ML19253C116
| ML19253C116 | |
| Person / Time | |
|---|---|
| Site: | 05000574 |
| Issue date: | 11/19/1979 |
| From: | Becker J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 7911300005 | |
| Download: ML19253C116 (29) | |
Text
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UNITED STATES OF AMERICA November 1979 NUCLEAR REGULATORY COMMISSION
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Application No. XR-120 WESTINGHOUSE ELECTRIC CORP.
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Docket No. 110-0495
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(Exports to the Phillipines)
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Application No. XCOM-0013 NRC STAFF'S SUBMISSION IN RESPONSE TO COMMISSION'S ORDER DATED OCTOBER 19, 1979 Summary Statement Of Background An application for a license to export a light water cooled power reactor to be constructed at Napot Point, the Philippines, XR-120, was filed by Westinghouse Electric Corp. on November 18, 1976. Westinghouse subsequently filed two additional applications for licenses for export to the Philippines.
On August 3,1978, it applied for a license to export certain components for the reactor (Application No. XCOM-0013) and, on March 6,1979 it applied for a license to export fuel for the reactor (Application No. XSN!1-1471).
By a petition dated April 19, 1979, the Center for Development Policy (CDP), Jesus Nicanor P. Perlas, II:, and the Philippine Movement for Environmental Protection (PMEP) requested leave to intervene and that a hearing be held on Application No. XSNM-1471 and that the Commission con-solidate Application Nos. XSN!1-1471, XR-120 and XC0ft-0013. The petitioners requested a hearing on seven issues: (1) the nature and magnitude of seismic and geological risks posed by the reactor site; (2) the adequacy of the reactor's seismic design including considerations raised by an Inarnational Atomic Energy Agency Safety liission report requested by the Philippine Goveri' ment; (3) the 1442 067 7 9113 00C05
' likely environmental impact of the proposed reactor and disposition of its spent fuel; (4) dangers to the health and safety of Philippine citizens posed by the reactor; (5) dangers to the health and safety of U.S. citizens residing in the Philippines; (6) risks to the effective operation of U.S. military installations in the Philippines; and (7) generic safety questions posed by nuclear power plants, and by Westinghouse reactors in particular.
The NRC Staff filer an answer to the petition for leave to intervene and request for a hearing as a matter of right on May 22, 1979.
The Staff's position was that the petitioners did not have a statutory right to intervene and to a hearing pursuant to section 189a. of the Atomic Energy Act of 1954, as amended (the Act).
On September 28, 1979, the Executive Branch submitted its views on Applica-tion XR-120, recommending issuance of the license.
The NRC Staff then filed, on October 5,1979, a supplemental answer to the petition which addressed the question of whether a discretionary hearing should be neld as provided by section 304(b) of the Nuclear Non-Proliferation Act of 1978 (NNPA) and 10 CFR 9110.84 The Staff concluded that, in light c: the questions raised about the seismic and volcanic risks associated with the reactor project and their relationship with common defer.se and security, the complexities of the questions,and the need to obtain additional information to elucidate these questions, it would be in the public interest and would assist the Commission in making its independent statutory determinations required by the Act to hold a hearing on the sixth issue, in order to acquire more information, 1442 068
. as well as to clarify and ciaborate on the. 'ormation already at hand.
The Staff noted that it is reasonable to expect that the information devel-oped at the hearing may aid the Commission in making the common defense and security determination required by sections 103d. and 126 of the Act.
On October 19, 1979, the Commission issued an order in which it stated its decision that it would be appropriate to order further public pro-ceedings in the matter and that such proceedings would assist it in making the statutory determinations rcquired by the Atomic Energy Act and would be in the public interest.
The Commission considered that the issues raised fall into two general categories.
One category of issues pertains to the proper scope of the Commission's jurisdiction to examine health, safe'.y and environmental questions arising from the construction and operation of exported nuclear facilities, and the appropriate procedural framework for considering such issues, if they are found to lie within NRC authority.
The second category of issues concerns particular health, safety and environmental aspects of the Napot Point facility (fcr example, the reactor's seismic design) which the Commission has been asked to examine in the context of its export licensing review.
The Commission believed it would be useful, before ordering any proceedings on the second group of issues, to receive submissions concerning the precisc scope of the Commission's foreign health, safety and environmental jurisdiction and what pro-cedures it should adopt to govern further proceedings (if any) regard-ing the Philippine export license applications and other applications of that type.
Accordingly, the Commission specifically requested that 1442 069
. the following issues be addressed in submissions to be filed on or before November 19, 1979:
1.
