ML19344B368
| ML19344B368 | |
| Person / Time | |
|---|---|
| Site: | North Anna  |
| Issue date: | 08/14/1980 |
| From: | Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Ahearne J, Gilinsky V, Hendrie J NRC COMMISSION (OCM) |
| Shared Package | |
| ML19344B366 | List: |
| References | |
| NUDOCS 8008260796 | |
| Download: ML19344B368 (9) | |
Text
.
ATTACHMENT g8%q M
3 UNITED STATES E
NUCLEAR REGULATORY COMMISSION g
j WASHINGTON. D. C. 20S55
%,*...=/
August 14, 1980 MEMORANDUM FOR:
Chaiman Ahearne Commissioner Gilinsky Commissioner Hendrie Commissioner Bradford FROM:
Leonard Bickwit, Jr., Ceneral Counsel
SUBJECT:
COMPLIANCE WITH COMMISSION REGULATIONS AND FURTHER LICENSING 1
~
Our opinion has been requested on whether NRC may issue a nuclear power reactor
(
construction permit or operating license without first finding *' compliance with all applicable NRC safety regulations and, if not,'whether the safety review process, described by NRR in its memoranda to the Commission dated June 13 and l
July 23,1980, provides a legally adequate basis for an affirmative finding cf compliance.
In brief, we conclude that a finding of compliance with all applic-able safety regulations is generally a prerequisite to license issuance, and that the present safety review process provides a legally adequate basis for a compliance finding.
However, we see need for improvement in the review process in this regard, and (along with OPE) make some recommendations for improvement. Our reasons follow.
1.
May NRC issue a nuclear power reactor construction permit or operating license without first finding compliance with all applicable NRC safety i
regulations?
a.
Doerating Licenses Section 185 of the Atomic Energy Act provides that operating licenses are issued "upon finding that the facility authorized has been constructed and will operate in conformity with... the rules and regulations of the Commission." Thus the Act itself requires a finding of compliance with applicabic regulations before operating license issuance. The NRC's regulations are to the same effect, although the wording is varied. Under 10 CFR 50.57(a)(1) and (2), an operating license may be issued upon finding that construction has been substantially completed "in confomity with... the rules and regulations of the Commission" and that the facility will operate "in conformity with... the rules and regula-tions of the Commission." 10 CFR 50.50 is of similar effect.
10 CFR 50.40 and l
50.57(a)(3) set forth a standard for operating license issuance that there be
" reasonable assurance" that the applicant and the activities under the license,
Contact:
Martin G. Malsch, CGC, 41465 8008260]7g 1
c will be in ce=pliance with the Cc==ission's rules and regulations.1/ Moreover, Cc==ission adjudicatory decisions are clear that cc=pliance with the Ccamissien's regulations is essential :c a deter =1 nation of adequate protecticn of the public health and safety under the Atc=ic Energy Act.
E.c., Maine Yankee Atomic pcwer Cc=cany (Maine Yankee Atc=ic ?cwer Station), ALA5-151, 5 AEC 1C03,1009-1011 (1973). Thus, under the Ate =ic Energy Act, and the Ccm=ission's cwn regulations and adjudicatcry decisions, no operating license may be issued unless and until the Cecnission has fcund that the facility is in conformity vith the Cccuissicn's safety regulations.
b.
Constructicn Per=its There is no specific prevision in the Atomic Energy Act which states that a construction pe:=it may be issued only if the Cc= ission finds ce=pliance with applicable regulations. 2/ Rcwever,10 CFR 50.50, which is ecually acplicable to censtruction permits and cperating licenses, states that the Cecnissien will issue a ccnstructicn per=it ucon deter =ination that the application "=eets the standards and require =ents of the... regulaticns." Thus, the clear i= cort of,
the NRC's regulations is tha sc=e finding of ccecliance is a prerequisite to construction per=it issuance. 3/ The actual finding recuired becc=es =cre clear if cne examines 10 CFR 50.35.
Under 10 CFR 50.35 a ccnstruction pencit may be issued with " technical er design infer =ation... required to ce=clete the safety analysis" =issing.
