ML19322C510

Discusses Scope of Review Associated W/Ol Amend Authorization

ML19322C510
Person / Time
Site:	Crane
Issue date:	03/10/1977
From:	Scinto J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Butler W Office of Nuclear Reactor Regulation
References
TASK-TF, TASK-TMR NUDOCS 8001170839
Download: ML19322C510 (4)

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, ~,INOTETO Walter Butler, Branch Chief i~... '. F

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, You have indicated recently scme con:ern about the scope of review in cQnnection with amendments to operating licenses.

,-- - -~- be helpful to you if I put a few thoughts d un which cay clarify theI hope that it may U.

nat,ure of the authorization asso:iated with an operating license amend-

.s, ment.

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".'l. 'T6 findings required by our reculations in order to support the issuance of an amend:en: to an operating license are not specifi-cally set forth in Part 50.. They are described generally in 250.91 which indicates that the C:cmission will be guided by the consider-E. ' '

.. ations which govern the issuance of initial licenses... to the extent applicable and appropriate.

Fcr operating license a=end-

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' thnts, this directs one to 550.57 which sets forth the findings required to sueport the issuance of an coerating license.

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of these findings are not relevant to amend.ents and are left cut of our standard fem of operating license amendment (e.g.,

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. the finding that construction has been completed, the finding that the applicant is technically and financially qualified, and

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the finding that the provisions of Part 140 have been satisfied).

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t However, in connection with an amendment, all of these findings are limited to subjee: mtter of the amencment. With respe:: to portions of the operating licensa not affected by the amencment.

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. 'the license continues in full force and effect as issued.

That is, the license amendment deals only with the "new" authorization representod by the amen: e:tt.

If in the course of the staff review of an amendment or in the course of any other aspe:t of the Co:nnissien's regulatory pro:ess, J

the staff receives information that would lead it to con:iude f:--

that operation of the facility or the a:tual design of the -

facility does not in fact confom to the previsiens of the license or to any applicable Ccc:ission re;;ulation, the prcper course of z.-

.i;'".~ '.N would lead to the modification or suspension or other appropriate conduct is to folicw the pro:edures set forth in Part 2 which

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action with respect to the license.

These include as appropriate notices of violation, order to show cause, order for modifications of license, civil penalties, et The precedures set forth in l

those sections specify the appr. see.

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to achieve the corrected action with respect to outstandimg opriate pro:2dures to be followed

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' authorizations or licenses of the MC.

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Giofe to Walter Butle

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March 10,1977

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/ If you uncover an aspect of the facility which you believe does not

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.';confom to the license or Co. mission regualtions wnich is not within the subject matter of tha amendment, the staff should resolve at a fairly high level what course of corrective action will be taken

?A before the amend:ent is actually issued.

It would a; pear inappropriate to provide the "new authorization" <:evered by the amendment while we were still censidering action which might elininato the underlying

..e basic authority to operate.

So we should resolve the question of violations (or safety deficiency, if any) with respe: to the under-lying license at least to the extent of detemining our course of

... '. 'action before we finalize action on the amend = cat.

To strmarize, there is a substantial procedural distinction between:

(1) the issuance of an amanc=ent in which the burden is on the applicant to dmonstrate that the new authorizatien confoms to the 1

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. ' '.. - standards of 150.57 with respe:: to the activity or, change which is to be authorized by the a endment; and (2) an order or other action taken to correct a newly identified or newly recognized violation of 1

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a license, violatica of a regulation or safety deficiency.

5.' ' I hope this sheds some iight on the scope of review involved in the authorization of an amencment. As I indicated to you, the" findings set forth in the amencment are read to be con:.lusi:ns with respect "1

. to the subject matter of the amendment.

I believe that in the present fom of license amendment this is sufficiently implicit.

However, I have brought to Mr. Engalhardt'.5 attention your suggest-ion that the standard fom of operating license acenc=ent be Todified to include langt:ge which makes cicar that the findings set i '.' -

forth therein go only.to the scope of the subject matter of the j

amendr,ent.

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.: :2. With respect to the subject mattar of the amendment, the regulations J

require a finding that tha modified facility design or operating

's technique will be such that the facility will coarate in confor ance with.the Co=ission's Rules and Regulations.