Whether (and if so, to what extent) the Commission possesses the legal authority or a legal obligation to examine the health, safety and environmental impacts of an exported nuclear fscility in reaching its licensing determination (specifically, which of the seven issues raised by Petitioners a"e appropriate for Commission review,?
2.
Is the Commission's health, safety or environmental review of export license applications limited to the connection of these issues with the U.S. common defense and security or are there other legal principles which permit or require the Commission to examine these matters as part of its licensing review?
3.
What issues arising from the application to export a nuclear facility to the Philippines should the Commission examine in any future public proceecing?
4.
What procedural fomat should the Commission adopt to examine any foreign health, safety and environmental issues falling within its jurisdiction?
5.
If health, safety and environmental aspects of a U.S.-supplied nuclear facility are to be evaluated in the NRC export licensing process, in what specific manner should this review be conducted differently from the Commission's domestic reactor licensing proceedings? Should the scope of review be different, and if z4g 070 so, in what precise way?
. 6.
Are there any factual or legal considerations which would justify a different NRC health, safety or environmental review for some export license applications than tor others?
Specifically, are such considerations applicable to the present matter?
The Commission stated that, after receiving submissions on the jurisdic-tional and procedural issues, it would expeditiously review any new filings, as well as materials already submitted, announce its decision on the above and issue a further order defining the nature and scope of further proceedings (if any) to be conducted on specific issues within the Commission's licensing jurisdiction arising from the pending Westinghouse facility and component export license applications.
The Commission also consolidated its consideration of applications XR-120 and XCOM-0013.
Staff Vie-s On Issues Pronounded By The Commission Issue 1.
Whether (and if so, to what extent) the Commission possesses the legal authority or a legal obligation to examine the health, safety and environmental impacts of an exported nuclear facility in reaching its licensing determination (specifically, which of the seven issues raised by Petitioners are appropriate for Commission review)?
The NRC Staff's position as to the Commission's legal authority or legal obligation to examine the health, safety and environmental impacts of an exported nuclear facility in reaching export licensing deter-minations is stated in its Answer to the Petition for Leave to Intervene 1442 071
. dated May 22, 1979, pp. ll-lo, and its Supplemental Answer dated October 5, 1979, pp. 6-8.
The Staff's position is that the Commission has legal author-ity and a legal obligation to examine health, safety and environmental impacts abroad in making export licensing decisions only to the extent that the U.S. public health and safety, the U.S. common defense and security or the environment of the United States or the global comons would be affect-ed.
This position is based upon applicable statutes and principles of international law as interpreted in the Commission's decisions in the Edlow International case, 3 NRC 563 (1976) and the Babcock and Wilcox case, 5 NRC 1332 (1977) and the authorities cited therein.
Thus, in Edlow International, the Commission stated (3 NRC 582):
[We] agree with them [the Staff] that it would be extraordinary, as a matter of international law, to conclude that we had the authority to address ourselves to or attempt to regulate, matters
[ health effects in the vicinity of the Tarapur reactors] so clearly domestic to the Indian nation and within the purview of its own regulatory responsibilities.
The Atomic Energy Act of 1954, while requiring us to make export decisions (as all others) with a view to the
" common defense and security of the United States," notably omits reference to public health and safety in its provisions addressed to international matters. (First emphasis supplied)
With respect to environmental effects, the Commission stated, in that opinion (3 NRC 585):
When the environmental impact claimed consists of radiation hazards to Bombay and its environs, the same principles which forbid application of the Atomic Energy Act to regulate foreign health g{ 072 and safety, foreclose consideration of the environmental balance.
(Emphasis supplied)
9 In Babcock & Wilcox, the Commission reiterated this position.
In consid-ering the international reach of NEPA, the Commission analyzed the statute and its legislative history and concluded (5 NRC 1340):
Based on our reading of the statute and its legislative history, we conclude that Congress recognized the worldwide character of environmental problems, but we find no specific indication that Congress intended the United States Government to prepare environmental impact statements assessing the impact of U.S. exports on the local environment of foreign sovereigns.
Taking into consideration established principles of international law and foreign relations, the Commission stated that (5 NRC 1346):
A responsibility on the part of the U.S. government to assess impacts in nuclear export licensing would arise only if the principles militating against such an application of U.S. law were rebutted by clear statutory evidence, or modified by an agreement with the recipient country.
The legislative history of NEPA fails to supply that clear evidence and the Additional U.S. Agreement for Cooperation with EURATOM does not provide for such a review.
By enacting NEPA, Congress imposed on us no obligation to conduct the environmental impact analysis demanded in this case.
Finally, the Commission stated, with respect to censideration of public health and safety under the Atomic Energy Act (5 NRC 1353):
The Commission sees no circumstances in which the operation of the Muelheim-Kaerlich Nuclear Power Station would affect the health and safety of the U.S. popula-tion.
