ML19344E171
| ML19344E171 | |
| Person / Time | |
|---|---|
| Issue date: | 07/25/1980 |
| From: | Dircks W NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | Peeples W GULF NUCLEAR, INC. |
| Shared Package | |
| ML19344E161 | List: |
| References | |
| RULE-PRM-30-56, TASK-OS, TASK-TP-915-3 NUDOCS 8008270545 | |
| Download: ML19344E171 (13) | |
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O JUL 2 51930 PRM 30-56 Mr. Walter P. Peeples, Jr., President Gulf Nuclear, Incorporated Post Office Box 58866 Houston, Texas 77058
Dear Mr. Peeples:
l This responds to your letter of April 12, 1979, proposing that the Nuclear l
Regulatory Commission be divided into two separate entities, one covering power reactors, uranium mining, nuclear weapons manufacturing, nuclear fuel processors, and any area that deals with fissile materials.
The second area would deal with byproduct materials.
In a letter dated May 18, 1979, from J.M. Felton, you were informed that nuclear weapons manufacturing is a responsibility of the Department of Energy rather than the Nuclear Regulatory Commission.
The Energy Reorganization Act of 1974, as amended, enacted by the Congress and approved as Public Law 93-438 on October 11, 1974, established the Nuclear Regulatory Commission and transferred to the Nuclear Regulatory Commission all the licensing and related regulatory functions of the Atomic Energy Commission.
In assigning those functions within the Nuclear Regulatory Commission, the Congress not only distinguished between nuclear reactors and other licensed facilities and nuclear materials, but also gave due and proper emphasis to functions which are vital to the public health and safety and the safe and efficient operation of both nuclear reactors and other licensed activities.
Sec. 203(b) of the Energy Reorganizaton Act of 1974, as amended, provides that the Director of Nuclear Reactor Reguir. tion shall perform such functions as the Commission shall delegate including principal licensing and regulation involving all facilities and materials licensed under the Atomic Energy Act of 1954, as amended, associated with the construction and operation of nuclear reactors licensed under the Atomic Energy Act of 1954, as amended.
Sec. 204(b) of the Energy Reorganization Act of 1974, as amended, provides that the Director of Nuclear Material Safety and Safeguards shall perform such 4
activities as i'.he Commission shall delegate including principal licensing and regulation involving fJcilities and materials licensed under the Atomic Energy Act of 1954, as amended, associated with the processing, transport, and handling of nuclear materials, including the provision and maintenanca of safeguards against threats, thefts, and sabotage of such licensed facilities and materials.
The Nuclear Regulatory Commission has used the flexibility provided by Sec. 204(b) of that Act to establish within the Office of Nuclear Material Safety 8008270 g3/ [
2 Mr. Walter P. Peeples, Jr.
and Safeguards the Division of Fuel Cycle and Materia and handling of nuclear materials off the nuclear reactor site.
The Energy Reorganization Act of 1974, as amended, provides no authority u which the NucTear Regulatory Commission, on its ow the Federal Government.
Alternative organization forms for nuclear regulation have been considered in recent studies conducted on or for the Nuclear Regulatory Commission.
Sec. 306 of the Energy Reorganization Act of 1974, as amended, required the Comptroller General of the United States to audit, review, and evaluate the implementation of the provisions of Title II of the Act by the Nuclear Regu tory Commission not later than sixty months after the effective date of that Act and submit to the Congress a report on his audit.
In the Comptroller General's report to Congress, "The Nuclear Regulatory C 15, 1980, the General More Agressive Leadership Needed," dated January Accounting Office (GAO) identified an alternative similar to your proposal, sion:
i.e., separating NRC into separate policymaking and regulatory agencies.
GAO noted that separation of NRC into two agencies Policymaking on critical unresolved nuclear regulation issues could continue At under the commission form with the advantage of multimember deliberations.
the same time, day-to-day regulation of nuclear act of these day-to-day activities.
