ML20044B921
| ML20044B921 | |
| Person / Time | |
|---|---|
| Issue date: | 03/09/1993 |
| From: | Parler W NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Rogers, Selin I, The Chairman NRC COMMISSION (OCM) |
| References | |
| NUDOCS 9303150008 | |
| Download: ML20044B921 (7) | |
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MEMORANDUM FOR:
The Chairman Commissioner Rogers Commissioner Curtiss Commissioner Remick Commissioner de Plangue FROM:
William C.
Parler i
General Counsel
SUBJECT:
LICENSE RENEWAL AND SECY 93-049 As explained more fully below, staff's proposal in SECY-93-049 for integrating the requirements of the license renewal rule and the plant maintenance rule.c_a0 be implemented so as to satisfy the literal language of both rules.
However the proposal which provides an alternative approach that a licensee may use to satisfy the renewal rule will require an interpretation of the renewal rule which departs from the Commission's explanation of its intent and understanding of how the rule would apply in the statement of considerations accompanying notice of final rulemaking in the Federal Register. We believe that NRC may adopt the interpretation without amending the rule, although the interpretation should be acknowledged as a departure from the Commission's explanation of the final rule in the statement of considerations and supported by strong reasons.
The Commission may wish to consider issuing an interpretive rule, and exercise its discretion to follow notice and comment proposed rulemaking procedures, if it agrees with the staff's approach and wants to offer assurance to licenses considering renewal that its explanation of intent as to how the rule would be applied will not be changed in a fundamental way in the future without going through rulemaking procedures.
Providing for notice and comment on the interpretive rule should also either moot or mitigate any questions whether the staff's proposal is consistent with the renewal rule.
We began first with a statement of certain of the fundamental principles of license renewal set forth in the Part 54 notice of
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final rulemaking.
One principle was that, because of the breadth and vigor of the licensing and regulatory oversight process for licensed reactors, license renewal did not require a formal review I
of the full range of safety issues.
However, the Commission also concluded that "certain age related degradation that may be i
important in the period of extended operation is not required to be addressed during the present license in a manner that would be adequate for the period of extended operation (54-SC-12, Col. 3).
This led the Commission to conclude that "a
formal, disciplined licensing review of age-related degradation unique to license renewal is necessary" (54-SC-13, Col 1).
The second fundamental principle was that "the plant-specific licensing basis (CLB) must be maintained during the renewal term in the same manner and to the same extent as during the original license term" (54-SC-11, Col 2),
except that the CLB could be amended in a process separate from and prior to renewal (54-SC-12, Col. 1).
These two fundamental principles are the legal underpinning for the basic theory of license renewal that applicants need not address the hundreds of safety issues relevant both to current and extended operation, but must provide an effective program for managing age related degradation unique to license renewal to assure continued compliance with the CLB.
Turning to the language of the regulation,10 CFR 54.21(a) requires renewal applicants to submit an integrated plant assessment (IPA).
The IPA includes an identification and screening part (54.21(a) (1-
- 5) and an " effective programs" part (Se. 21(a) (6) ).
Of relevance here, the screening part of the IPA must include identification of a specified subset of plant structures and components (SCs)
(54.21(a) (1)--(2) ).
For this subset, applicant must both " identify the SCs that could have age-related degradation that is unique to license renewal
[ARD-UTLR]"
(54. 21(a) ( 3 ) ),
and
" describe and justify the technical criteria to be used in determining whether an SC is subject to age-related degradation unique to license renewal" (54.21(a) (4) (iii).
In the effective programs part of the IPA applicant must describe the effective programs and
" demonstrate that they will be effective in maintaining the CLB during the period of extended operation."
- 54. 21(a) (6).
Effective programs must, among other things,
" ensure identification and mitigation of age-related degradation unique to license renewal."
54.21(a) (6) (i).
The staff proposal for integrating the renewal and maintenance rules would allow a licensee to assume for purposes of 10 CFR
- 54. 21 ( a ) ( 3 )
that an SC could be subject to ARD-UTLR, thereby skipping part of the IPA screening process.
The staff approach presumes that a licensee would do this for most SCs important to i
3-license renewal.'
Staff than proposes that a
broad based maintenance program based on the maintenance rule, coupled with appropriate acceptance criteria, be developed so that all age-related degradation for all SCs would be managed effectively both during the current term and the extended term.
The most obvious legal question presented by staff's proposal is whether the renewal rule itself requires identification and evaluation of ARD-UTLR for specific SCs in the renewal acclication as part of the step-by-step process required by 10 CFR 54.21.