As we have explained in Part II [ sic] of this opinion, this Commission takes the view that the health and safety impact io foreign nations of exported nuclear facilities and materials is outside the jurisdiction of the Commission.
(Emphasis supplied) 1442 073
. The decisions noted above, rendered in 1976 and 1977, have not been reversed.
In the Staff's view the Comission is without authority to consider matters that affect only the public health and safety and the environment of a foreign country in export licensing proceedings. However, the Commission has authority to examine such effects if it can be shown that such effects would impact adversely and substantially on relations with the recipient country or on other matters involving the comon defense and security.
- Thus, in that limited context, the issues raised by the petitioners, and, in particular, the sixth issue - risks to the effective operation of U.S.
military installations in the Philippines - are appropriate for Commission review.
The Commission also has authority to examine impacts of an exported facility on the public health ano safety in the United States and on the environment of the United States and the global commons.
However, these impacts were addressed generically in ERDA-1542, Final Environmental Impact Statement on United States Nuclear Power Export Activities, April 1976.
The Commission has relied upon this document in considering such impacts.
Edlow International, 5 NRC 1364-5; Babecek & Wilcox, 5 NRC 1332,1353. Accordingly, there is no need to address that matter here.
It may be noted that Commissioner Gilinsky, in his concurring opinion in Babcock & Wilcox, expressed the anticipation that ERDA-1542 would be supplemented from time to time to reflect new developments and increased knowledge about the environmental effects of U.S.
nuclear activities. 5 NRC 1356.
ERDA-1542 has not yet been supplemented.
1442 074
g.
Issue 2.
Is the Commission's health, safety or environmental review of export license applications limited to the connection of these issues with the U.S. common defense and security or are there other legal principles which permit or require the Commission to examine these matters as part of its licensing review?
It is the Staff view, as more fully set out in the response to Issue 1, that the Commission's health, safety or environmental review of export li, cense applications is limited to the connection of such issues with the U.S. common defense and security, except to the extent that an export would affect the
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public health, safety and environment of the United States, or the environ-ment of the global commons.
Issue 3.
What issues arising from the application to export a nuclear facility to the Philippines should the Commission examine in any further public proceeding?
NRC Staff is of the view that it would be appropriate for the Commission to examine, in any future public proceeding, the issue of whether the health, safety and environmental impacts of the facility proposed to p
be exported would be such that the export would be infinical to the common defense and security.-1/
The Staff believes that the Commission has discretion to so limit the treat-ment of this issue as to avoid an intrusive, full fledged review of health, safety and environmental effects of the proposed exports in the Philippines.-2/ It is suggested that the focus in this area should be on (1) the conclusions reached by the Philippine Atomic Energy Commission, (2) the conclusions reached by the Puno Commission appointed by the Philippine Government to assess the matter, (3) the report to the Philippine Government by the IAEA Safety Mission, (4) the environmental document prepared by the Department of State and forwarded 3/
to the Commission on September 28, 1979,- and (5) other documents challenging or supporting the foregoing.
If As noted above, although the impact of an export on the public health, safety or environment of the United States and the environment of the global comons are subjects within the Commission's jurisdiction, such impacts have been addressed generically in ERDA-1542.
2_/ Concerns as to such intrusion were expressed by the Comission in the cases cited in the NRC Staff's prior submissions in the subject pro-ceeding (see Issues 1 and 2).
3/ Although the Commission is not required by Executive Order 12114, Environmental Effects Abroad of Major Federal Actions, pursuant to which the environmental document was prepared, to use the document in its export licensing proceedings, it is not precluded by the Order from using it as it deems appropriate.
1442 076
. Further, although the Commission has the responsibility for making an independent common defense and security determination in export licensing cases, the views of the Department of Defense with respect to risks to the effective operation of Subic Bay Naval Base and Clark Air Force Base, and the State Department's view as to the effect on U.S.-Philippine relations if (1) operation of the reactor resulted in significant health, safety or environmental problems in the Philippines or (2) the Comission were to deny a license desired by the Philippine Government, should assist the Commission in making its determination.
The views of those agencies on such matters should be accorded appropriate weight by the Commission.
The Office of International Programs suggests that if there are subsequent public proceedings covering health, safety and environmental factors related to this proposed export, the Comission also examine the applicability of Three Mile Island findings, the current doniestic operating licensing pause, and NRC's new domestic siting criteria to the Commission's export licensing review process for the Philippine reactor case.
Issue 4 What procedural format should the Commission adopt to examine any foreian health, safety and environmental issues falling within its jurisdiction?