In effect, 50.35 al10ws a ccnstruction permit to be issued withcut a full finding that plant operatica would be in ec=pliance with the regulations, provided tha: three 1/
Each operating license issued by the Cc==ission specifically states that the Cc==ission has found that the application "cc= plies with... the Cc==ission's rules and regulatiens", that ecnstructicn has been substan-tially ec=pleted "in confor=ity with... the rules ard regulatiens of the Cc==issien", that the facility will operate "in confor=ity with... the rules and regulations of the Cc==ission", and tha: there is "reascnable assurance" tnat the licensed activities "will be conducted in ccepliance l
with the rules and regulatiens of the Cc==issien."
-2/
Section IC3b of the Act states that secticn 103 licenses shall issue to nese "who are ecuipped to cbserve and wne agree to observe such safety l
standarcs... as the Cc==issicn may by rule establisn."
.n;s previs en l
I apclies Oc both operating licenses and ccnstruction cer=its.
See section l
185.
No similar prevision a pears fer section ICc licenses, al:ncugn secticn 10ib indicates that licenses under that section are subject to
" minimum a= cunt of such regulations." All licenses and construction per=its may be revoked under section 155 for failure te cc= ply witn NRC regulations.
3/
Also, the typical construction permit centains a statement that the Cc==issien nas icund that the applica:icn ec= plies with the Cc==ission's regulatiens.
l
3 conditions are met.
First, the application itself must contain all the design and other infomation required for construction pemit applications by the regulations (e.o.,10 CFR 50.34(a)).
In some areas (e.o.,10 CFR Part 100 site suitability) it is clear that the infomation must be sufficiently complete to make a full compliance finding. Second, there must be reasonable assurance that any outstanding compliance issue will be satisfactorily resolved prior to operation. Third, the Commission must be able to make the overall finding that there is reasonable assurance that plant operation will not present undue risk to public health and safety. Porter County v. NRC, 606 F.2d 1363 (D.C. Cir.
1979); Gulf States Utilities Co. (River Send Station, Units 1 and 2), ALAB-444, 5 NRC 760 (1977).,4j 2.
Does the NRC licensing review process provide a legally adequate basis
. for a finding of compliance with all applicable safety regulations?
The NRC staff's safety review process is generally described in NRR's memoranda
).
to the Commission, dated June 13 and July 23, 1980. We have reviewed these memoranda, and discussed them with the NRR staff.
Based on the review and discussions we conclude that the review process does provide a. legally adequate basis for a compliance finding. However, our review focused on the general adequacy of the review process standing by itself as the only evidence of compliance or noncompliance. - Whether the review process described is sufficient in the face of specific evidence of noncompliance in a given case can only be judged on a case basis. 5/ Moreover, our review was of necessity a general one.
We cannot preclude the possibility that a detailed review of a particular case wo.uld reveal some significant problems in some limited areas.
Each staff safety evaluation will contain specific evidence of compliance that must also be judged on a case basis.
l The NRR memoranda and discussions suggest two possible problems with the safety review process as it is presently conducted. The first problem is that the review process is an audit process. As NRR stated in its July 23, 1980 memoran-dum, "not every system and not every ' nut and bolt' is explicitly evaluated."
The second problem is that the review process focuses on compliance with the 4_/
The Commission may also grant. exemptions from its regulations applicable to construction pemits and operating licenses under 10 CFR 50.12.
5f When there is conflicting evidence on a question of compliance witn the regulations, the decisionmaker may be confronted with the question of whether there must be compliance "beyond a reasonable doubt", compliance "by a preponderance" or by a " clear preponderance" of the evidence, l
compliance "beyond a reasonable doubt", " reasonable assurance" of compli-ance, or compliance by some other measure of proof. We do not reach this question here, since we are examining the review process in a general sense only to see if it is capable of presenting a crima facie case. Moreover, each Commissioner is free to decide for himself or nerself how confident he or she must be in the review process before agreeing to its conclusions.
We regard this as a subjective policy judgment. We would note that the legal argument that the. " reasonable assurance" standard imposes on app 11-cants a burden of proving its position "beyond a reasonable doubt" has bee.
rejected by the courts.
North Anna Envircrmental Coalition v. NRC, 533 F.2d 655, 667 (D.C. Cir.1976).
