ML19353A852
| ML19353A852 | |
| Person / Time | |
|---|---|
| Issue date: | 09/07/1989 |
| From: | Taylor J NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | |
| Shared Package | |
| ML19353A853 | List: |
| References | |
| FRN-54FR43576, RULE-PR-51, TASK-RINC, TASK-SE AD41-2-5, SECY-89-285, NUDOCS 8909140182 | |
| Download: ML19353A852 (30) | |
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RULEMAKING ISSUE September 7,-1989 SECY-89-285 (NEGATIVE CONSENT)
For:
The Connissioners From:
James M. Taylor Acting Executive Director for Operations
Subject:
REVISION TO 10 CFR 51.10(d)
Purpose:
To inform the Comission of a proposed final rule modifying 10 CFR 51.10(d) to clarify that NEPA review is J
not required for either informal enforcement actions covered by Appendix C to Part 2 or formal enforcement 1
actions covered by Subpart B of Part 2, or matters covered by Part 15 and Part 160.
Discussion:
Attached is a clarifying rule change in the form of a final rule modifying 10 CFR 51.10(d) to specifically exclude informal enforcement actions, such as Confirmatory Action Letters (CALs), notices of nonconformance, notices of l
deviation, bulletins, and generic letters from the requirement for NEPA review.
Enforcement actions do not require NEPA review before such actions are taken. See NRC Regulations 10 CFR 51.10(d)
Although 10 CFR andCEQ) Regulations 40CFR1508.18.contains some broad languag 51.10(d I
narrow language referring specifically only to formal enforcement actions.
The focus on formal enforcement actions was consistent with the position taken by the Comission in the recent case involving the restart of the L
Pilgrim plant, Comonwealth of Massachusetts v. NRC, l
No.88-2211, that such informal mechanisms did not involve NRC action.
In that case, the First Circuit Court of Appeals held that restart of the plant did involve Comission action but went on to uphold the Comission action.
Contact:
Joseph F. Scinto, OGC 49-21740
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l As a result there have been questions, such as those raised by Congressman Studds, concerning whether infonnal enforcement actions and related restart approvals require environmental review. Since such actions are in the nature of enforcement actions, such actions would not require environmental review under CEQ Regulations.
However, because NRC regulations in 10 CFR 51.10(d) do not exslicitly include informal enforcement actions sucn as CA.s. it is desirable to clarify that section to explicitly include informal enforcement actions. This is a minor clarifying amendment which does not involve a significant question of policy and is within the delegation of authority to the Executive Director for Operations.
However, in view of the interest of Congressman Studds in the related Pilgrim matter, I am informing the Commission prior to acting on this amendment.
Recomendation:
Unless the staff is instructed to the contrary within 10 days from the date of this paper, the enclosed amendment to 10 CFR 51.10(d) will be issued as a final rule.
/
N.W' N
Tay A ing Execubive Director for Operations
Attachment:
Clarifying rule change SECY NOTE:
In the absence of instructions to the contrary, SECY will notify the staff on Monday, September 25, 1989, that the Commission, by negative consent, assents to the action proposed in this paper.
DISTRIBUTION:
Commissioners OGC OIG LSS GPA REGIONAL OFFICES EDO ACRS ACNW ASLBP ASLAP SECY e
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4 ENCLOSURE A
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J NUCLEAR REGULATORY COMISSION l
10 CFR Part 51 Clarifying Amendment Relating to Enforcement Activities AGENCY: Nuclear Regulatory Comission.
ACTION: Final rule.
i SUMARY: The Nuclear Regulatory Commission (NRC) is amending its environ-J mental regulations to make clear that the provision excluding NRC enforcement activities from the requirements of the National Environmental j
Policy Act of 1969, as amended, not only encompasses fonnal enforcement actions but also encompasses informal administrative mechanisms relating to enforcement such as bulletins, information notices, generic letters, notices of deviation, notices of nonconformance and confinnatory action letters.
