rission successfully imposed a freeze On all licensing by use of a general statement of policy in 1c76 c;;er the Cetrt of Appeals' 7ernen: Yankee decision > and there.was ne criticism of cr legal challenge to that action.
310 289
The Ccamission 4
C.
Suscension of Au';cmatic Issuance Rule The Commission can eliminate the Section 2.764(b) constrai_t by suspending the regulation in question.
This action would itself be in the nature of a rulemaking and would therefore be subject to judicial review.
Althcugh a suspension would have to comply with the Admin-istrative Procedure Act, we believe thac there is sufficient flexi-bility in the APA to allow such a regulation to be made immediately effective without prior notice, ccmment and publication of the rule.
The major advantage of this option is that it would clearly avoid the requirements of Section 2.764 (b) while allowing the resumption of licensing later on without the need for additional rulemaking. The only disadvantage is that, by itself, it f ails to state the nature of the Commission's policy.
~
D.
Imcosition of a Short Term Free, e by Rule This option is similar to the previous on 3 except that the rulemaking, in addition to suspending 2.764 (b), would set forth the Commission's intended course of action.
That it wculd do so ir its advantage over the previous option.
A possible disadvantage relates to the need ultimately to revoke the rule when the Ccamission is prepared to resume licensing.
While the arguments are strong that the APA would permit waiver of prior notice, ccament and publication in a rulemaking to revoke the rule, they are not as strong as in the case where the rule is originally adopted.
Scme small litigation risk is thus presented if resumed licensing, when proposed by the Ccamission, is to be made immediately effective.
This risk can be avoided by making the licensing freeze rule self-terminating after a fixed period such as one month.
The time period selected, however, could inhibit flexibility if it is too long, or could require repeated extension of the rule if too short.
E.
Issuance of Adjudicatory Orders Instead of issuing regulations, the Ccmmission eculd use its plenary adj udicacory authority to step into cn-going licensing preceedings nearing concluaicn.
In such proceedings it could crder that no licenses be issued for the shcrt term cr, alternatively, it could stay initial decisions reached by the Scards.
Such crders would be effec-tive in eliminating any possibility cf license issuance.
310 290
The Commission 5
There are a few disadvantages, however, which are associated with such a course of action.
First, there is a presumption that adj udic at ory orders in licensing proceedings are based en evidence already in the record and on which all parties have had an opportunity to comment.
Commission orders not to issue licenses could possibly be viewed as inconsistent with those principles -- although in each case a plaus-ible argument could be made that the absence of evidence in the record on the impact of TMI was itself determinative.
Second, separate orders would be a fragmented method of announcing a decision that was prcperly reached on a generic basis.
Third, by acting in an adj udi-catcry capacity the Commission would be creating a situation where the ex parte and separation of functions rules might app ly.
This might tend tc impair the freedcm of.the Commission to consult with Staff, licensees, and other interested persons in connection with a possible lifting or =cdification of the freeze.
F.
Non-Adj udicaterv Instructions to Licensing Ecards The Commission, instead of issuing crders in pending cases, could,
simply instruct its Licensing 3 cards, by way cf policy statements or memoranda, not to reach initial uecisions.
This course would have the advantage cf simplicity and would obviate the need for suspending section 2.764(b).
There are both legal and practical disadvantages to this course of action, however.
Legally, it is questionable whether it is appro-priate for the Co==1ssion, acting other than in an adj udicatory or normal rulemaking capacity, co issue mandatory instructions to its independen: Ecards.
Practically, the suspension of initial decisions would prevent Appeal Board review of issues to which the Three Mile Island experience is not relevant.
We are unaware of policy interests that would be served by stepping such reviews.
Conclusion Our vien is that, if the Cctmission wishes to give greater for=ality to the Staff freece, a ec=bination of cptions 3 (Policy Statement) and C (Suspension of Rule) is the preferred course.
The promulgation of an d-"ediately effective rule suspending 2.764(b) would eliminate all possibility that Staff would be required to issue a license. With that requirement rencved, a statement of policy announcing a freeze would bind Staff.
In that respect, this course would be preferable to optien A (Internal Memorandum) or options 3 cr C taken by themselves.
This approach is preferable to cption D (Imposition of Freeze by Rule) in that it eliminates ;he small litigation risk associated with a future rulemaking lifting the freeze if that would be conducted in the abcence of prior notice, cc==ent a d publication. The policy s atement we sugges; is arguably a " rule" witnin the meaning cf section 55 cf c
the APA, and thus wculd also be subsect to certain rulemaking recuire-ments at the time of its anncuncement and its ' evocation.
- Mcwever, 310 29i
The Commission 6
since statements of policy are expressly exempted frc= the prior notice, ccmment and publication requirements of that section, prc-cedural requirements should not be a serious problem.