As we understand it, staff's proposal hinges on an interpretation of the renewal rule to the effect that an effective program sufficient for license renewal may consist of a program of surveillance, testing, and corrective actions which will mitigate age-related degradation and ensure timely future identification and evaluation of ARD-UTLR, if it should occur.
The parts of the renewal rule relevant to this question are 10 CFR 54.21(a)(3),
(4 ) (iii) and (6) (i).
As part of the screening process, the rule requires applicants to identify the SCs that "could have" ARD-UTLR and to " describe and justify the technical criteria" to be used for this purpose.
Staff's proposal would permit a license to assume that mort SCs are subject to ARD-UTLR so that the renewal application would not need to include any specific identification and evaluation of ARD-UTLR for specific SCs.
The definition of ARD-UTLR in Part 54 includes degradation "whose effects were not explicitly identified and evaluated by the licensee for the period of extended operation and the evaluation found acceptable by the NRC" (10 CFR 54.3).
Therefore the rule specifically addresses the circumstances where ARD-UTLR is not identified and evaluated as part of the screening process for all or some SCs, and provides in effect that in this circumstance the SC is deemed subject to ARD-UTLR and must be covered by an effective program.
Thus permitting a licensee to assume that most SCs are subject to ARD-UTLR produces a result contemplated by the rule.
Moreover, at this point in the analysis there is no adverse safety consequence because the result s a broader effective program than the rule might otherwise require.
In this regard, the provision in 54.21(a: (4) (iii) requiring identification and justification of the " technical criteria" used for determining ARD-UTLR in the screening process can reasonably be read to refer to these circumstances where applicant does choose to perform an explicit identification and evaluation of ARD-UTLR for specific SCs in the screening process.
The staff indicates that it would require a very large 1
ef fort to explicitly identify and evaluate the ef fects of potential i
degradation =echanisms for each SC important to license renewal and that, based or. its experience, most SCs would be categorized as "could have" ARD-UTLR under 54.21(a) (3).
-4 Section 54.21(a)(6) also requires that effective programs must
)
" ensure identification" of ARD-UTLR, but is not crystal clear whether the effective program set forth in the renewal acolication I
must include this identification or whether the application may merely set forth a program for timely future identification.
The use of the term " ensure" as opposed to " include" suggests a future identification, but the rule language would allow for either interpretation, and the latter interpretation could be adopted to support staff's proposal.
Thus the renewal rule lanaunce can easily be interpreted in a manner so as to be consistent with the staff's proposal.
However there are explicit indications in the Commission's explanation of the rule in the rule preamble (i.e. statement of considerations) that the Commission contemplated something dif ferent when the final rule was issued.
Specifically there are numerous indications that the Commission anticipated that the IPA itself would include identification and evaluation of ARD-UTLR for SCs.
The IPA, among other things, " consists [of).... an evaluation of the age-related or performance degradation of those SSCs important to license renewal" (54-SC-13, Col. 1)2, and requires the applicant "to gain the necessary understanding of aging mechanisms" and to " review the SSC
- design, fabrication, installation, testing (including performance and non-destructive testing), inservice inspections, operation, and maintenance to the extent necessary in performing the IPA" (54 SC 15, Col. 2).
Numerous aspects of an adequate IPA are described as " dependent on factors such as the specific type of structure or component and the applicable degradation mechanisms" (54 SC-16, col. 2)
Existing licensee programs may not constitute an adequate IPA because they may not include "an evaluation of the possibility of age-related degradation problems unique to license renewal" (54 SC-14, Col.
3).
"The Commission concludes that a f ormal review of age-related degradation unique to license renewal is needed at license renewal to ensure that operation during the period of extended operation will not be inimical to the public health and safety," (54-SC-4, Col. 2, emphasis added). The staf f 's proposal that no specific evaluation of ARD-UTLR be performed for most SCs before renewal is at variance with the Commission's indications in the statement of considerations of how the rule would be implemented when the rule was issued.
Courts defer to agencies' reasonable interpretation of their own regulations, even where the interpretation may not appear as reasonable as some other alternative.
Udall v.
Tallman, 380 U.S.
1 (1965).
Accordingly there is no serious question that staff's proposal would stand as an initial interpretation of the renewal rule.
2 Citations are to the three-ringed binder collection of "!JRC Rules and Regulations."
. We have not found any cases where as here a Federal agency departed from an explicit explanation of the intent of a regulation in the regulation's statement of considerations without going back and amending the rule.
However as a general rule agencies are not absolutely bound even by prior interpretations and may adjust policies in light of experience.
American Truchino Assoc.
v.
Atchison, Topeka & Santa Fe Rv, 387 U.S. 397 (1967); Montana Power Co. v.