This minor amendment will help to clarify the manner in which this provision 2
will be applied.
EFFECTIVE DATE:
(Insert date final rule is published in the Federal l
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Register.)
l FOR FURTHER INFORMATION CONTACT:
Stuart A. Treby, Assistant General Counsel for Rulemaking and Fuel Cycle.
U.S. Nuclear Regulatory Comission. Washington, DC 20555;
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Telephone (301) 492-1636.
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L SUPPLEMENTARY INFORMATION:
On March 12,1984, the Connission promulgated final regulations implementing section 102(2) of the National Environmental Policy Act of 1969, as amended, (NEPA)inamannerwhichisconsistentwiththeNRC'sdomesticlicensingand related regulatory authority. These regulations,10 CFR Part 51. Subpart A.
reflect the Commission's policy of developing regulations voluntarily subject to certain conditions to take account of the regulations of the Council on Environmental Quality (CEQ) implementing the procedural provisions of NEPA. Secticn 51.14(b) of the NRC regulations adopts certain definitions used in the CEQ regulations. These definitions include the definition of " Major Federal action" in 40 CFR 1508.18.1 As this definition If 40 CFR 1508.18 states: " ' Major Federal action' includes actions with effects that may be major and which are potentially subject to Federal control and responsibility. Major reinforces but does not have a meaning independent of significantly (i 1508.27). Actions include the circumstance where the responsible officials fail to act and that failure to act is reviewable by courts or adninistrative tribunals under the' Administrative Procedure Act or other applicable law as agency action.
"(a) Actions include new and continuing activities, including projects and programs entirely or partly financed, assisted, conducted, regulated, or approved by federal agencies; new or revised agency rules,(regulations, plans, policies, or procedures; and legislative proposals il 1506.8 1508.17). Actions do not include funding assistance solely in the form of general revenue sharing funds, distributed under the State and Local Fiscal Assistance Act of 1972, 31 U.S.C.1221 et seq., with no Federal agency control over the subsequent use of such funds. Actions do not include bringing judicial or administrative civil or criminal enforcement actions.
"(b) Federal actions tend to fall within one of the following categories:
"(1) Adoption of official policy, such as rules, regulations, and interpre-tations adopted pursuant to the Administrative Procedure Act, 5 U.S.C. 551 et seq.; treaties and international conventions or agreements; formal (FootnoteContinuedonNextPage).
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makes clear, for NEPA purposes, the ters " Major Federal action" does not include "... bringing judicial or administrative civil or criminal enforcement actions...." This portion of the CEQ definition of " Major Federal action" is highlighted in section 51.10 of the Consission's regulations which addresses the purpose and scope of NRC's regulations implementing section 102(2) of NEPA and states in paragraph (d):
"(d) Connission actions initiating or relating to admini-strative or judicial civil or criminal enforcement actions or proceedingsarenotsubjecttosection102(2)ofNEPA. These actions include issuance of notices, orders, and denials of requests for action pursuant to Subpart B of Part 2 of this chapter, and matters covered by Part 15 and 160 of this chapter."
Although the Commission's regulations make clear that enforcement matters are not subject to the NEPA process, there has been some uncertainty as to whether certain types of informal administrative actions used by the NRC (FootnoteContinuedfromPreviousPage) documents establishing an agency's policies which will result in or substantially alter agency programs.
"(2) Adoption of formal plans, such as official documents prepared or L
approved by federal agencies which guide or prescribe alternative uses of l
federal resources, upon which future agency actions will be based.
"(3) Adoption of programs, such as a group of concerted actions to implement l
a specific policy or plan; systematic and connected agency decisions-allocating agency resources to implement a specific statutory program or executive directive.
"(4) Approval of specific projects, such as construction or management
- activities located in a defined geographic area. Projects include actions approved by permit or other regulatory decision as well as federal and L
federally assisted activities."