Part 110 of the Commission's regulations contains a procedural format to be used in considering all issues involved in export licensing proceedings.
Sections 110.85 and 110.86 of 10 CFR Part 110 permit the Commission to direct that a' hearing either be oral or consist of written comments.
Subpart J of Part 110 includes rules for hearings, and pro-vides procedures similar to those used by legislative rather than 442 077 judicial bodies.
For example, participants and witnesses are to be
. questioned only by the presiding officer (5110.107(f)), although participants may submit written or oral questions to the presiding officer and written or oral responses and rebuttal testimony to the statements of other participants (9110.106).
No subooenas are to be granted at the reouest of participants (5110.107(b)) and the Commission's decision upon con-pletion of a hearing may be based on information beyond that in the hearing record (9110.ll3(b)).
The NRC Staff is of the view that the Commission should, if it deems that additional proceedings should be held to examine any foreign health, safety and environmental issues falling within its jurisdiction, hold a written hearing pursuant to 5110.85.
If the Commission concludes that the written submissions warr..nt oral presentations, the Staff believes that an oral hearing using the procedures set out in Suboart J of Part 110 s,ould be held.
Use of Sobpart J orocedures in any oral hearing would be consistent with the orovision of section 304(c) of the f;fiPA to the effect that procedures estab-lished oursuant to section 304(b) [i.e., revised Part 110] shall constitute the exclusive basis for hearings in nuclear export licensing proceedings before the Cormission, and notwithstanding section 189a. of the Act, shall not require the Cormission to grant any person on-the-record hearing in such a proceeding.
Further, use of such procedures is consistent with section 126b.(1) of the Act, which provides that timely consideration shall be given by the Conmission to requests for export licenses.
Some participants may urge that, because particular health, safety and environmental issues involved in the license application present technical issues involving the credibility of witnesses, cross-examination and other features of formal adjudicatory-type hearings should be utilized.
The Commission's rules in Part 110 do not provide for such procedures.
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. Participants may, pursuant to 5110.111 of Part 110, petition that a Commission rule or regulation be waived, and the CorTrission may waive a rule or regula-tion on the sole ground that, because of special circumstances concerning the subject of the hearing, application of the rule or regulation would not serve the purposes for which it was adopted.
No waiver petition has, to the know-ledge of the Staff, been filed.
There are no provisions in Part 110 that appear to authorize the Commission to wtive its own rules other than after a waiver petition under 5110.11.
Under well settled principles of administrative law, an administrative agency must scrupulously observe its promulgated procedural rules (Pacific Molasses Co. v. F.T.C., 356 F.2d 386 (5th Cir.,1966)) (see United States
- v. Nixon, 418 U.S. 683, 694-696 (1974) and Service v. Dulles, 354 U.S.
363 (1957)), even if these procedures are more liberal than legally required (see Vitarelli v. Seaton, 359 U.S. 535, 547 (1959) (Justice Frankfurter dissenting)). An agency may not substantially violate its own procedural rules (United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954))
4/
if prejudice will result.
Sangamon Valley Television Corp. v, United States 269 F.2d 221 (D.C. Cir.,1959), cert denied, 376 U.S. 915 (1964).
Federal agencies have, however, in some circumstances been permitted to depart fram their regulations where they were intended to govern internal agency procedures and not to confer important procedural benefits upon individuals or to protect the interests of objecting parties.
E.g., American Farm Lines v. Black Ball Freight Service, 397 U.S. 532 (1970).
See also, Sun Oil Co. v. F.P.C., 256 F.2d 233, 239 (5th Cir.,1958).
1442 079 4_/ The burden of showing prejudice would be on the party asserting it.
In any event, we believe that the hearing procedures presently set out in Part 110 provide an adequate mechanism, including provision for propounding questions suggested by the participants by the presiding officer, for probing into disputed factual matters.
Issue 5.
If health, safety and environmental aspects of a U.S.-:upplied nuclear facility are to be evaluated in the NRC export licensing process, in what specific manner should this review be conducted differently from the Commission's domestic reactor licensing proceedings? Should the scope of review be different, and if so, in what precise way?
The Offices of Nuclear Reactor Regulation and International Programs have contributed the following response on Issue 5:
If health, safety and environmental evaluations of U.S.-supplied nuclear facilities are to be made as part of the NRC export licensing process, there are various approaches which could be taken.
In general, these approaches could range from a detailed review similar to that done in the Comission's domestic construction permit proceedings to a limited review based on that done by the State Department under Executive Order 12114, referred to on p.10 (or possibly done in response to requests from importing countries).
Between these extremes, there is a spectrum of additional options which could be employed.