,mv
,,,,.r,-,-
m,
,---.-----,..----,_..,-w
4 standard review plan (SRP), ' regulatory guides, branch positions, and other similar, non-binding, infomal guidance, rather than on compliance with the regulations themselves. These two problems will be addressed in turn below.
a.
The Audit process In an audit myiew process, some but not all aspects of plant design and operation are reviewed. This appears to be a characteristic of any reasonable review process. There is no reasonable way that NRC could duplicate the thousands of man hours spent by the utility and its constractors in plant design, quality assurance, ano development of operating procadures. NRC is in no different position in this regard than other Federal regulatory agencies charged with licensing and regulating a complex project. 6/
Apart from this important practical consideration, there are other reasons why an audit review process is legally adequate.
First, many, and probably most aspects of plant design or operation that are not reviewed by NRC staff in a particular case were in fact reviewed in a prior similar case. As the safety review process is conducted from year to year, old issues become largely settled as applicants incorporate solutions found acceptable in prior reviews, and new' issues arise based on new insights and infomation. The reviewers approach each new application with a general awareness of what is settled and what is not.
They devote the most review resources to the areas considered unsettled, because it is here they believe that differences between applicant and staff will most likely arise. Little or no resources are devoted to other areas because of the general belief, based on experience, that in these areas the applicant will have adopted acceptable designs and procedures. Also, issues of compliance with particular NRC regulations have been raised in numerous adjudicatory proceedings.
Where the issue raised was in an area that was not specifically reviewed, the staff has in most cases been able to reconstruct the review process that led to the resolution of the issue in the prior case and present a convincing casa for compliance to the licensing board.
In effect, past review and adjudicatory hearing experience supports a kind of rebuttable presumption by the reviewers that the plant is in compliance in all the settled, although unreviewed, areas.
We cannot say that this kind of presumption is unreasonable as a matter of. law.
Second, in every case the staff does conduct some review of the applicant's qual ifications.
Every application contains numerous statements to the effect t'at this or that particular NRC regulation is satisfied. These statements, ride under oath or affimation by : qualified applicant, are evidence of compli-a.ce with the regulations that can be relied on by NRC.
7f Moreover, applicants l
l Considerations of practicality have led the courts, in other contexts, to 6/
refer to the "nomally reasonable inference that what is true for a fair sampling... is probably true for most." May Truckino Co. v. U.S., 593 F.2d 1349 (D.C. Cir.1979) (ICC grant of broad authority to serve many areas sus-tained based on a showing of need for the service in a representative number ofareas).
Indeed, as the Court of' Appeals for the D.C. Circuit stated in connection 7/
with the Federal Communications Act, the Act which served as the model for the 1954 Atomic inergy Act, " effective regulation is premised upon the agency's ability to depend upon the representations made to it by its'Ifcensees".
(D.C. Cir., June 5, I NJ).
LeFlore Broadcastino Co. v. FCC, _, F.2d
., ~ -.., - - - -.
m
5 must have a quality assurance program which is designed to ensure that NRC regulations are complied with in designing, procuring, and installing systems and components in the plant. The NRC staff reviews the adequacy of this program in every case. This provides assurance that applicants' assurances of compliance have substance beneath them.
We believe these factors taken together indicate that the review process does provide a legally acceptable basis for a finding of compliance in areas of plant design and operation not specifically reviewed in a particular case.
b.
Use of Informal Guidance The second problem is that the described review process focuses on compliance with the SRP and other informal guidance, rather than compliance with the regulations themselves. The Commission's safety regulations in 10 CFR Parts 50 'w and 100 have, for the most part, remained unchanged since the 1960's and are, for the most part, too vague and general to serve as a clear guide to correct licensing decisions. The regulations for the most part embody a collection of broad safety principles rather than a collection of specific sa*fety requirements.
Some guidance was needed to bridge the gap between the statements of broad safety principles in the regulations and specific design and operational proposals in individual construction permit and operating license applications.
Standard review plans, regulatory guides, and branch technical positions served this purpose. Over time, the review process shifted more and more to this " gap-bridging" guidance with the result that the situation today is as described in th'e June 13 and July 23, 1980 memoranda.
l (1) SRP Reviews l
For plants reviewed in accordance with the SRP, the problem becomes whether compliance with the SRP establishes compliance with the regulations. y The staff points out that each section of the SRP typically cites one or more NRC regulations as the basis for the review requirements which follow. The NRR July 23,1980 memorandum also contains various cross-references between NRC regulations and provisions of the SRP.