.ternative with a cross-section of people knowledgeable of nuclear regulation, including representatives of Government, the nuclear ind GAO discussed this Opinion on the alternative ranged from public interest groups, and academia. active interest to a belief that it r Federal regulatory agencies.
GAD chose not to recommend any alternative to stre In conclusion, GAO stated:
" Ultimately, the Congress must consider the advanta which, on balance, best represents what the Congress wants for nuclear regulation."
In support of your petition, you stated five propositions that you felt were Your main theme adequate justification for consideration of your proposal.
was that because of the present makeup of the NRC, public apprehension nuclear power reactors has a tendency to force over-regulation of byproduc materials because both are jointly referred to as simply " radioactive m
Mr. Walter P. Peeples, Jr.
3 NRC staff responses to your five justification statements are set out in.
In summary, we note that NRC rules are based on legislative mandates, judicial guidelines, and statutory responsibilities for regulating production and utilization facilities, including nuclear reactors and facil-ities for processing irradiated special nuclear material (including fissile material defined as uranium-233, uranium-235, plutonium-238, plutonium-239, and plutonium-241), and regulating byproduct and other nuclear materials.
Based on this background, I am denying your proposal (Docket Number PRM 30-56) on the grounds that, given the structure of the Energy Reorganization Act of 1974, as amended, it is clear that Congress intended the newly created Nuclear Regulatory Commission to have licensing and related regulatory authority not only over nuclear reactors, uranium milling, nuclear fuel processing and reprocessing, and other areas dealing with fissile materials but also have this same authority over byproduct materials.
The NRC itself cannot "... separate the United States Nuclear Regulatory Commission into two separate entities...."
Such a separation could only be accomplished in either of two ways:
(1) enact-ment of legislation by the U. S. Congress, the method by which the existing NRC was created; or (2) through implementation of an Executive Reorganization Plan pursuant to 5 U.S.C. 901 e_t seq.
Attached also is a copy if the Federal Register notice of denial of your peti-tion for rule making.
Sincerely, (Signem Willi m bircN Dirc William Acting Executive Director for Operations Attachments:
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NRC Staff Responses to Petitioner's Justification Statements 2.
Notice of Denial of Petition for Rule Making
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NRC STAFF RESPONSES TO PETITIONER'S JUSTIFICATION STATEMENTS PRM 30-56
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Contact:
J. Henry, SD April 1980 443-5946
INTRODUCTION By letter dated April 12, 1979, Walter P. Peeples, President, Gulf Nuclear, Inc., filed a petition for rule making (PRM 30-56) proposing that the Nuclear Regulatory Commission be divided into two separate entities.
As stated by the petitioner, "One area would cover power reactors, uranium mining, nuclear weapons manufacturing, nuclear fuel processors, and any area that deals with fissile materials.
The other area would deal with byproduct materials."
In support of his petition, Mr. Peeples stated five propositions that he felt were adequate justification for consideration of his proposal.
Set forth below are Mr. Peeples' statements and NRC staff responses to those statements.
"1) Fissile materials used in power production and the production of nuclear weapons require far more stringent rules than those required of byproduct material users and licensees.
This includes regulations concerning ship-ment and use of these materials.***"
l STAFF RESPONSE.
The staff notes that the production of nuclear weapons is a responsibility of the Department of Energy rather than the Nuclear Regulatory Commission, and accordingly, will not respond to that point.
The staff agrees with the balance of the above statements to the extent that fissile materials in quantities sufficient to form a critical mass require controls to provide nuclear criticality safety during both transportation and use.
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The staff does not agree, however, with the broad generalizations of the statements because the Commission's regulations provide numerous exceptions to nuclear criticality safety controls for fissile materials based on quanti-ties, concentrations, isotopic compositions, and physical forms of the fissile materials.
i al) *** Because the U.S. Nuclear Regulatory Commission is a single entity, all rules pertain to both types of licensees."
STAFF RESPONSE.
