ML20126G042
| ML20126G042 | |
| Person / Time | |
|---|---|
| Issue date: | 12/16/1992 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| FRN-57FR60975, RULE-PR-52 NUDOCS 9301040032 | |
| Download: ML20126G042 (22) | |
Text
v ..a a C7." f "
"qpjeg com) w[7590-01)
NUCLEAR REGUIATORY COMMISSION '92 DEC 16 P 3 :34 10 CFR Part 52 , ,
.l u. . ,t RIN 3150-AE42 NU Combined Construction Permits and operating Licenses; Conforming Amendments AGENCY: Nuclear Regulatory Commission.
ACTION: Finni rule.
SUMMARY
- The Nuclear Regulatory Commission ("HRC" or
" Commission") is amending its regulations governing the issuance of combined construction permits and operating licenses for nuclear power plants. The final rule incorporates all the changes to these provisions that are necessary because of the enactment of licensing reform legislation. The amendments serve to conform the regulations to the provisions of Title XXVIII of Public Law 102-486, the " Energy Policy Act of 1992," signed into law on October 24, 1992.
/ /1 1 / 93 DATES: The rule becomes effective (30 days after publication in Submit comments by (60 days .z a/11M3 the Federal Register.) fter publication in the Federal Register).
ADDRLSSES: Submit written comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Attnt Docketing and Service Branch. {$ !
k
. , - .-.. - ,- .... ,.. , . -~ ~- -
R , ; deliver comments tot 11555 Rockville Pike, Rockville, Maryland 20852, between 7: 45 am and 4:15 pm Federal workdays.
(Telephone 301-504-1966.)
Copics of commento received may be examined at the NRC Public Document Room at 2120 L Street NW., Washington, DC 20555, in the lower level of the Gelman Building.
FOR FURTHER INFORMATION CONTACT: L. Michael Rafky, office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone: 301-504-1606.
SUPPLEMENTARY INFORMATION:
I. Background.
II. Soction-by-section Analysis.
III. Environmental Impact: Categorical Exclusion.
IV. Paperwork Reduction Act Statement.
V. Regulatory Analysis.
VI. Backfit Analysis.
I. Background Title XXVIII of Public Law 102-486, the " Energy Policy Act of 1992," signed into law on October 24, 1992, amends the Atomic Energy Act to-facilitate the standardization of nuclear power plants and to provide explicit authority for the issuance of combined construction permits and operating licenses. The 2
l 4
legislation largely codifies the commission's regulations in 10 CFR Part 52. However, the legislation also makes several changes to the licensing process set forth in those regulations.
The purpose of this rule is to make those changes necessary to conform the language of Part 52 to the provisions of the newly enacted Public Law. Because these changes are limited to incorporating the language of that statute into the regulations, the HRC finds, pursuant to 5 U.S.C. 553 (b) (B) , that there-is good cause not to seek public comment on this rule, as such comment is unnecessary. The rule will become et.'ective 30 days af ter the date of publication in the Federal Register. Nevertheless, any interested member of the public who believes that the commission has not accurately conformed Part 52 to Title XXVIII of Public Law 102-486, the Energy Policy Act of 1992, is invited to submit comments on this matter within 60 days of the date of publication of this rule.
The final rule incorporates all necessary changes resulting from enactment of licensing reform legislation. The significant changes --
(1) Provide that the commission may authorize a plant ,
to operato during the pendency of a post-construction hearing on a combined construction permit and operating license (combined license) if it makes certain specified safety findings.
3 1
Previously, under Part 52, a post-construction hearing had to be ,
comp.ated prior to operation; (2) Provide the Commission with the discretion to order use of either formal or informal procedures for a post-construction hearing on a combined license. Previously, under Part 52, only formal procedures wer'e permitted; (3) Provide the Commission with the discretion to permit post-construction license amendments to a combined license, notwithstanding the pendency of a hearing request, to become effectivo if the commission makes a finding of "no significant har.ards considerations." Previously, Part 52 required that hearings be completed prior to commencement of operation; (4) Eliminate the requirement. that there be a pre-operational antitrust review by tk.e Department of Justice of a combined license if there havs been significant developments from an antitrust perspective arising since the issuance of the combined license; and (5) Eliminate the requirement that a combined license include the earliest and latest construction completion dates.