It is difficult to specify all of these options, but an illustrative set is described below.
As a general matter, the more extensive reviews would produce the greatest body of information about the design and siting of the plant and, therefore, probably a more confident assessment as to the overall plant safety.
1442 080
-IB-No export license review, including a review modeled after a complete domestic construction permit review, can result in a level of assurance regarding the safe operation of the plant comparable to that for a domestic construction permit review which is coupled with other regulatory controls, such as quality assurance checks, follow-up inspection and enforcement, etc.~5/
More extensive NRC health, safety and environmental raviews involve intrusion into the sovereignty of the recipient nation.
Moreover, there is an increased risk that NRC will be viewed as the responsible authority for implementing safety, rather than the recipient country. As a general consideration, it should be recognized that the level of assurance connected with a given review option cannot be readily quantified, and will depend on the particulars of each export licensing case, e.g., the technical competence of the recipient, country of crigin of the balance of plant, etc.
Furthermore, the Commission should recognize that the regulatory changes resulting from TMI are likely to impact our domestic licensing and review process, which, in turn, will affect any foreign health and safety review.
During this extended period when changes in the criteria for the domestic licensing process are being developed, evaluated and introduced, and new domestic licenses are being delayed, there will not be available a stable and proven set of domestic criteria against which to assess the safety of 5/ The Comission would, of course, have no jurisdictional basis to conduct reviews akin to operating license reviews once the facility had been exported beyond U.S. territorial jurisdiction.
1442 081
. foreign nuclear projects at essentially the construction permit stage.
Some may question the advisability of issuing export licenses during this transition period.
However, holding up issuance of export licenses while waiting for such criteria to be developed would introduce significant delays in the export licensing process.
With regard to resource implications, it should be recognized in general that the NRC staff specialists in health, safety and environmental matters (currently under normal strength) are fully committed at the present time to assessing the domestic implications of TMI.
Since any export license health and safety reviews would have to be perforrad by these same staff members, a tradeoff would need to be made between the effort that could be devoted to domestic work and that which could be focused on export license reviews,unless additional resources were obtained.
The major advantages and disadvantages of the options listed below which were given in SECY 78-365 are not included in this submission.
1.
Conduct the evaluation in a manner eouivalent in detail and scope to the health, safety and environmental reviews that the staff conducts in reviewing a domestic reactor construction permit apolication.
(Such an evaluation would include review of the nuclear steam supply systems, the balance of plant, the site, and all interfaces between these areas.)
NRC Staff safety and environmental evaluatMns are perfomed in domestic construction pemit proceedings to provide a basis for a staff finding, among other things, that there is reasonable assurance that a nuclear
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. power plant can be constructed and operated at the proposed location without undue risk to the health and safety of the public and to detemine the environmental impact of issuance of the construction pemit.
- However, the construction pemit review is followed by the receipt of additional infomation (10 CFR 550.35), review at the operating license stage, quality assurance requirements, operator licensing and inspection and enforcement at all stages of the licensing process.
In contrast, a one-time review of an application for an export license could not in fact provide the degree of safety assurance achieved in the whole domestic facility licensing and regulatory process, because there would be no similar ongoing review.
In other words, unless we essentially assumed all regulatory functions at the-overseas site, throughout the life of the facility, we could not assure environmental and health and safety protection at that site equivalent to that in the U.S.
However, a review of an application for an export license equivalent to the review of a construction pemit for a domestic plant would give a com-parable lecel of assurance of the adequacy of the plant design.
NRR manpower required for a domestic construction permit review covering health, safety and environmental aspects is about eleven professional man-years (without TMI impact), spread over two years.
For an export license review, both manpower requirements and review duration could be decidedly longer, because of the difficulty of communication.
A full-blown health, safety and environmental review of a facility export license application would go far beyond the environmental documents to be prepared by the State Department pursuant to E.0.126;4 referred to on p.10 above in rendering its judgment on export license applications. The unified
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procedures adopted pursuant to that order (44 F.R. 65560, November 13, 1979) do not contemplate the kind of infomation and analysis which are included in an environmental impact statement for a domestic facility license, such as need for power, alternato sites, and alternative forms of energy, but rather focus on (1) the regulatory review mechanisms or procedures adopted by the recipient country and relevant cooperative programs relating to regulatory or environmental matters between the recipient country and other countries or international organizations; (2) the conclusions of any environmental review that have been undertaken for the project in the recipient country; (3) the extent to which the recipient country has adopted standards comparable to IAEA and other internationally recognized standards; (4) whether the equipment is being manufactured to quality assurance standards comparable to those used for similar equipment in the United States; (5) based on a summary review of the literature and any other technical information readily available to the U.S. Government, a discussion of the salient characteristics of the site and of significant radioactive, chemical or thermal effects on the environment that would nomally be considered in U.S. environ-mental reviews, an assessment of any special or unique considera-tions which could pose a significant threat to the environment, and an estimate of the spent fuel that will be generated ar.d plans
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for its disposal; (6) a discussion of whether significant environ-mental effects in the recipient country which are normally considered in U.S. environmental reviews are being taken into account in planning
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the project; (7) a discussion of whether significant effects on the environment of a foreign nation not involved in the project are being taken into account in planning the project; and (8) identifi-cation of whether any significant environmen?tl impacts on the global cornons or the U.S. have been anticipated and whether they have been reviewed in accordance with NEPA and pertinent sections of the procedures.