In atte.pting to make

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. '* *this determination, and in order to =ake csre efficient use of man-J.'

power, the staff relies upon and uses the various custo=s and

., ' practices reflected in regulate.y guides and the standard PavieW j

Once the staff concludes a given syste= or component satisfies 9:

.%. plan.the current version of a regulatory guide or SRP, that is about all We do to support an assertion of eccpliance with the applicable

- Rules and Regulations.

(Most of the regulatory guides and SRP.

have some self-contained reference to applicable general design criteria,etc.)

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. Note' to Walter But1.

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Although this is a general practice, it is important tn emphasize that

' compliance with stancard review plans and regulatory guides are not r.andated by the Cccmissicn.

What is mandated by the Co m.ission is cocpliance with the reculations, including applicable provisions of the general design criteria.

This distinction is important!

Co:siiance with an SRP or regulatory guide, does not autcmatically constitute a

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conclusive demonstration of co=pliance with the Cc nission regulations.

For -exampic, presently in the Hartsville proceeding, the staff has had 1/ i

' to provide substantial supelemental testimony in order to make the connection between an SRP position and requirements of the Ces41ssion

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regulations.

In a similar vein, non-confomance with an SRP or regulatory guide does not Der a c:nstitute n:n-confomance with the Com.ission regulations.

As the regulatory guides themselves indicate, they

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reflect only one satisfact:ry way of resp:nding to 'the apolicable Cocnission regulatien and there may be other acceptable whys.

Consequently, we must review a particular desien to determine whether

.cr not it confere:s to the Com.ission's regulations.

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Furthemore, it is essential to recognize that non-confomance to the I

general design criteria does not autoratically mean that the desion, ccepenent er facility cay not be licenssd.

Each of the general design criteria often indicates that alternative mothods are acpropriate.

, The introduction t the ceneral design criteria indicates that each criterion may not necessarily be required for every facility.

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' Consequently, we must iudge facility safety acainst the gener&l design cf iteria; but this is tha beginning but not the end of the inouiry.

It cay be tnat the facility can be authori:ed to ocerate with a design tha't d:es not correspond on all fours with the specific languace of a particular critcrion. Such authorization may entail alternative authorization procedures, such as an exemption, etc.

.' -.. I wish to reiterate ncn-conformance in a specific ceneral design criteHa does not automatically mean that the facility is not

' license:ble.

Indeed, we do have pmedures wnich r.ay permit it to be licensed provided the acceptability of~ operation with the partic-

,, y - ular deviation is carefully described.

The one unwaivering finding, which is reautred no matter which procedure is used, is the finding that there is reasonable assurance (that the facility can be operated without endancering public health and safety.

Previded we can indeed justify the safety of ooeration

.cf the facility, our regulations have various procedures which enabic the Comission to permit facility operat-fon. Mcwever, I repeat all

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. c'df'.these proctdures rewire a well developed basis fue concluding that

" : the plant is safe to operate. "The principal thrt.st of 'the staff review i

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Is the determination of whether tho facility is safe to operate.

The Staff's jud;:ent as to safety should be cade in light of the Comissien L

regulations, including the general design criteria; but that safety

, judgment is not limited to a simple judgment of conformance with the

.- particular criterion involved.

If it does not confor=, the staff's

c.. judgment must go beyond that to judge whether the particular plant involved is nevertheless safe to operate, and must carefully justify any such conclusions.

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rf R:gulatory guides and standard review plans, eay be used by the staff to J. J shortcut much of the ad hoc enslytical work that would otherwise be meeded, however, conformance is not oer se a conclusive demonstration

. Of co=pliance with the Cor:nission regulaYi' ens; and non-conformance with rcgulatory guides and standard review plans does not conclusively

'., demonstrate that the plant may not be licensed.

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Joseph F. Scinto Special Assistant to the

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Chief Hearing Co=sel cc:

V. Stello

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R. Boyd (P.S.

The information in the second part has s=e

. relevance for your area cf responsibility.

H wever, for

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. cases before Licensing Boards for cdjudication, the Staff

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does not have unilateral exe=ption authority., Consecuently,

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any such instance involving exemptions trill require special treatment.

However, the cases under your purview, which

. relate to the new C.P. 's and 0.L.'s, should very seldom

.. '.... involve exemptions.)

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