The amendments to the rule incorporate these changes as well as other less significant changes to ensure that Part 52 conforms as closely as possible to the statutory language.
In addition, 10 CFR 52.8 is being amended to correct a typographical error and to make revisions of a minor administrative n;sture.
4
II. Section-by-section Analysis The following analysis of those sections that are affected under this final rule provides additional explanatory information. All references are to Title 10, Chapter I, U.S. Code of Federal Regulations.
Eoction 52.8 Infj;ginat;. ion cQ.1,lgetion reaginstents 2 OMD__annroval. ;
This section is revised to correct data provided in accordance with an office of Management and Budget (OMB) regulation regarding the information collection requirements contained in this part. In naragraph (a), a typographical error in the OMB approval number is corrected. In paragr*,-1, -(b) , four sections are added to the list of sections cont *.ining approved information collection requirements. These revisions are of a minor administrative nature and are made to improve the accuracy of the information in this section and to comply with OMB regulations.
Section 52.79 Contents qf ann 11 cations; technical information.
The language of this section provides explicitly that the inspections, tests, analyses, and acceptance criteria must include those applicable to emergency planning and that the objective of the inspections, tests, analyses, and acceptance 5 ,
{
critoria is to provide reasonable assurance that the facility was constructed and vill operate in conformity with the combined license, the Atomic Energy Act, and the commission's rules and regulations.
Section 52.83 Aonlicabili.tv of Part_10 nrovisions.
4 This section has been revised to remove the applicability of certain provisions of Part 50 which are no longer required under the legislation. These include S 50.55(a), (b) and (d), which had required a construction permit for a nuclear power reactor to state the earliest and latest dates for the completion of the facility's construction, and other conditions thereof; and S 50.58, which had required applications for construction permits or operating licenses to be reviewed by the Advisory Committee on Reactor Safeguards (ACRS). A final change to S 52.83 is the substitution of a reference to "S 52.99" for "5 52.103." This was done because the findings to which 5 52.83 refers are now contained in 5 52.99.
Sggtion 52.97 Issuance of combined licenses.
This section has been amended with regard to making amendments to a combined license immediately effective under the so-called "Sholly Amendment." Under the Energy Policy Act, an amendment to a ecmbined license can be made immediately effective 6
l
?
if the commission determines there are no significant hazards considerations. This section of the rule has been revised to incorporate the statutory provisions and previously issued commission regulations implementing the "Sholly" amendment. The ;
commission, however, stresses that it will not look with favor upon license amendments to a combined license filed chortly before planned cperation that could have the effect of ,
undermining standardization or changing the scope of imminent or ,
pending-hearings on conformance issues.
Section 52.99 InsDection durina con 2truction.
Like the other amended sections of Part 52, this section has been changed to track the language of the Energy Policy Act. In thiu case, the only change is to require explicitly that, prior to operation under a combined license, the conmission shall find that the prescribed acceptance criteria are met.
Engi, ion 52.101 Pre-operational antitrust review. ,
This section, which has been deleted as a result of the new legislation, had provided for a pre-operational antitrust review of a combined license by the Department of Justice if there had been significant antitrust-related developments arising after the issuance of that license.
i 7
_ .m . -. . . m.
Sagtign 52.in3 Ooeration under a combingd license.
In an effort to adhere as closely as possible to the new statutory requirements of the Energy policy Act, the NRC has replaced most of its old section 5 52.103 with the text of section 2802 of that Act. Under the revised language, any request for a post-construction hearing must show, prima facia, both that one or more of the acceptance criteria are not or will not be met, and those specific operational consequences of nonconformance that would be contrary to providing reasonable assurance that the public health and safety will be adequately protected. The Commission may permit interin operation of a facility pending a hearing if it determines that this assurance exists. The Commission has the discretion to decide if any post-construction hearing will use formal or informal hearing procedures, and it must state publicly the reasons for choosing either set of procedures. The Commission must find, prior to operation of the facility, that the acceptance criteria have been met. The procedures with regard to S 2.206 petitions remain the same. Additionally, there is now a new paragraph (g), which is a modified version of old S 52.103(c). The Commission has done !
nothing in this section other.than to incorporate the language of the Energy Policy Act into its rule.
