ML20046A813

Notation Vote Response Sheet Approving in Part & Disapproving in Part w/comments,SECY-92-382 Re decommissioning-lessons Learned

ML20046A813
Person / Time
Issue date:	12/07/1992
From:	Curtiss J NRC COMMISSION (OCM)
To:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
References
NUDOCS 9307300090
Download: ML20046A813 (6)

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RESPONSE SHEET T0:

SAMUEL-J. CHILK, SECRETARY OF THE C0fEISSION FROM:-

C0fMISSIONER CURTISS r

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SUBJECT:

SECY-92-382 - DEC0lEISSIONING - LESSONS LEARNED X

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APPROVED in part DISAPPROVED in part ABSTAIN

'i NOT PARTICIPATING REQUEST DISCUSSION-C0lEENTS:

5 See attachect comments.

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SIGNATURE RELEASE VOTE

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December 7, 1992 l

DATE.

-WITHHOLD VOTE

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ENTERED ON "AS" YES x

No-1$0006

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Commissioner Curtiss' comments on SECY-92-382:

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'I commend OGC for a thorough and insightful analysis of the decommissioning process in SECY-92-382.

With limited exceptions, I agree with, and support, OGC's recommendations.

Specifically--

1.

I agree that the Commission should amend 10 CFR-f 50.59 to provide guidance for applying section 50.59 after permanent shutdown, to the effect that one need not presume that the facility will resume operation so long as there is a possession-only license.- (POL), 'a confirmatory shutdown order, or other legally binding instrument to remove the authorization to operate the facility in place.

In addition, I would not object to an amendment to make section 50.59 expressly applicable to holders of licenses not authorizing operation.

2.

I agree that the Commission should modify its guidance on what activities are permissible prior to the NRC's approval of a licensee's decommissioning plan.

The Commission should modify that guidance, superseding the guidance in footnote 3 of CLI-90-06 and the Statements of Consideration for the decommissioning rules,1 to permit licensees to embark on any decommissioning activities so long as~those activities do not -- (a) foreclose the release of the site for unrestricted use, (b) significantly increase decommissioning costs, (c) cause any significant environmental impact not previously reviewer or (d) violate the terms of the licensee's existing license (e. a., OL, ' POL, OL with' confirmatory shutdown order, etc.).

In addition, I believe that-the Commission and the staff should take whatever steps may be necessary to allow licensees to use their decommissioning funds, prior to l

approval of the decommissioning plan, to undertake any decommissioning activity (as the term " decommission" is i

1 The Statements of Consideration currently specify that the NRC must approve major decommissioning activities --

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Although the Commission must approve the decommissioning. alternative and major structural changes to radioactive components of the facility or other major changes, the licensee may proceed with some g

l activities such as decontamination, minor component L

disassembly,'and shipment'and storage of spent fuel.

l 53 Fed. Reg. 24018, 24025-26 (June :2'7, 1988).

This guidance would be affected by the Commission's new approach.

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5 defined in 10 CFR'50.2) that these modified criteriaLwotild permit. 2 3.

I would not object to the staff's calling on licensees of shutdown plants to inform the NRC, at'an early.

stage,-of their general. plans for post-shutdown activities'at the-facility.

4.

I agree that the Commission should amend'the h

regulations'to provide for issuance ofta confirmatory

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shutdown order after a permanent cessation of p-operations.

I would not object to proposing, for

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notice and comment, amendments to the regulations that would define a POL, clarify which regulations in Part 50 apply to pols, and obviate the need for a licensee.

to apply for a POL or consolidate requests for relief I

from requirements premised on operation.

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5.

With regard to the issue of hearings on decommissioning.

plans, I have three comments:

a)

First, I have previously expressed my concern about an approach in which we would label a decommissioning. plan approval a " regulatory permission," declare such a " regulatory permission" to be the equivalent ofiallicense or-licensing action covered by section 189a. of the Atomic Energy Act of 1954, as amended, and then' decide on what type of hearing we should provide based on traditional agency hearing prrctice for licensing actions covered'by section 189a.