The staff does not agree with this statement because the Com-mission's regulations in the Code of Federal Regulations, Title 10, Chapter I, contain several parts (10 CFR Parts 30-35) devoted exclusively to byproduct material, one part (10 CFR Part 40) devoted to byproduct and source material, and other parts unrelated to regulation of NRC licensees but devoted to conduct of NRC employees, statements of NRC organization, granting of patent licenses, and trespassing on Commission property.
There could be a ring of truth to the petitioner's statement if his experience with the Commission's regulations involved only the delivery of licensed mate-rials to a carrier for transport or the transport of such material outside the confines of the place of use.
Under these circumstances, the petitioner would be subject to the Commission's regulation, " Packaging of Radicactive Material for Transport and Transportation of Radioactive Material Under Certain Condi-tions," 10 CFR Part 71 which indeed pertains to both fissile materials and byproduct materials.
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"?) The majority of effort of the U.S. NRC is devoted to fissile materials creating enoriacus costs and efforts to control.***"
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STAFF RESPONSE.
The staff agrees with the first portion of this statement when full account is taken of professional, managerial, and support staff effort on production, utilization, and fuel cycle facilities that involve fissile materials.
The staff does not agree that the second portion of the statement is a conse-quence of NRC efforts.
The costs and efforts to control fissile materials reflect the growth of nuclear power industry needs for nuclear fuel and con-comitant growth of regulatory controls to meet Congressional mandates that the NRC regulate civilian nuclear activities so that the public health and safety, national security, and environmental quality are protected, and the antitrust laws are obeyed.
"2) *** The majority of the licensees are byproduct materials users who are forced to share the cost burden exhibited in U.S. NRC fees."
STAFF RESPONSE.
The staff agrees that byproduct materials users are the majority of the licensees.
However, when read in context, the petitioner's statement seems to imply that a byproduct materials user is assessed a fee in an amount disproportionate to the agency services rendered to a member of the class of materials licensees as compared to the services rendered to a member of the class of production and utilization licensees.
The staff does not agree with this implication.
Radioactive materials are used widely in industrial applications, consumer products, medical diagnosis and treatment, basic and applied research, and in academic fields.
The NRC administered approximately 8,000 licenses covering the above activities and processed between 6,000 and 8,000 applications fe:-
new licenses, license amendments, and license renewals in FY 1978.
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Caseload projections for FY 1981 - FY 1985 ( data as of February 1979) indicate radioisotope licanses will increase from 9200 to 10,200 and all other licenses and permits (nuclear power reactors, fuel cycle facilities, exports and imports) will increase from 463 to 548.
With respect.to NRC fees, the guidelines for fees were set forth in proposed amendments to 10 CFR Part 170 on May 2, 1977 (42 FR 22149).
The guidelines state in part:
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A fee shall not exceed the sum on the average of the direct and indirect costs which the NRC incurs in furnishing the services *or a member of the class of recipients for which the fee is assessed; and 6.
Calculation of agency costs shall be performed as accurately as is reasonable and practical, and shall be based on specific expenses identified to the smallest practical unit associated with the rendering of the type of agency service to the parti-cular class of recipients.
These guidelines determine whether or not the Commission may charge a fee for a particular service and what the maximum fee may be.
In keeping with the sense of Congress expressed in the Independent Offices Appropriations Act of 1952 that agency activities performed on behalf of persons the agency serves
...shall be self-sustaining to the full extent possible," the Commission is generally obliged to impose the fees allowed by these guidelines where it is fair and equitable to do so.
Materials license fees are computed by multiplying the average professional i
processing time required to perform the service for a materials license in a i
particular category times the cost per unit time of maintaining a professional l
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O employee who performs that service.
The cost per unit time includes the employee's salary, benefits, travel, as well as administrative, clerical, and Excluded are budgeted regulatory costs that are part of supervisory support.
a program conducted on behalf of the public.
.T The staff and leadership of the U.S. NRC devotes the majority of its time "3) to expended energy related to power reactors which creates undue burdens on byproduct materials users."
STAFF RESPONSE. The staff notes that, in FY 1979, 22.6% of NRC personnel were assigned to power plant licensing,10.6% to material safety and safeguards, j
and the balance to all other activities.