However, this leaves two problems.
First, citation of a particular NRC regulation in the SRP as support for the review requirement does not in itself show that the review requirement estab-lishes compliance with the regulations.
To do this the substance of both the regulation and the SRP requirement must be compared. 9f Second, the citation l
l 8]
This issue was brought to the Commission's attention in our October 23, 1979 memorandum to the Commission on " Unresolved Legal Issues".
1 1
y In many cases the SRP cites regulatory guides as the basis for the required review. Regulatory guides are specifically intended to describe a method found acceptable by the staff for complying with one or more regulations cited in the guides. Thus in the specific technical area addressed by each' regulatory guide, a review has been conducted and the solution set forth in l
the guide has been found to comply with the cited regulation.
--.-.--.--,---,e
.-.-v.--
.%.,,e
.m.. -
..-,-.w-
.--=--,.,,,,--.---,-.c
,-------=m-.
-y
6 and cross-referencing do not show that the regulation is fully implemented.
If a regulation is applicabla to two different systems dealt with in two different sections of the SRP the fact that the regulation is cited in one section does not show that the regulation formed the basis for the review requirement in the SRP on the second system.
However, with very few exceptions, all of the NRC's safety regulations are a codification of the essential safety review practices current at t'!e time the regulation was issued. NRR's July 23,1980,e,Jeandum states that the SRP is the " written expression by experienced staff aviewers of the factors to be considered. " In effect the SRP, like most of the regulations, incorporated '. hen current staff review practices.
It can be generally stated that review practices have, over time, resulted in increasingly stringent requirements. Since both the 'SRP and the regulations are rooted in a review process that has generally become more stringent, it can be generally stated that the SRP includes require 3, ments that, at a minimum, implement the NRC's regulations.
This conclusion is buttressed by the fact that many of the staff reviewers responsible for development of the regulations were also respdhsible for develop-ment of the SRP. This suggests that the expertise and safety approach underly-ing the regulations and the SRP are very similar.
The conclusion is also buttressed by the fact that staff has been generally successful in establishing compliance with the regulations when an issue of compliance was raised in adjudicatory proceedings.
Finally, in NRR's July 23, 1980 memorandum the Director states that in his opinion the overall review assures compliance with Commission regulations.
These arguments are very general ones.
However, we believe that, taken together, they provide a legally adequate basis for a finding that compliance with the SRP establishes compliance with the NRC safety regulations.
(2) Non-SRP Plants Most applications currently under review were not reviewed in accordance with the SRP in the sense that deviations from the SRP were not required to be documented and the final version of the SRP was not actu111y used in all aspects of the review. However, the arguments made above still generally apply. Staff has generally been successful in establishing compliance in adjudicatory pro-ceedings.
Staff review practices were in accord with the regulations when they were promulgated, and so long as review practices applied to pending applications are the same as or more stringent than review practices in effect when the regulations were issued, the review practices applied to pending applications should generally establish compliance with NRC regulations. Moreover, in many areas regulatory guides were used as a basis for review rather than the SRP.
As O
l e
v
___-_,m.-.,.,,,,_y-_
, _ -.,_,__-,_,,,,,y---.y,,
e,
,,m, m -,.-,,_
..--e
7 has been noted,1/ regulatory guides have been reviewed for conformance with 0
the regulations.
In summary, our conclusion is that the principal difficulty with the review process here is that the link between the review and +he regulations is not adequately documented.
3.
Recommendations for Improvement The review process does, as stated above, establish a legally adequate basis for
. Commission finding of compliance with the regulations. However, the arguments offered for this proposition are general ones. There is no documentation of the specific links between particular carts of the review ;rocess and the specific regulations themselves, although th's kind of documentation may be contained in.
individual safety evaluations and adjudicatory proceedings. We and OPE recomend' that the review process be improved so as to provide better documentation a.nd greater assurance that the regulations are complied with. We and OPE have three suggestions to make in this regard.