EPA, 608 F.2d 334 (9th Cir. 1979).
In principle explanatory language in a rule preamble is not binding and merely represents guidance and expression of current intentions and policy.
Powell
- v. Andrus, 631 F.2d 699 at 705 (10th Cir.1990); Attorney General's Manual on the APA, pg. 128.
Therefore in principle an explanation in a rule preamble may be departed from just as any matter of interpretation may be changed.
However there are _ases indicating that the weight to be afforded a given agency's interpretation depends on its consistency with prior pronouncenents, e.o.,
Morton v.
Ruiz, 415 U.S. 199 (1974).
In this case, given the explicit relevant explanatory language in the rule preamble, including the express finding that a formal review of ARD-UTLR at license renewal is needed to ensure that extended operation "will not be inimical to the public health and safety" (54-SC-4, Col.
2),
and the fact that the earlier explanation accompanied the publication of the final rule itself adopted a little over one year ago, we can expect that the ordinary judicial deference will be tempered by skepticism regarding the revised position.
The NRC's justification for the change -- from the expectation in the rule preamble that the formal review of ARD-UTLR at the license renewal stage would involve an explicit assessment of mechanisms or effects of ARD-UTLR, to the proposed position that the required review of ARD-UTLR at the license renewal stage can be satisfied by a review of an effective program which assures the identification and mitigation of ARD-UTLR should it occur during extended operation -- will therefore need to be strong.
In view of the cited Commission finding that safety requires a review of ARD-UTLR in the renewal application, this justification should not be based on consideration of economic costs.
Thus the reasons for the change on position should explain, if possible, that the new implementation concept provides the same level of safety as the one contemplated when the rule was published.
In any event, it would be helpful if the reason for the change could be related to new technical insights bearing on the feasibility of the originally contemplated approach rather than economic costs.
Therefore the Commission may adopt a different position supporting the staff's approach so long as the Commission provides a legally sufficient explanation of the basis for the change in the explanation which accompanied the final rule.
i Another but less difficult question of rule interpretation is presented by the staf f's proposal to require timely identification of age-related degradation effects but not necessarily age-related degradation mechanisms.
Again the rule language is somewhat
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ambiguous, but tends overall to support focus on effects.
The definition of ARD-UTLR in 10 CFR 54.3 focuses on effects.
The statement of considerations quoted on pages 4-5, especially the statement that the IPA requires the applicant to " gain the necessary understanding of aging mechanisms" (54 SC 15, Col. 2),
supports a reading of Part 54 that would require the renewal application to identify or at least include a program for timely future identification of aging mechanisms.
On the other hand other portions of the statement of considerations would allow an exclusive focus on aging effects, for example, "the IPA should contain a demonstration that.for all structures or components identified as being subject to (ARD-UTLR]
the degradation j
mechanisms 2r effects well be addressed (54 SC-13, Col. 2).
l Given the ambiguity, and the case law cited above, there should be no problem with adoption of the staff's approach on this score.
Nevertheless the staff's proposal will still present possibly difficult technical safety issues for review and resolution (and possible administrative hearing) in each plant life extension proceeding. NRC must still evaluate prior to renewal whether, for a large category of SCs, a broad based maintenance program that includes inspection, monitoring and corrective action can be found adequate to penace ARD-UTLR without any actual identification or plan for identification of specific potential degradation mechanisms for those particular SCs.
The dimensions of the litigation risk (the likelihood that testimony supporting the adequacy of the IPA without ovidence of a systematic study of potential credible aging mechanisms will be found persuasive) cannot be assessed very accurately in the absence of a concrete case study.
Another issue presented by staff's proposal relates to the CLB.
Under the renewal rule an applicant must " demonstrate that these (effective) programs will be effective in maintaining the CLB during the period of extended operation."
Use of maintenance programs developed under the maintenance rule to satisfy the renewal rule therefore requires that, in order for a maintenance program to constitute an adequate and effective program for renewal, the maintenance objective must be compliance with the CLB, not with some other possibly dif ferent risk-based objectives.
Staff's proposal also hinges on the proposition _that acceptance criteria established under technical specifications and regulations and used in combination with the maintenance program objectives will be effective to maintain the full CLB for many if not most SCs.
This may well be the case.
However each CLB will need to be examined to be
- sure, and some difficult CLB interpretation questions may arise, especially in cases where the maintenance
W program objectives contemplate corrective action only following SC failure.
Again the possible dimensions of this problem cannot be fully assessed without a concrete case study in which the CLB is fully identified.
d William C.
Parler General Counsel ec:
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