That allocation of personnel does not appear to create undue burdens on byproduct This is reflected in the NRC Annual Report 1978:
materials users.
The NRC system of licensing the possession, use, transfer, and disposal of byproduct, source, and special nuclear material isAt the designed to assure protection of public health and safety.
same time, it is important that this licensing program be conducted in such a way as to be responsive to the large number of applications received per month without delay of needed services or economic I
losses to applicants.
A division of responsibility by NRC would create a positive effect "4) on the general public by making them aware that there are different types of radioactive materials, easing some of the political pressure on the NRC."
The staff has considered the possibility that the NRC could STAFF RESPONSE.
divide its staff into two separate entities for nuclear regulation along the lines proposed in the petition.
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Title II of the Energy Reorganization Act of 1974 (Public Law 93-438), as 1
amended, establishes in the Nuclear Regulatory Commission three statutory offices - the Office of Nuclear Reactor Regulation, the Office of Nuclear 5
- e Material Safety and Safeguards, and the Of fice of Nuclear Regulatory Research.
Sections 203(b), 204(b), and 205(b) of that Act provide that the directors of these offices "... shall perform such functions as the Commission shall delegate...".
, -e Under these and other sections of the Energy Reorganization Act, the Commission has exercised its discretion to consolidate or disperse in both statutory and nonstatutory offices functions (e.g., issuing licenses, safeguarding nuclear materials and facilities, developing standards, inspecting licensees, and enforcing regulations) needed to meet Congressional mandates that the Commission regulate civilian nuclear activities so that the public health and safety, national security, and environmental quality are protected, and antitrust lass are olayed.
For example, in the summer of 1979 the Commission established the Office for Analysis ano Evaluation of Operational Data with a principal function of review-ing currently or potentially available operational data associated with all NRC licensed activities to determine possible applications to analyses that will improve safety.
In establishing this new office, the Commission consoli-dated several multidisciplinary functions (nuclear reactor development, fuel cycle facilities development, waste management, and automatic data processing) needed to review operational dets from nuclear power plants and other licensed activities for applicability to safety.
s As another 'xample,# in the fall of 1979 the Commission consolidated the safe-e I
guards responsibilities of two NRC offices.
(" Safeguards" are the measures used to deter, detect, and respond to the theft or diversion of licensed nuclear 6
materials and the sabotage of nuclear facilities and materials.)
Under the consolidation, safeguards duties of NRC's Office of Nuclear Reactor Regulation were assumed by the Office of Nuclear Material Safety and Safeguards.
In announc-ing the consolidation, the Commission noted that the Office of Standards Develop-ment will continue its work on development of safeguards standards, the Office of Nuclear Regulatory Research will continue its functions in connection with present and future research in the safeguards area, and the Office of Inspection and Enforcement will continue to perform safeguards inspection functions because the separation and independence of licensing and inspection functions is considered essential.
If the Commission had been delegating authority to the two separate entities proposed in the petition, it would not have been able to consolidate operational data reviews for applicability to safety or consolidate safeguards responsibil-ities of two NRC offices and thereby unify its approach to safeguards regulation and increase efficiency in use of personnel resources.
NRC regulations, regulatory guides, reports, and other documents already distin-guish among byproduct, source, and special nuclear materials unless they are generally applicable to licensed materials, nuclear materials, or atomic energy ma te. rial s.
Scientific and other more general articles usually distinguish between nuclear fuel and radioactive materials.
Nuclear medicine is a term known to a large fraction of the public.
It is doubtful, therefore, that dividing the NRC into two separate entities would have much impact on making the public significantly more aware of different types of radioactive materials and their respective hazards.
t T.
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Because of the present makeup of the NRC controlling both areas, the public "5) apprehension toward power reactors has a tendency to force over-regulation of byproduct materials because both are jointly referred to as simply
" radioactive materials".
This detracts from the ability to point out the positive nature of public benefits derived from both types of materials.***"
's STAFF RESPONSE.
