ML19353B223
| ML19353B223 | |
| Person / Time | |
|---|---|
| Issue date: | 08/30/1989 |
| From: | Treby S NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Taylor J NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| Shared Package | |
| ML19353A853 | List: |
| References | |
| FRN-54FR43576, RULE-PR-51 AD41-2-4, NUDOCS 8912130481 | |
| Download: ML19353B223 (17) | |
Text
P.DR 'I ADW-2 j[ p m,Ig UNIT ED sTATss NUCLEAR REGULATORY COMMISSION v -
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hMG b t Ct9 MEMDRANDUM FOR:
James M. Taylor
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Acting Executive Director for Operations i
i FROM:
Stuart A. Treby Assistant General Counsel for Rulemaking and Fuel Cycle Office of the General Counsel
SUBJECT:
MINORCLARIFYINGAMENDMENTTO10CFR51.10(d)-EXCLUSION OF NRC ENFORCEMENT ACTIVITIES FROM NEPA j
1 Attached for your signature is a final rule to be published in the Federal F,egister (Enclosure A) that amends 10 CFR SI.10(d) to make clear that this l
provision excludir.g NRC enforcement activities from the requirements of the Natinnel Environmental Policy Act of 19693 asamended(NEPA)notonly encompasses fortral enforcement actions but also encompasses inferinal administrative trechanisms 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.F.
This minor clarifying amendment will help to resolve uncertrinties concerning the manner in which section 51.10(d) will be applied.
The Comission 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, concerring 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 Comission'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 Comission 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 (Enclosure D).
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James M. Taylor Coordination: The Offices of Nuclear Reactor Regulation and Nuclear FJterials 5efety 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
James M. Taylor AUG 8 01986 j
Coordination: The Offices of Nuclear Reactor Regulation and Nuclear Raterials 5afety and Sefeguards concur in this amendment.
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/pStuartA.Treby V
Assistant General Counsel for Rulemaking and Fuel Cycle Office of the General Counsel
Enclosures:
A.
Federal Register Notice of i
Final Rulemaking B.
Statement by Acting EDD i
approving final rule for publication i
C.
Draft Item for Daily Staff i
Notes D.
Draf t Congressional Letter l
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U 0 0 P Y 0FFICIAL
EhCLOSURE A.
NUCLEAR REGULATORY COMMISSION 10 CFR Part 51 Clarifying Amendment Relating to Enforcement Activities AGENCY:
Nuclear. Regulatory Comission.
ACTION:
Final rule.
SUMMARY
- . The Nuclear Regulatory Comission (NRC) is amendinD its environ-mental regulations to make clear that the provision excluding NRC l
enforcement activities from the requirements of the National Environmental Policy Act of 1969, as amended, not only encompasses formal enforcement actions but also encompasses informal aaministrative mechanisms relating to enforcement such as bulletins, information notices, generic letters, notices of deviation, notices of nonconformance and confirmatory action letters.
u This minor amendment will help to clarify the manner in which this provision i
will be applied.
L EFFECTIVE DATE:
(Insert date final rule is published in the Federal l
Register.)
FOR FURTHER INFORMATION CONTACT:
Stuart A. Treby, Assistant General Counsel for Rulemaking and Fuel Cycle.
U.S. Nuclear Regulatory Comission, Washington, DC 20555; Telephone (301) 49?-1636.
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L SUPPLEMENTARY INFOR!% TION:
1'
.On March 12, 1984, the Commission promulgated final regulations implementing
.section 102(2) of the National Environmental Policy Act of 1969, as amended.
(NEPA) in a manner which is consistent with the NRC's domestic licensing and 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.
Section 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 1508.18.3 As this definition
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40 CFR 1508.18 states:
" ' Major Federal action' includes actions with effects that may be major and which are potentially subject to Federal
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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 administrative 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). Actiors to 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) iederal 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 (Footnote Continued on Next Page).
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makes clear, for NEPA purposes, the tenn
- Major Federal action" does not include *... bringing judicial or administrative civil or criminal I
enforcement actions...." This portion of the CEQ definition of " Major Federal action" is highlighted in section 51.10 of the Comission's regulations which addresses the purpose and scope of NRC's regulations implementing section 102(2) of NEPA and states in paragraph (d):
"(d) Commission actions initiating or relating to admini-strative 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, and matters covered by Part 15 and 160 of this chapter."
Althoug.i the Comrrission's regulations r. eke clear that enforcement matters are not subject to the NEPA pro:ess, there has been some uncertainty as to chether 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 fonral plans, such as official documents prepared or approved by federal agencies which guide or prescribe alternative uses of federal resources, upon which future agency actions will be based.
"(3) Adoption of programs, such as a group of concerted actions to implement a specific policy or plan; systematic and connected agency decisions allocating agency rssources 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 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
- include, among others, various written notices such as bulletins, infomation notices, generic letters, notices of deviation or non-conformance and confirmatory action letters. As use of the word
include" in the second sentence of section 51.10(d) makes clear, section 51.10(d) does not purport to provide a comprehensive list of Comission activities relating to enforcement. The types of enforcement actions mentioned were intended to be only illustrative.
As described in the Commission'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 infomal 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 NEFA status of such infomal 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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i United States Nuclear Regulatory Comission 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 reflected in a Confirmatory Action Letter, involved NRC action to reinstate the license.