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staff as an adjunct to the Comission's fomal enforcement mechanisms, which include the issuance of orders pursuant to 10 CFR Part 2. Subpart B, are intendedtobeincludedwithinthescopeof10CFR51.10(d). See 10 CFR Part 2. Appendix C, General Statement of Policy and Procedure for NRC Enforcement Actions,Section V.H.
These informal administrative actions j
include, among others, various written notices such as bulletins, information notices, generic letters, notices of deviation or non-conformance and confirmatory action letters. As use of the word
" include"inthesecondsentenceofsection51.10(d)makesclear,section 51.10(d)doesnotpurporttoprovideacomprehensivelistofCommission activities relating to enforcement. The types of enforcement actions mentioned were-intended to be only illustrative.
l As described in the Comission's General Statement of Policy on Enforcement,
" Confirmatory Action Letters are letters confiming a licensee's or a vendor's agreement to take certain actions to remove significant concerns about health and safety, safeguards, or the environment." A confirmatory action letter is an informal enforcement tool-issued by the NRC staff pursuant to 10 C.F.R. Part 2 Appendix C, V, H, 3.
The letter memorializes comitments made by the licensee to the NRC staff that the licensee will take certain specific actions with regard to a facility.
The NEPA status of such informal tools, including resumption of plant operation, was not explicitly addressed in Section 51.10 since the Comission believed, as it argued in Comonwealth of Massachusetts v. _ -
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United States Nuclear Regulatory Connission, No. 88-2211, that such informal enforcement tools did not involve agency action. However, in that case the First Circuit Court of Appeals concluded that resumption of operation of the Pilgrim facility, after an extended shutdown for corrective actions p
reflected in a Confirmatory Action Letter, involved NRC action to reinstate the license. The Court went on to uphold the NRC actions against related challenges. The case did not raise and the Court did not address any NEPA related issues.
Licensee actions undertaken voluntarily, as documented in a confirmatory action letter, are generally directed to restoring compliance with NRC regulations, thereby enabling the licensee to resume licensed activities.
Consequently, the only environmental effects of the licensee's voluntary
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actions to reestablish that Ifeensed activities will be undertaken in accordance with the license are those evaluated at the time the facility or activity was licensed and assessed in the NRC Environmental Impact Statement prepared in connection with the initial issuance of the license and in subsequent environmental evaluations in connection with license amendments.
The environmental effects of NRC activities associated with the supervision of such licensee actions, including NRC approval and supervision of the licensee's subsequent resunption of licensed activities are the same and do not require additional environmental review.
Although the Commission did not intend section 51.10(d) of its NEPA regulations to be read as if it applied exclusively to the types of.
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enforcement activities specifically enumerated therein, it recognizes that 1
clarification would be helpful. Accordingly, the Comission is promulgating this final rule.
.It should be clearly understood that it has always been contemplated, under section 51.10(d), that when licensee actions to remediate the matters under-lying the enforcement action have been completed to the satisfaction of the Comission, the conditions of operation previously reviewed in an environ-
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mental context will be restored. Accordingly, when the NRC authorizes i
licensed activities to resume, no additional environmental review pursuant to NEPA or the Connission's regulations is needed.
If it should be necessary for the licensee to obtain a license amendment to restore compliance with the Comission's safety requirements in order to satisfy the concerns underlying the enforcement action, any environmental effects associated with issuance of the license amendment would either be addressed in an Environmental Assessment or encompassed by a categorical' exclusion under10CFR51.22(c). In this way, appropriate consideration of any environmental impact would be assured.
Because this amendment is merely clarifying and interpretative in nature, relates solely to matters of agency practice and does not involve a significant question of policy, good cause exists for omitting notice of proposeo rulemaking and public procedures thereon as unnecessary and for making the amendment effective upon publication in the Federal Register without the customary thirty day notice.._
s Environmental Impact: Categorical Exclusion The NRC has determined that this final rule is the type of action described incategoricalexclusion10CFR51.22(c)(2). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this final regulation.-
Paperwork Reduction Act Statement This final rule contains no new or amended information collection requirements and therefore is not subject to the requirements of the Paperwork Reduction Act of 1980(44U.S.C.3501etseq.).