.As.I indicated in my-vote on SECY-92-140 - -

The Commission has been careful to confine the proceedings for which it believes a hearing must be offered to those actions which are explicitly listed in section 189a. (1)

(i.e.,

any proceeding under this Act for the granting, suspending, revoking or amending of any license or 2

For example, the staff may need to modify Regulatory l

Guide 1.159, Assuring the Availability of. Funds for

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Decommissioning Nuclear Reactors (September 1990), where the.

agency specifies, among other things, that decommissioning trust fund instruments should contain provisions that preclude a licensee from! accessing the funds until NRC approves the decommissioning plan.. Sgg Regulatory Guide 1.159, Appendix ~

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B.3.1, p. B-12.

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i I am not aware of any instance in which the Commission has interpreted section 189a._as providing a right to a hearing for i

proceedings beyond those expressly-l set out in 189a.(1).

The proposal to, treat.

. [a decommissioning plan approval) as a form of " regulatory permission subject to the post-effecciveness hearing requirements of the first sentence of section 189a." would appear to be just such an i

expansion.

A Commission ruling that a " regulatory permission" granted by the agency is among those actions for which section 189a. requires a hearing could, in my view, have serious legal ramifications.

As OGC points out, exemptions from.the regulations constitute a form of " regulatory

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permission."

So, too,.do waivers j

of ASME Code requirements _under 10 CFR 50.55a(g) (6) (i).

In fact,.much of what the NRC does in its routine regulation and oversight of the nuclear industry amounts to the grant or denial of ar" regulatory permission" of one form or another.

The implication of [a possible]

Commission ruling on " regulatory 1

permission"'is that many of NRC's day-to-day oversight activities could well wind up subiect to the notice and hearing requirements of section 189a.

t For these reasons, I believe the Commission should eschew the " regulatory permission" approach for determining the type and timing of hearings to be offered on decommissioning plans.

b)

Second, unless the NRC's approval of a decommissioning plan also involves a' license; t

amendment, there is no explicit requirement in the Atomic" Energy Act that the NRC offer a hearing on j

a decommissioning plan.

In fact, the only i

indication that the Commission-might consider offering a hearing on a-decommissioning plan (in

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t. : the absence of an attendant' license amendment) is-the statement in 10 CFR S 50.82 (e) that the

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commission will approve the plan: "after > notice to;

. interested 1 persons."

In the'absencefof any:

explicit requirement for hearings,'ILbelieve that-the hearing question -- whether to' offer a hearing; what type of hearing (formal or informal).

to offer; when the hearing should;be held -- is wholly a matter of Commission discretion. -In fact, I believe that the Commission has-the discretion to limit public participation and: input to notice of, and comment on, the proposed decommissioning plan.

3 Nevertheless, the Commission traditionally has offered the opportunity for hearings on decommissioning plans.

I would have ru) objection to continuing that practice, but I agree with.OGC that we should provide for the i

use of informal procedures for decommissioning plan hearings.

c)

Third, I disagree with OGC's recommendation that the Commission generally offer a post-effec.tiveness hearing on the decommissioning plan.

As I stated in my vote on SECY-92-140 --

[i]f we are serious in our desire I

to solicit and take into account the views of the public as part of our decisionmaking process, then we should establish.a process that ensures that those views are available to us and taken into-i account before rendering a decision

[on the final decommissioning plan).

1 I continue to believe that if sua are going to offer the opportunity for a hearing and seek meaningful public input on the finali decommissioning plan, it only makes sense to-obtain that input before the agency makes a decision on the adequacy of the plan.3 I

3 I realize.that,.with the approach to decommissioning that:

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is recommended in SECY-92-382, a licensee.could undertake decommissioning actions that would tend to foreclose:one.or more decommissioning options before'the NRC approved the final-decommissioning-plan.

In that circumstance,'a pre-effectiveness hearing on the. final decommissioning plan would not serve ascaL i

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would propose that,.as a. matter.of Commission

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policy, we offer. pre-effectiveness hearings on decommissioning plans.

J vehicle for the Commission to receive public input'on the decommissioning plan before decommissioning options: are foreclosed.

Nevertheless, a pre-effectiveness hearing in that case would serve the;public's interest in providing. views 1on the final decommissioning plan.before the Commission acts on that plan.

At the same time, a. pre-effectiveness hearing in that case ~

. ould not affect the licensee's. ability;to_ proceed with w

4 substantial decommissioning. work before the NRC approvesLits[ felt E

proposed decommissioning plan.-

If, however,' it is generally that a hearing would be meaningless under the approach recommended in SECY-92-382, then I believe.that the proper-course of action would be to eliminate the: hearing altogether..

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