The Court went on to uphold the NRC actions against related l
challenges. The case did not raise and the Court did not address any NEPA related issues.
L 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 actions to reestablish that licensed 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 resumption of licensed activities are the same and do not require additional environmental review.
Although the Comission 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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i enforcement activities specifically enumerated therein, it recognizes that 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 Commission, the conditions of operation previously reviewed in an environ-mental context will be restored.
Accordingly, when the NRC authorizes licensed activities to resume, no additional environmental review pursuant to NEPA or the Comission's regulations is needed.
If it should be necessary for the licensee to obtain a license amendment to restore compliance with the Commission'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 4
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 natura, relates solely to matters of agency practice and does not involve a significant question of policy, good cause exists for omitting notice of proposed 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. _
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Environmental Impact:
Categorical Exclusion The NRC has determined that this final rule is the type of action described in categorical exclusion 10 CFR 51.22(c)(2). Therefore, neither an j
environmental impact statement nor an environmental assessment has been
. prepared for this final regulation.
1 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 (44 U.S.C. 3501 et seq.).
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 aaministrative actions such as those described in L
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, g
l' information notices, generic letters, notices of deviation or nonconformance and confirmatory action letters. Section 51.10(d) of the Consnission's regulations is not limited to a portion of the Commission'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 spectrum of the Commission's enforcement l
activities is the appropriate means to achieve this end. l y
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Backfit Analysis The NPC 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) and therefore a backfit analysis is not required.
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List of. Subjects in 10 CFR Part 51 J
' Administrative practice and procedure Environmental impact statement, Nuclear materials, Nuclear power plants. and reactors, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble and under the authority of the Atomic ~ Energy Act of 1954, as amended, the Energy Reorganization Act of 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, as amended (42 U.S.C. 2201); secs. 201, as amended 202, 88 Stat.1242, as amended. 1244 (42 U.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, asamended(42U.S.C.4332,4334, l
4335); and Pub. L.95-604, Title 11, 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).
1 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.
J (d) Commission actions initiating or relating to administrative 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 l
reouests 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.
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V Dated at Rockville, Maryland, this day of 1989 For the Nuclear Regulatory Corvr.ission James M. Taylor Acting Executive Director for Operations e
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ENCLOSURE B
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STATEMENT OF ACTING EXECUTIVE DIRECTOR FOR OPERATIONS APPROVING FINAL RULE FOR PUBLICATION Approved for Publication
-The Commission delegated to the EDO (10 CFR 1.31(a)(3)) the authorit
' develop and promulgate rules as defined in the APA (5 U.S.C. 551(4))y to subject to the limitations in NRC Manual Chapter 0103, Organization and Functions, Office of the Executive Director for. Operations, paragraphs 0213, 038, 0?9, and 0310.
The enclosed final rule will revise 10 CFR 51.10(d) to make clear that this provision, which excludes Commission actions relating to enforcement from NEPA, not only includes formal enforcement actions but also includes 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 EnforcementActions,sectionV.H.)-
This final rule is a minor clarifying amendment, does not constitute a significant question of-policy and does not amend regulations contained in 10 CFR Parts 7, 8, or 9 Subpart-C concerning matters of policy.
I therefore-find that this-final rule is within the scope of my rulemaking authority and am proceeding to issue it.
Date Janes M. Taylor Acting Executive Director for Operations y
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ENCLOSURE C l.
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DRAFT ITEM FOR DAILY STAFF NOTES j
DAILY STAFF NOTES
. Final Rule Signed by Acting Executive Director for Operations On
, 1989, the Acting Executive Director for Operations 4
approved a final rule that revises 10 CFR 51.10(d) to make clear that this i
provision, which excludes Consnission actions relating to enforcement from NEPA, not only includes formal enforcement actions but also includes informal administrative mechanisms relating to enforcement such as bulletins, information notices, generic letters, notices of deviation, notices of nonconformance and confirmatory action letters. This minor clarifying amendment will assure a uniform understanding of the types of actions texcluded from NEPA under E 51.10(d).
This notice informs the Commission that, in accordance with the rulemaking authority delegated to the EDO, the Acting EDO has signed this final rule i
and proposes to forward it on -
, 1989 to the Office of the Federal Register for publication, unless otherwise directed by the Commission. The final rule will become effective on the~ date of publication.
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E' ENCLOSURE D DRAFT CONGRESSIONAL LETTER
[DRAFTTEXT]
The NRC has sent to the Office of the Federal Register for publication the enclosed clarifying amendment to section 51.10(d) of the Commission's rules in 10 CFR Part 51. This final rule will make cletir that section 51.10(d),
which excludes Commission actions relating to enicreement from the requirements of section 102(2) of the National Environmental Policy Act of 1969, as amended (NEPA) not only includes fctmal enforcement actions but also includes informal administrative mechanisms relating to enforcement such as bulletins, information notices, generic letters, notices of deviation, See 10 CFR notices of nonconformance and confirmatory action letters.
Part 2, Appendix C, General Statement of Policy and Procedure To,r NRC Enforcement Actions, section V.H.
This amendment will assure a uniform under section 51.10(d)ypes of enforcement activities excluded from NEPA understanding of the t The amendment will beco a effective on the date of publication in the Federal Register.
Sincerely,
Enclosure:
As stated r
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lY' IS ENCLOSURES: A-page 4; B-h; C-k; D-s
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