Regulatory Analysis Questions have arisen as to whether 10 CFR 51.10(d), which excludes Commission actions relating to enforcement from the NEPA process, encompasses informal administrative actions such as those described in section V.H. of the Commission's General Statement of Policy and Procedure for NRC Enforcement Actions,10 CFR Part 2 Appendix C, i.e., bulletins, information notices, generic letters, notices of deviation or nonconformance and confirmatory action letters. Section 51.10(d) of the Comission's regulations is not limited to a portion of the Comission's enforcement activities but is all-inclusive. The NRC staff has a need to assure a uniform understanding of the scope of actions encompassed by this regulation. This rule change revising the text of section 51.10(d) to make clear that it applies to the entire spectrue of the Commission's enforcement activities is the appropriate means to achieve this end..
- 4 Backfit Analysis The NRC has detennined that the backfit rule,10 CFR 50.109, does not apply to this final' rule because this amendnent to 10 CFR 51.10(d) does not contain any provisions which impose backfits as defined in 10 CFR 50.109(a)(1)andthereforeabackfitanalysisisnotrequired, i
List of Subjects in 10 CFR Part 51 Administrative practice and procedure, Envirorenental impact statement.
Nuclear materials, Nuclear power plants knd reactors, Reporting and recordkeeping requirements, i
For the reasons set forth in the preamble and under t e authority of the h
Atomic Energy Act of 1954,_as amended, the Energy Reorganization Act.cf 1974, as amended, the National Environmental Policy Act of 1969, as amended, and 5 U.S.C. 552 and 533, the NRC is adopting the following amendment to 10 CFR Part 51:
PART 51 - ENVIRONMENTAL PROTECTION REGULATIONS FOR DOMESTIC LICENSING AND RELATED REGULATORY FUNCTIONS 1.
The authority citation for Part 51 continues to read as follows:
AUTHORITY: Sec.161,68 Stat.948,asamended(42U.S.C.2201);
secs. 201, as amended. 202, 88 Stat. 1242, a.s amended, 1244(42U.S.C.5841, 5842). :
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Subpart A also issued under National Environmental Policy Act of 1969, secs. 102, 104, 105,-83 Stat. 853-854, as amended '(42 U.S.C. 4332, 4334, 4335); and Pub. L.95-604. Title II, 92 Stat. 3033-3041. Sections 51.20, 51.30, 51.60, 51.61, 51.80, and 51.97 also issued under secs. 135, 141, Pub.
L.97-425, 96 Stat. 2232, 2241, and sec. 148, Pub. L. 100-203, 101 Stat.
1330-235(42U.S.C.10155,10161,10168). Section 51.22 also issued under sec.274,73 Stat.688,asamendedby92 Stat.3036-3038(42U.S.C.2021).
2.
Paragraph (d) of i 51.10 is revised to read as follows:
6 51.10 Purpose and scope of subpart; Application of regulations of Council on Environmental Quality.
(d) Commission actions initiating or relating to administrative s
or judicial civil or criminal enforcement actions or proceedings are not subject to section 102(2) of NEPA. These actions include issuance of notices, orders, and denials of requests for action pursuant to Subpart B of Part 2 of this chapter, matters covered by Part 15 and Part 160 of this chapter, and any other matters covered by Appendix C to Part 2 of this chapter.... _
4.
~ Dated at Rockville, Maryland, this day of-
'1989 For the Nuclear Regulatory Commission James M. Taylor Acting Executive Director for Operations j
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ROUTING AND TRANSMITTAL SUP Auoust 24 1989 initiets sete 70: (Name,emoe armbot..oom nwnber, huwine,heen.yIPoet) f.