2.
Limited review of proposed exports.
Under this option (which corresponds to Alternative 5 of SECY 78-365) the NRC would perform a limited technical review of the plant systens, designs, and equipment proposed for export, but not the site.
Except for site con-siderations the review would span the same breadth of technical issues as those evaluated for domestic ronstruction pent.it reviews, but in lesser detail and using only information available tar NRC Staff in the United States.
Preparation of an environmental impact statement, question and answer dialogue, balance of plant review and site visits would be eliminated.
Only existing, available, site information would be con-sidered inso far as it impacts on plant safety.
One might certify only that the equipment exported meets U.S. safety standards.
Upon completion of the review the NRC would issue a letter of safety findings and recommendations for use by the recipient country, as it saw fi t. The letter would delineate what safety reviews were performed on the basis of the available information, and would provide the staff's con-clusions and recommendations.
T AA2 CD
-20 It would not be feasible or desirable to attempt to approve or disapprove the safety of the exported plant in such a one-time, limited review.
- However, SECY 78-365 suggested that the conclusions and recommendations of such a review the results of which would be made public, could carry great weight with >!xporter and client, and in all likelihood noted deficiencies would be corrected prior to startup.
This review would be similar in this regard to NRC one-time reviews of non-licensed reactors of other U.S. Government agencies (DOE and D00).
The staff estimates a requirement of around 8 manyears under this option, with about 1-2 years required to complete the review. Hanpower costs can be expected to decrease as experience is gained in performing such reviews, and the details of review procedures, scope and depth of review are ironed cut.
3.
Review of assumnions, data and methodoloc'y used to match plant design to site characteristics.
This option would involve an approach aimed at ascertaining that all previously identified significant site parameters (such as external hazards related to seismic, volcanic, etc. conditions) have been treated in a fashion acceptable from the engineering standpoint, and that generally accepted design practices, assumptions, data bases, methodologies, and procedures have been used to derive plant design parameters which can be expected to result in a plant capable of operating safely at a chosen site.
The emphasis in this option would be mainly on the validation of the overall design approach and framework (i.e., that all the proper analytical and engineering steps have been proposed).
1A42 08b
. Tnis option would provide reasonable confidence to the U.S. that no previously identified external hazards had been inadvertently omitted from consideration in the plant's design.
The staff estimates that, depending on the extent and relative severity of external hazards near the proposed site, from 4 to 6 manyears of effort per review over approximately a year would be needed using this option.
No site visits are anticipated under this option.
4.
Asseis findinos of NRC experts temporarily attached to reactor projects to provide technical assistance to recipient's nuclear regulatory authority.
Under this option the NRC would not perform its own independent license reviews, but would instead draw upon the reports and judgments of technical staff members made available to the recipient on a contir.uing longer-term basis, for assistance in assuring the safety of the project.
These people, made available on either a bilateral basis or via the IAEA with the approval of the recipient g3vernment, would assist and guide the indigenous regulatory personnel in conducting all the required reviews and analyses during the planning, construction and initial operating phases of the nuclear plant.
The exact nature and details of interaction of the U.S. personnel with the indigenous staff would have to be defined on a case-by-case basis.
They could be simply advisors, as has been the case in the past, or alternatively could be accorded a senior and influential status within the recipient's organization to give greater weight to their recommendations.
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. (The recipient government may well be reluctant to allow the NRC personnel to assume a technical leadership role in thei' projects; also, for NRC staff to do so could risk NRC being viewed as taking over responsibility for project safety).
These advisors would be provided on the understanding that their reports to the recipient country should also be provided to NRC and taken into account by the Commission in its export licensing deliberations.
This option could make countries less willing to accept NRC safety advisors, since the reports of the advisors could result in slowing down or even denial of export licenses.
The staff estimates that from 3 to 4 manyears per case over approximately two years (distributed over several individuals) would be adequate to implement this option.