6 First, we recommend that the. staff compare the SRP and the regulations, document that comparison, and, when and if necessary, amend either the SRP or the regulations.
In this way the Commission would be confident that all of the regulations are covered in the SRP. '1/ We understand that NRR is considering just such a project and will be..iforming you of its plans in the near future. Second, we recommend that, where practical, applicants with pending applications be requested to state, with supporting references, that each and every applicable NRC regula-tion is complied with. As an alternative, once the first recommendation is carried out, applicants could be requested to list all deviations from the SRP. Third, we recommend that the review process include increased emphasis on the qualifica-tions of applicants' and applicants' contractors. This would entail special emphasis on applicants' engineering and scientific resources and strong action in response to any false or misleading information. This emphasis is important because, so long as audit reviews are conducted, substantial reliance must be placed on the accuracy and completeness of information in the application.- This reliance would be misplaced if there was reason to believe that an applicant is not technically competent or is less than truthful or candid.
OPE does not recommend, as a matter of policy, that near term operating licenses be held up pending completion of these recommendations.
0GC does not believe that the law requires that the recommendations be completed prior to license issuance.
10] Note 9, suora.
lif The value of this exercise in terms of increased protection of the public health and safety would be greatly enhanced if the regulations themselves.
were systematically reviewed and updated. This longer term project is now planned.
1 l
,,-,_.,,-w-
-m
~
8 One fi%1 note on a related matter.
It is useful at tt point to compare the requirements of the " Bingham amendment" for backfittir af plants already licensed with the requirements in the Atomic Energy A and NRC regulations for initial licensing. Section 110 of Public Law 96-295 ne "Singham amendment")
directs the Commission "to develop, submit to the Ct pess, and implement, as soon as practicable after notice and opportunity for public coment, a compre-hensive plan for the systematic safety evaluation of all currently operating utilization facilities required to be licensed under section 103 or section 104(b)" of the Atomic Energy Act. Not later than go days from the date of enactment of P.L.96-295 (June 30,1980), the Cocruission "shall report to the Congress on the status of efforts" regarding the ecmprehensive plan for the systematic safety evaluation (SSE) of these facilities.
Section 110 describes what the plan must include. Among other things, subsec-tien 110(b) directs the NRC to:
Identify each current rule and regulation, compliance with which the NRC specifically determines to be of particular Significance to protection of the public health and safety. According to the Conference Report, this " requires a detailed review by the Comission itself to identify 'those rules and regulations that are of particular health and safety significance for the presently operating plants.
Under the language, information on plant compliance is required only for those rules and regulations. This careful selection process is intended to focus the... plan on those NRC requirements that are of particular significance in assessing the overall safety of the presently operating plants."
Determine, for each presently operating plant, the extent to which the plant meets the specific rules and regulations identified by the Ccmmission.
In determining the extent of compliance, the NRC must indicate where such compliance was achieved by use of Divisien 1 l
regulatory guides, staff technical posittent, or equivalent means.
The Conference Report indicates that this language is an acknowledge-ment by the conferees that licenses can meet safety requirements in several ways.
Four thicgs are wortny of mention here.
~irst, as noted the Bingham amendment l
acplies to reactors already licensed to operate, and does not acply to applica-I tions under review. There is no indication that the amendment in any way relaxes the current requirement in the Atomic Energy Act and NRC regulations that comoli-l ance be found prior to license issuance.
Second, the amendment does not recuire review for ec=pliance with all regulations -- only those regulations that are determined to be of particular safety significance are included in the evaluation.
In contrast, the general requirement that the Commission find compliance with the regulations prior to license issuance applies to all regulations. Third, the amendment and Conference Report correctly describe the subsidiary role of G
9 p..
_---__mr-,
v regulatory guides and other infonnal guidance. Under the Atomic Energy Act, NRC regulations, and the Bingham amendment, it is compliance with the regulations, i ather than compliance with informal guidance, that is critical.
Fourth, the Bingham amendment's requirement that NRC determine the extent which the plant meets specific regulations will probably not be completely satisfied by tSe current review process described in the NRR memoranda.
A more specific ocus on compliance with each identified regulation is required.
=
1 5
t 9
e y
--y-_
- -.