8
Commissioner Curtiss' S_eDarate Views on F1 1al_Egles Amendina 10 CFR.? art 52 tp_Incarocrate Provisions of th L?nerav Policy Act:
With one exception, I approve the above final rulemaking changes to incorporate the provisions of the Energy Policy Act.
The one exception concerns the proposed amendment to 10 CPR 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 CPR 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 licensen (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 S 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 5 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 9
4 i- - . . . . . . .. .. .
j
- - - - ~ . . . . - - - - . - . - _ _ ~ ~ . - - . . _ - . - - . - - - . - - - - . . - - _ . _
i request), and that the hearing on any such amendments woald have to be completed bef>re 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.1 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 nolicy choice +
because it wanted to discourage late changes to combined licenses or to the ITAAC the,ein. Such changes could have the effect of undernining standardization or changing the scope of irminoat or pending hearings on conformance issues.
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).
2 It should be noted that a COL holder is permitted to make certain changes in its COL, if those changes satisfy the criteria -
of the S 50.59-type change procedure. These S 50.59-type changes are not considered amandments, and hence would not be subject to the requirements of S - 52.97 (b) .
10 r--- 4 -e - . - v-n ,, 1-.m,- . .-r--v.,,.- ,- ,,,v, -, .,g:-,-v--
-w-, w.,- ,- r,-- nu , --- -a
Tnis same point was set forth quite persuasively by Chairman :
Selin in that same hearingt 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 consciously did not put thnt in part 52.
Remarks of Chairman Selin, 14. p. 22.
In my view, the fundamental policy of S 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 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 --
11
4 The Nuclear Regulatory Commission ghall modify part 52 !
of title 10, Coaa of Federal Regulations, ig_confQIn with sections 185b. a nd _189 a .J.11J B) of the--AtRaiG r
Enerav Act of 1954. as aACDded by,nections 2001 and lad 2 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 which we munt adopt conforming regulations, is limited by its terms to sections 2801 and 2002 of the Act. It does nqt reference section 2804, the section of the Act containing the "Sholly" provision. As a conuequence, I read the Act as giving the Commission the discretion to decide whether we wish to extend the "Sholly" authority to COL amendments.
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 in this rulemaking.2 In all other respects, I approve the changes to Part 52 that are proposed herein.
8 In the alternative, if it is the will of the majority of the Commission to modify S 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 la'rolved here, but more importantly because, as a legal matter, if Congress has conferred upon the Commission the discretion to decide what approach to take in the regulations that we adopt to implement the statute, the. justification for publishing-this change as a final rule (1xei that we are simply adopting the language of the newly-passed Act) no longer obtains.
12
1 l
d Addit 19.naL_Y.igys_ of commiaaignen_lELqcIs,.. Mmick .ansLste_El.ananc.
If the commission were to leave 5 52.97(b) as it stood before enactment et the Energy Policy Act, requjring a prior hearing on every proposed postconstruction amendment to a combined license, our regulations would have been inconsistent with the Act. This is the view of the Commission's General counsel, and we adopt it ao our own. It is clear that Congress intended that the Sholly amendment be availablo for use with each
- combined license, because Congress did in. fact amend Section 189a.(2) of the Atomic Energy Act to make the Sholly provisions available for use with each combined license. Con?rces thereby gave us the discretion in each individual case to decide, according to the Sholly provisions, whether to make an amendment immediately effective, but Congress did not give us the discretion to write rules which directly contradict the newly amended Sholly provisions. Standardization is afforded considerable protection by Part 52. We have no cause to try to protect it further by, in effect, trying to rewrite the newly amended Sholly provisions.
We would emphasize that the statutory provisions merely give us the discretion to make an amendment to a combined license immediately effective if it satisfies the criteria of Section 189(a) of the Atomic Energy Act. The Commission would retal..>>-
discretion to require a prior hearing in a specific case.
13 1
III. 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 environmental assessment nor an environmental impact statoment has been prepared for the final regulation.