We prefer the proposed course to cption E ( Adj udicatcry Orders) because it better reflects the generic nature of t's Commission's action and avoids the other problems mentioned above which are associated with adjudicatory activity.
A ccabination of cptions B and E would eliminate the first of these considerations but not the ~ other potential difficulties.
We reccamend against cption F for the reasons outlined in the above discussicn of that option.
While it is our view that a policy sta-ment ought not to be used to direct a suspension of initial decisiens by Licensing Scards, that is not to say that the statement should be devoid of guidance to the Boards.
It might be stated, for instance, that the statement should not be construed as constituting a Ccmmis-sion directive to stop initial decisionmaking.
Boards might ncnethe-less be advised that new treatment of TMI-related issues is antici-pated in the future and that Ecard efforts focused on extensive review of such issues may be wasted.
The statement might further encourage the Scards to =cve forward in their reviews of other issues.
Further discussion of the options with respect to review procedure may be fcunc in Part II B of this memorandum.
II.
Furt ier Issues Whether o? not the Cc= mission adopts one of the procedural options described in Part I, a number of issues involving the licensing process *.ould remain to be considered.
The fcllowing description of such isst es is not exhaustive.
In describing substantive Options for the Ccmm:.ssion, we have not attempted in each case to set forth the proceduri.1 apprcaches to implementing those cptions.
As is apparent from Part I, the precedural choices are in most cases numerous.
A.
Longer-term Cotions on Issuance of New Licenses For the somewhat longer term, we believe the Cc= mission has essen-tially fcur maj cr cptions.
First, the Ccamission could adept no f ormal policy.
Second, it could provide fer an absolute freeze en licensing.
Third, it could make the resumpticn cf licensing (either licensing in general cr the issuance Of specifi: licenses) contingent on particular findings by the Staff.
Finally, the Ccmmission eculd make the resumption of licensing contingent on findings by the Ccm-mission.
3102 c/,c
The Commission 7
1.
Adoption of No Formal Policy on License Issuance Under this approach, the Cc= mission would take the position that the Staff's current analysis and freeze is a satisfactory approach to the issues raised by Three Mile Island.
It would implicitly express the Ccamission's confidence that the Staff would at issue any new license that did not provide adequately for the public health and safety.
The Commission's supervisory authority over the Staff, and its power to review adjudicatory decisions of its Boards, would pro-vide assurance that new licenses could not be issued contrary to the Commission's wishes.
The information derived from Three Mile Island would thus be treated qualitatively like new information derived frca any other source, to be taken account of in the licensing process as apprcpriate.
This approach would have the virtue of simplicity, but it would provide less g?idance to the Staff, applicants and the public than would alternative a;proaches.
2.
Absciute Freeze on Licensing The Ccamission could provide for an absolute freece, either for a specified length of time er unbil further crder of the Cc=missi.n.
The specified time period could conform to the Staff's estimated three months or be lenger or shorter.
Setting a specific lergth of time for the freeze would have the virtue of providing parties and cther interested persons with a definite schedule of Commission action.
It has the disadvantage, however, that the Cc= mission may net knew until the TMI-related analysis is well under way how long a f, e e may be required.
Of course, the Cc= mis-sien could always extend any established date for lifting the freeze if that action later appeared to be warranted, but at some risk that interested persons might rely to their detriment en the Cc=missicn's originally announced schedule.
3 Licensing Centingent en Further Staff Finding _s Under this approach, the Cc= mission would direct the Staff to maintain a freeze en issuance of new licenses until Staff could make certain findings with respect to the licensing process as a whole or with regard to particular licenses.
These findings might be phrased generally, e.z. "until the Staff is satisfied that all health and safety issues raised by the event at Three Mile Island have been satisfactorily resolved with respect to the prcposed license in ques-tien".
Alternatively, the Ccamission might specify the areas in which it required that the Staff be satisfied, such as emergency response 310 2cis,
The Ccmmission d
planning, instrumentation, cperator training, or cctmunications. Still greater specificity might be required through insistence en particular standards of conduct in these areas.
This approach would have the ad'. ntage of making clear to all concerned the areas of particular interest to the Commission and the Commission's intention of making a resumption of licensing conditio:
A.
The diffi-culty of course is in deciding on the nature of the conditions in the absence of a thorough analysis of the accident.
4 Licensing Contingent on Further Cc= mis-sion Fin _ dings The Commission could take the position that no further licenses would be issued except by the Con =1ssion itself.
The Cctrission could go on to specify particular findings which would be required for license-issuance in the manner outlined in cption 3 The Staff could be instructed to propose a resur tion of licensing only when satisfied that the specified conditions had been met.