The effectiveness of this option toward assuring plant safety will be a function of the particular indigenous regulatory structure. An inexperienced regulatory organization will presumably require more assistance than one which has already licensed and regulated one or more nuclear plants.
However, the certainty and adequacy of follow-up actions by an inexperienced agency after support is withdrawn (i.e., following completion of the project) cannot be pre-dicted. The degree of assurance in these circumstances could vary widely.
5.
Asses", the nuclear safety capability of the recipient.
Under this option (which corresponds to Alternative 6 of SECY 78-365), as part of its export licensing review, the NRC would take into account the recipient country's nuclear safety capability, and its application of acceptable safety standards (U.S., IAEA, or equivalent).
This would 1442 088
. encompass a review of the country's overall nuclear safety program, including activities within the government and other responsible organizations.
Depend-ing on the amount of first-hand information the Comission wished to collect, the determination of the recipient's safety capability could be made on the basis of NRC staff analyses (including perhaps visits abroad )
as well as information provided by the Executive Branch.
Alternately, the NRC could rely primarily on the IAEA to verify that the recipient possesses the necessary capabilities and applies the appropriate standards of safety.
Should the review indicate that the above capabilities are not adequate for the task, one or another of the above described options could be used.
It is estimated that this option would require around 2 manyears of effort for each independent rev'iew performed by the NRC, and possibly 0.5 manyears or less per review if primary reliance is placed on the IAEA.
As noted in SECY 78-365, the staff believes, however, that the IAEA-dependent approach is not realistic, and that the NRC would most likely have to perform its own review if this option is considered at all.
6.
Take the environmental document prepared by the State Department pursuant to E.0.12114 into account by assurino that the environmental document transmitted to the recipient government by the State Department as provided M section 12 of the unified procedures points out (and possibly suggests solutions to) environmental problems identified by NRC staff in its review of the environmental document.
This option would be less intrusive into matters within the sovereign authority of a foreign nation and thus not inconsistent with the Commission's decisions in the Edlow International and Babcock & Wilco 1442 089
. cases, supra.
Further, it would not require site visits, dedication of personnel or collection of information to the degree inherent in some of the other options.
7.
Offer to provide health, safety and environmental reviews if desired by the recipient country.
Under this option, there would be no requirement for staff reviews.
In connection with its continuing bilateral and multilateral safety assistance programs, NRC would offer to perform health, safety and environmental reviews of the scope desired by the recipient country accepting the offer.
This would make available NRC Staff expertise to those recipient countries who desire to make use of it.
It would also have the advantage of possibly limiting the resources needed to perform such reviews of exported facilities.
A disadvantage of this approach is that, because of the uncertainty as to whether and how many, recipient countries would wish a U.S. review and what kind of review would be requested, the beneficial impact would be uncertain and planning for allocation of resources to perform such reviews would be difficult.
1442 090
. Recommendations If the Commission should decide that it has authority and responsibility to conduct health, safety and environmental reviews in export licensing cases, the Office of Nuclear Reactor Regulation (NRR) recommends, based solely on technical considerations, that Option 1 be considered as the only appropriate means for conducting health, safety and environmental reviews ir export licensing cases, except for those recipient countries which can be shown to possess and which have demonstrated the requisite internal capabilities to assure safety (e.g. the United V,ingdom). NRR believes that all other options may lead to circumstances in which insufficient information is avail-able to make a positive finding regarding safety.
The Office of International Programs (IP) believes that, when viewed from a policy perspective, Option 1 has major disadvantages (in terms of its foreign relaticns impact, resource and time requirements, and shifting of foreign regulatory responsibility to the U.S.) which outweigh possible safety
- ?5 -
contributions from this option.
No review performed by the NRC at the export licensing stage, including that under Option 1, can assure the overall safety of a foreign reactor project over its operating life.
IP believes that any approach selected should involve a careful balancing of relative safety assurance obta...ed and the relative costs involved.
IP sees some disadentages to all the options.
If the Commission determines, however, that a review is required, IP believes that the least intrusive approach possible should be adopted. Moreover, any review used for the PNPP project, which in many respects is not typical of reactor export cases, should not be considered as a precedent for future reviews.
IP believes that a flexible approach should be followed.
In each export case, the Commission should consider the nature of any HS&E issues in ques-tion, the capability of the recipient country to handle them, and, only if necessary, conduct a detailed but limited NRC review of selected docu-mentation relevant to these issues.
In practice this would lead to a graduated NRC review process consisting of several steps.
The starting point of the process would be an evaluation by the NRC staff of the Executive Branch Environmental Document prepared pursuant to Executive Order 12114.