The staff is not aware of any case in which nuclear reactors and byproduct materials are jointly referred to as simply " radioactive mate-j.
rials." The staff does recognize, however, that the term " radioactive mate-rials" is used in a variety of ways in connection with both nuclear reactors and byproduct materials.
Some examples are set forth below.
Nuclear reactors, also known as nuclear power reactors or utilization facil-ities (and usually referred to by one or another variation of these terms) produce radioactive materials as a result of their operattin and have equipment to control releases of radioactive material in effluents.
Nuclear reactors also produce waste material containing byproduct material.
Byproduct material is by definition any radioactive material (except special 1
nuclear material) yielded in or made radioactive by axposure to the radiation incident to the process of producing or utilizing special nuclear material.
The term " radioactive material," includes any such material whether or not a
subject to licensing control by the NRC.
In NRC documents, the term " radio-active materials" is often, but not consistently, used when referring to materials that include licensed material (byproduct material, source material, or special nuclear material), and n7turally-Jtcurring and/or accelerator produced radioactive material (NARM) if present.
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_r-i With regard tc public benefits, the staff notes that the NRC, as an independent regulatory agency, does not publish information of a promotional nature on licensed materials or nuclear commodities or products.
The NRC does, however, evaluate values (in value/ impact statements) and benefits (in benefit / cost
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analyses) while considering alternative courses of action for exercising regula-tory controls over civilian nuclear activities.
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- Since NRC fails to distinguish between the two types of materials, undue "5) burdens in transportation and publicity force byproduct materials users to defend a position they are not totally familiar with. ***"
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STAFF RESPONSE. The staff does not agree that the NRC fails to distinguish between fissile materials and byproduct (and other licensed) materials.
The NRC's regulation 10 CFR Part 71, " Packaging of Radioact'ive Material for l
Transport and Transpor'ation of Radioactive Material Under Certain Conditions,"
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4 defines fissile material (uranium-233, uranium-235, plutonium-238, plutonium-239, 4
and plutonium-241) and sets out criticality and specific standards for fissile These criticality and specific standards are in addition material packages.
to the general standards for all packaging and structural standards for type B and large quantity packaging for radioactive material.
- Petitions and regulations, including regulatory guides, are frequently "5) opposed or incorrectly interpreted because of lack of distinction between the two types of materials."
STAFF RESPONSE. The staff agrees that there is frequent opposition and incor-i rect interpretation, but not necessarily because of a lack of distinction by the NRC between fissile materials and byproduct materials.;
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An example is found in public comments submitted on 10 CFR Part 71, Appendix E - Quality Assurance Criteria for Shipping Packages for Radioactive Material, that was published as a proposed rule on December 23, 1973 (38 FR 35490).
In adopting the final rule, the NRC noted on August 4, 1977 (42 FR 39365):
-n A number of commenters suggested changes in the provisions of proposed Appendix E to Part 71, which contains the general pro-It visions relative to all package quality assurance programs.
was observed that proposed Appendix E was patterned closely after Appendix B of 10 CFR Part 50, " Licensing of Production and Utili-zation Facilities." Comments were offered that transportation packages differ in many ways from nuclear facilities, and that the same quality assurance provisions should not be applied to both.
i However, the quality assurance provisions of proposed Appendix E are general in nature and with minor modifications are applicable to a Flexibility wide variety of types of quality assurance programs.
in applying the provisions of Appendix E, section 2, " Quality Assur-ance Program," has been emphasized by the second paragraph of that section dealing with the importance, complexity, and other charac-While some teristics of the package or component to be controlled.
suggested clarifications of Appendix E have been adopted, the general requirements of that Appendix, parallel to the general requirements of Appendix B of Part 50, have been retained.
l The seven applicable (of 18 listed) Appendix E criteria for QA programs for l
the use, maintenance, and repair of shipping packages for certain special form l radioactive material were set out in a draft Regulatory Guide 7.XX sent May 1, 1978, to users of NRC approved package designs.
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j Attachment I 10 l
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