This approach would place primary reliance on the Staff's analysis, but would leave the ultimate decisien in the hands of the Commission. The Co= mission is f amiliar with the advantages and disadvantages of requiring Ccmmission approval of Staff j udgments.
E.
Inclications of a Freeze for On-going Licensing Proceedines and for Construction in Progress Since -he cccurrence of t.:e Three Mile Island accident, parties t o N?.C licensing proceedings have been raising, in a variety of ways, the issue of the relevance of the TMI events to the proceedings in which they are involved.
The Staff's May 21 description of its current freeze has underscored the issue.
Put simply, if the Staff does not propose to issue a license even when authorized to do so by a Board, one must ask whether it is desirable for the Ecard to issue suc-an authorization.
Likewise, in the abser 'e of Cctmission guidance on how TMI-related issues (e.c.,
emergency plans) should be handled, tlere is a possibility that significant time will be wasted (if proceedings have to be recpened later) anc that different Ecards may reach centra-dictory results.
In this regard, the Cc= mission would app ear to have several options.
It could decide not to address the issue, thereby implicitly leaving the issue of how to proceed to the Scards' discretion.
A second cption would be to state explicitly that it is up to the Ecards Oc exercise their discretion abcut hcw TMI-related issues shculd be handled in light of the facts of a pirticular case.
A third cpticn 310 294
-The Cct=1ssion 9
would be to identify for the buc. 2s and the parties those issues en which the Commission expects it will not be fruitful to hold hearings or issue decisions at this time, pend.dng further notice from the Cc= mission.
A fourth cption would be cessation of licensing pre-ceedings altogether, pending further evaluation of these issues.
The Three Mile Island events also raise the question of whether construction -- either construction generally, or that implicated by TMI events -- should be suspended, and whether guidance frc the Commission in this area is. desirable.
The Commission would appear to have four maj or options in this area.
First, it can take no action, relying on the fact that licensees know that construction is at their cwn risk -- that is, that there is no guarantee that they will receive an cperating license, and that the Commission might in the future require them to change or upgrade the facility before being allowed to operate.
Second, the Cer 'ssion could state explicitly that centinued construction takes place at the risk of the licensee.
Third, the Cc= mission could direct the halt of construction on specific p rtions of facilities, wher( the TMI events indicate those aspects te w potentially in need of redesign.
Fourth, the Cetmission coulu simply call a halt to all construction in progress pending further evalua5 ion of the TMI events and their relevance to on-going construction.
C.
Makine Ccntinued Effectiveness of Current Coeratin Licenses Contingent en the Existence of Concurred-in Emergencv Plans Should the Cc= mission decide that, after a certain date, the effec-tiveness of current cperating licenses should be contingent on the existence of a concurred-in emergency plan, it would appear to have twc maj or options.
Tirst, it could issue an amendment to Part 50 of its rules stating that no facility will be permitted to operate bayend a certain date unless the State in which it is located has an emer-gency plan concurred in by NRC by that date.
Such a rule would require nctice and ccm=ent procedures, but would not require an vral hearing.
Secondly, the Cc=miss_cn could impose, as a license condition for each facility located in a state presently lacking a ccncurred-in ecergency plan, the requirement that it shut down anless NRC concurs in such a plan by a certain date.
This approach was taken when the safeguards upgrade was effected. Since this procedure may require an amendment to a license and cne which involves significant hazard censideraticns, 30 days' notice and an cpportunity for a hearing =ay be required with respect to each license.
.The facilities wculd be able to operate during the amendment process, however, since their continued cperation would be consistent with the terms of the existing licenses.
cc:
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- V.
310 295
PIPING REANALYSIS STATUS REPORT AS 0F 5/29/79 SURRY SURRY BEAVER FITZPATRIC'o VALLEY 1
2 REANALYSIS TO PERFORM 83*
96 72 COMPLETED WITHIN ALLOWABLE 80 46 29 (OA ACCEPTED RESULTS)
COMPLETED ABOVE ALLOWABLE 3
0 0
(HARDWARE CHANGE REQUIRED)
PIPING SUPPORTS TO EVALUATE 741 1156 873 COMPLETED WITHIN ORIGINAL DESIGb 623 0
118 (QA ACCEPTED RESULTS)
COMPLETED ABOVE ORIGINAL DESIGN 15 0
0 (HARDWARE CHANGE REQUIRED)
REANALYSIS ESTIMATED COMPLETION 6/10/79 6/15/79
/: j79 DATE (LICENSEE ESTIMATE) 1
- PLUS 18 ADDITIONAL PROBLEMS WHICH WERE ANALYZED FOR WATER HAMMER
- UNKNOWN WTR/fm 5/29/79 310 296