J. Partlow. NRR/ADP MS: 12-G-18 3
T. Murley, NRR/DONRR
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R. Bernero, NMSS/D0 MS: 6-A-4 4.
S. Treby,-OGC MS 15-B 18 s.
Acten Flw Note and Metum w ;:
For Cienrence Per Conversation As Mequested For Correction Propero Wi For Your Information See Me
__. Circulate Comment investleate S'aneture Coord6netton Justify REMARKS
,5 FOR YOUR CONCURRENCE 1
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DO NOT use this form as a RECORD of approvale, concurre u, disposale, clearancee, and similar actir>ne RoemiM. --86dg.
FROM:(Name, ore. symbol. Agency /Poef)
Phone No, J. Scinto, OGC x21740 9,',7',$"M8"" "'.s"e"e 8 88" 1 8
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MEMORANDUM FOR:
James M. Taylor Acting Executive Director for Operations FROM:
Stuart A. Treby Assistant General cow el for Rulemaking and Fuel Cycle Office of the General Counsel
SUBJECT:
MINOR CLARIFYING AMENDMENT TO 10 CFR 51.10(d) - EXCLUSION OF NRC ENFORCEMENT ACTIVITIES FROM NEPA Attached for your signature is a final rule to be published in the Federal Register (Enclosure A) that amends 10 CFR 51.10(d) to make clear that this provision excluding NRC enforcement activities from the requirements of the
. National Environmental Policy Act of 1969, as amended (NEPA) not only encompasses formal enforcement actions but also encompasses informal administrative mechanisms relating to enforcement such as bulletins, information notices, generic letters, notices-of deviation, notices of nonconformance and confirmatory action letters. See, 10 CFR Part 2.
Appendix C, General Statement of Policy and Procedure for NRC Enforcement Actions, section V.H.
This minor clarifying amendment will help to resolve uncertainties concerning the manner in which section 51.10(d) will be applied.
The Commission takes enforcement actions which require nuclear power plants to shut down. The issue has been raised as to whether or not environmental assessments need to be written every time a plant restarts.
This issue, concerning the need to prepare an environmental assessment, has recently been raised in connection with the restart of Pilgrim which was voluntarily shut down by the licensee so that the licensee could complete work needed to bring the facility into compliance with the provisions of the operating license and the Commission's regulations.
Since this final rule is a minor clarifying amendment and does not constitute a significant question of policy, you have authority to issue it.
Accordingly, a statement approving the rule for publication is attached for your signature (Enclosure B). A notice to the Consnission that you have signed this rule is also enclosed for inclusion in the next Daily Staff Notes (Enclosure C). The appropriate Congressional Committees will be notified (EnclosureD).
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James M. Taylor 2-Coordination:
The Offices of Nuclear Reactor Regulation and Nuclear Materials 5afety and Safeguards cot:ur in this amendment.
i Stuart A. Treby Assistant General Counsel for Rulemaking and Fuel Cycle
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Office of the General Counsel i
Enclosures:
A.
Federal Register Notice of Final Rutemaking 8.
Statement by Acting EDO approving final rule for publication C.
Draft Item for Daily Staff Notes D.
Draft Congressional Letter
James M. Taylor.
Coordination: The Offices of Nuclear Reactor Regulation and Nuclear Materials 5afety and Safeguards concur in this amendment.
Stuart A. Treby Assistant General Counsel for Rulemaking and fuel Cycle Office of the General Counsel
Enclosures:
A.
Federal Register Notice of Final Rulemaking B.
Statement by Acting EDO approving final rule for publication C.
Draft Item for Daily Staff Notes D.
Draft Congressional Letter OGC NRR/ADP
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NAME
- JScinto/amb : J.Partlow
- T.Murley R.Bernero S.Treby DATE
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0FFICIAL RECDRD CDPY