ML20072M197
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'o UNITED STATES NUCLEAR REGULATORY COMMISSION
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WASHINGTON, D.C. 20555 j/
November 17, 1992 OFFICE OF THE COMMISSIONER MEMORANDUM FOR:
Samuel J.
Chilk 1
Secretary W
FROM:
James R.
Curtis
SUBJECT:
SECY-92-374:
FORT ST. VRAIN NUCLEAR GENERATING STATION (FSV) - PUBLIC SERVICE COMPANY OF COLORADO (PSC) - APPROVAL OF DECOMMISSIONING PLAN AND AMENDMENT OF LICENSE L
I have no objection to the course of action recommended by the l
staff in the subject SECY paper.
I would note in approving the staff's recommendation, however, that I do not view the agency's i
approval of the proposed decommissioning plan in this particular l
case as establishing a precedent for purposes of defining those actions that, in future cases, will require advance agency approval under the decommissioning rule prior to a. licensee undertaking such actions.
The steps or actions tilat Public Service Company of Colorado has set forth in this particular i
proposed decommissioning plan for which it, in turn, has sought agency approval pursuant to our decommissioning rule may or may not require advance agency approval in the context of other individual cases.
That question should be addressed on a case-by-case basis.
cc:
The Chairman l
Commissioner Rogers Commissioner Remick l
Commissioner de Planque l
9409010233 940629 l
PDR COMMS NRCC CORRESPONDENCE PDR
AFFIRMATI0N V0TE RESPONSE SHEET i
T0:
SAMUEL J. CHILK, SECRETARY OF THE COMISSION FROM:
C0l44ISSIONER CURTISS
SUBJECT:
SECY-92-368 - FINAL RULE AMENDING 10 CFR PART 52 X/in x/in APPROVED part DISAPPROVED Part ABSTAIN NOT PARTICIPATING REQUEST DISCUSSION C0t44ENTS:
See attached comments.
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SIGNATURE RELEASE VOTE
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November 17, 1992 DATE WITHHOLD VOTE
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ENTERED ON "AS" YES x
No I
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Commissioner Curtiss* comments on SECY-92-368:
With one exception, I approve this final rulemaking package.
The one exception concerns the proposed amendment to 10 CFR 52.97(b) to incorporate the so-called "Sholly" authority.
For the reasons set forth below, I cannot agree with the recommendation to amend 10 CFR 52.97(b) for the purpose of extending the provisions of the "Sholly" amendment contained in section 189a.(2) of the Atomic Energy Act to amendments to combined licenses (COLs) prior to authorization to operate.
Indeed, I believe that the adoption of this provision will serve to detract from the overall objective that we have established in Part 52 to achieve and maintain a high degree of standardization.
When section 52.97(b) was originally enacted by the Commission, it was adopted for the sole purpose of ensuring that the level of standardization reflected in a COL, once issued, would not be diluted by subsequent changes that a COL holder might seek during construction.
Recognizing that such changes should not be foreclosed altogether, the approach taken by the Commission in section 52.97(b) was to establish a stringent procedural hurdle for the COL holder who wishes to seek a change in its COL, once issued:
Section 52.97(b) provides that any such changes would be treated as amendments to the COL (thereby requiring a hearing upon request), and that the hearing on any such amendments would have to be completed before operation of the facility.
This approach, the Commission reasoned at the time, would serve to provide yet another strong disincentive against a COL holder seeking changes to a COL, once issued.'
Indeed, it was exactly this point that the Commission emphasized in its response to a question on this matter from one of our oversight Committees:
The Commission did not extend Sholly as a policy choice because it wanted to discourage late changes to combined licenses or to the ITAAC therein.
Such changes could have the effect of undermining standardization or changing the scope of imminent or pending hearings on conformance iscues.
Hearing Before the Subcommittee on Nuclear Regulation of the Committee on Environment and Public Works, United States Senate, on the Nuclear Licensing Provision in S.1220, the National Energy Security Act of 1991, January 23, 1992 (Committee Print), p.
56 (emphasis added).
1 It should be noted that a COL holder is permitted to make certain changes in its COL, if those changes satisfy the criteria of thu SG.59-type change procedure.
These 50.59-type changes are not considered amendments, and hence would not be subject to the requirements of 52.97(b).
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This same point was set forth quite persuasively by Chairman Selin in that same hearing:
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The Commission specifically did not put (the "Sholly" provision) into part 52.
We are not interested in encouraging design changes, particularly in the standardization area We want to discourage changes -- random changes -- even if they don't, in themselves, have a health and safety impact, because we believe the totality of the configuration has a health and safety impact so we c'onsciously did not put that in part 52.
4 Remarks of Chairman Selin, id, p. 22.
In my view, the fundamental policy of section 52.97(b) remains equally sound today.
Hence, the only question that remains, in my judgment, is whether the recently-enacted Energy Policy Act of 1992 dictates a different result.
In this regard, I would note that the Act gives the Commission the discretion to decide whether to modify Part 52 in a manner that would permit COL l
amendments to be made immediately effective where such amendments involve no significant hazards considerations.
Of particular note, section 2803 of the Energy Policy Act provides that --
The Nuclear Regulatory Commission shall modify part 52 of title 10, Code of Federal Regulations, to conform with sections 185b. and 189a. (1) (B) of the Atomic Enerav Act of 1954. as amended by sections 2801 and 2802 of this Act, not later than 1 year after the date of the enactment of this Act (emphasis added).
This provision, which enumerates those sections of the Act for i
which we must adopt conforming regulations, is limited by its terms to sections 2801 and 2802 of the Act.
It does not reference section 2804, the section of the Act containing the "Sholly" provision.
As a consequence, I read the Act as giving the Commission the discretion to decide whether we wish to extend the "Sholly" authority to COL amendments.
j In light of the discretion that we have, and based upon the reasons set forth above, I would not modify section 52.97 (b), as proposed by OGC.2 In all other respects, I approve the approach 2 In the alternative, if it is the will of the majority of the Commission to modify section 52.97(b), I believe this is a matter that deserves -- and indeed requires -- public comment.
I say this not only because of the significant policy considerations involved here, but more importantly because, as a legal matter, if Congress has conferred upon the Commission the I
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i recommended in SECY-92-368.
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discretion to decide what approach to take in the regulations that we adopt to implement the statute, the justification for
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publishing this change as a final rule (i.e. that we are simply adopting the language of the newly-passed Act) no longer obtains.
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POLICY ISSUE October 27, 1992 (NEGATIVE CONSENT)
SECY-92-365 For:
The Commissioners From:
James M. Taylor Executive Director for Operations Sub.iect :
GENERIC LETTER ON THE AVAILABILITY AND ADEQUACY OF DESIGN BASES INFORMATION
Purpose:
To request the Commission to review draft Generic Letter 92-XX, " Availability and Adequacy of Design Bases Information" as stated in staff requirements memorandum (SRM 92-193) dated June 24, 1992 on Design Bases Reconstitution and to apprise the Commission that public comments on the generic letter will be solicited prior to issuance.
OFFICE OF CdMMISSIONER CURTISS Date:
10/28/92 Action Reviewed By:
J
~
Due Date:
11/10/92 Coordinated With:
Kevin Connaughton Recommend:
ed.
Remarks:
SECY-92-365:
(Negative Consent) - Generic letter on the availability and adequacy of design bases information
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