Depending on the significance of the issues identified in it, the NRC could choose to accept this document jkk2
. 27.
as representing an adequate HS&E assessment, or conclude that some unresolved issues remain which need to be addressed.
In the latter case, NRC would initiate its own further review which would include, as appropriate, a combination of Options 3 ana 5.
(These reviews would also cover the review of any available official investigations or independent studies commissioned by the recipient government (e.g., IAEA reviews,etc.)
For most export cases it is believed that the first two steps indicated above should provide an adequate consideration of the HS&E aspects of a proposed export.
If, however, significant issues are not resolved to the satis-faction of the Commission, an Option 2-type limited review might be consid-ered.
However, such a review would be dependent on the availability of documentation and data, and on the cooperation of the recipient country.
Thus, IP would recommend structuring any further review in a cooperative framework in which NRC would offer to examine and critique existing 6/
documentation related to the issues of concern to the Commission.
6]
In such a framework, the NRC technical staff would prepare comments on the completeness of the submitted information (compared to a U.S. PSAR sub-mission) and prepare a staff evaluation based on the reviewed documents.
(If the design or quality of the U.S. equipment being exported is in question, this evaluation could include a detailed examination of docu-mentation from the export license applicant describing the design of the equipment and the way the design satisfies the equipment-system interface requirements.) The NRC staff findings would be forwarded to the export license applicant and the importing country in time for them to respond before the license decision is made. The full record of these comments and any responses would be made available to the Commission when the staff forwards its final recommendations on the issuance of the export license.
(All of the above would be coupled to NRC's standing offer of technical assistance to developing countries to strengthen their regula-tory programs and to resolve difficult safety issues, supplemented by the offer of safety reviews described in Option 7.)
1442 093
28 There will, of course, still remain at the conclusion of such a review (or other NRC review) some questions which have not been completely answered.
However, this proposed sequential approach could be sufficient to prcvide adequate infomation on which to base the Commission's finding regarding inimicality in a given export licensing case.
Issue 6.
Are there any factual or lacal considerations which would justify a differant_
NRC health, safety or environmental review for some export license applica-tions than for others? Specifically, are such considerations applici ble to the present matter?
If it is concluded that NRC has legal authority to conduct a health, safety or environmental review of an 2xport license application, then, in order to justify a different NRC health, safety or environmental review for some export license applications than for others, there must be a reasonable basis for differences in treatment among various license applications.
Examples of factual considerations that would justify a difference in treatment are proximity of the proposed site to U.S. military installations, impact on 9.S. public health, safety or the environment of the United States or the global commons, and differences in kinds of material or facilities.
The factual consideration of proximity of the proposed site to U.S. military installations is pertinent to the subject applications.
Further, since this consideration is related to the statutory requirement that an export not be
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inimical to the common defense and security, the basic problem of lack of legal authority is attenuated.
Respectfully submitted, k k g "0 hk oanna M. Becker Counsel for NRC Staff Dated at Bethesda, Maryland this 19th day of November,1979.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
)
Application No. XR-120 WESTINGHOUSE ELECTRIC CORP.
)
Docket No. 110-0495
)
(Exports to the Philippines)
)
Application No. XCOM-0013 CE.TIFIC/TE OF SERVICE I hereby certify that copies of "NRC STAFF'S SUBMISSION IN RESPONSE TO COMMISSION'S ORDER DATED OCTOBER 19, 1979" in the above-captioned pro-ceedings have been served on the following by deposit in the United States mail, first class or air mail, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 19th day of November,1979.
Thomas R. Asher, Esq.
Ronald J. Bettauer, Esq.
Matthew B. Bogin, Esq.
Deputy Assistant Legal Adivsor 1232 Seventeenth Street, N.W.
Department of State Washington, D. C. 20036 Washington, D. C. 20520 Barton Z. Cowan, Esq.
- Mr. Chase Stephens, Chief Eckert, Seamons, Cherin & Mellott Docketing and Service Section 42d floor, 600 Grant Street U.S. Nuclear Regulatory Commission Pittsburgn, Pennrylvania 15219 Washington, D. C. 20555 Thomas M. Daugherty, Esq.
- Samuel J. Chilk, Secretary Westinghouse Nuclear Energy Systems U. S. Nuclear Regulatory Commission P.O. Box 355 Washington, D. C. 20555 Pittsburgh, Pennsylvania 15230 Eduardo Z. Romauldez Mr. Louis Nosenzo Ambassador of the Philippines Deputy Assistant Secretary for Embassy of the Philippines Nuclear Energy and Energy Wachington, D. C. 20036 Technology Affairs Department of State Washington, D. C. 20520 A
- F__,
canna M. Becker Counsel for NRC Staff 1442 095