IV. Paperwork Reduction Act Statement This final rule doos not contain a new cr amended information collection requirement sv.bject to the Paperwork Reduction Act of 1980 (4 4 U.S.C. 3501 et seq.). Existing requirements were approved by the office of Management and Budget, approval number 3150-0151.
V. Regulatory Analysis The Nuclear Regulatory Commission has made statutorily mandated changes in 10 CFR Part 52 in order to conform it to the language of the Energy Policy Act of 1992. These changes reflect Congressionally mandated changes to the NRC's licensing process for power reactors. Only future applicants for combined construction permits and operating licenses will be affected by the changes to the regulations.
14
j l
VI. Backfit Analysis l The NRC has determined that the backfit rule, 10 CFR 50.109, does not apply to this final rule and that a backfit snalysis is not required for this final rule. The backfit analysis is not required because these amendments are required by law and do not require the modification of or additions to systems, structures, -t components, or design of a facility or the design approval or manufacturing license for a facility or the procedures or organization required to design, construct or operate a fucility.
L List of Subjects ;
Part 52 - Administrative practice and procedure, Antitrust, Backfitting, Combined license, Early site permit, Emergency planning, fees, Inspection, Limited work authorization, Nuclear power plants and reactors, Probabilistic risk assessment, Prototype, Reactor siting criteria, Reiress of site, Reporting and recordkeeping requirements, Standard design, Standard design certification.
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR Part 52.
15
9 4
PART 52-EARLY SXTE PERMITS; STANDARD DESIGN CERTIFICATIONS; AND COhli1NED LICENSES FOR NUCLEAR POWER PLANTS
- 1. The authority citation for Part 52 continues to read as follows:
AUTiloRITY: Secs. 105, 104, 161, 182, 183, 186, 189, 68 '
Stat. 936, 948, 953, 954, 953, 956, as amended, sec. 234, 83 Stat. 1244, as am9ndeG '42 U.S.C. 2133, 2201, 2232, 2233, 2236, 2239, 2282); seca. 201, 202, 206, 88 Stat. 1242, 1244, 1246, as amended (42 U.S.C. b841, 5842, 5846). ,
- 2. Ssation 52.8 is revised to read as follows:
S 52.8 Information collection requirements: OMB approval.
(a) The Nuclear Regulatory Commission has submitted the information collection requirements contained in this part to the Office of Management and Budget (OMB) for approval as required by the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.). -
OMB has approved the information collection requirements contained in this part under control number 3150-0151.
(b) The approved information collection requirements contained in this part appear in $$ 52.15, 52.17, 52.29, 52.35, 52.45, 52.47, 52.57, 52.63, 52.75, 52.77, 52.79, 52.91 and 52.103.
16
_ _ _ e.. ..,_...J._ -.
. . - _ - . _ _ _ . . _ _ _ _ ._. ___ _ _ ._ _ _ _ . ~ . _ . _ . . _ . _ ..
4
- 3. In $ 52.79 paragraph (c) is revised to read as follows:
5 52.79 Contents of applications; te.hnical information.
(c) The application for a combined license must include the proposed inspections, tests and analyses, including those applicable to emergency planning, which the licenses shall perform and the acceptance criteria therefor which are necessary and sufficient to provide reasonable assurance that, if the inspections, tests and analyses are performed and the acceptance criteria met, the facility has been constructed and will operate in conformity with the combined license, the provisions of the Atomic Energy Act, and the NRC's regulations. Where the application references a certified standard design, the inspections, tests, analyses and acceptance criteria contained in the certified design must apply to those portions of the facility design which are covered by the desAgn certification.
- 4. Section 52.83 is revised to read as follows:
S 52.83 Applicability of part 50 provisions.
Unless otherwise specifically provided for in this subpart, all provisions of 10 CFR Part 50 and its appendices applicab)e to holders of construction permits for nuclear power reactors also apply to holders of combined licenses issued under this subpart.
17
.a = . , .- ,. -. - - - - . . .. , ._
similarly, all provisions of 10 CFR part 50 and its appendices applicable to holders of operating licenses also apply to holders of combined licenses issued under this subpart, once the Commission has made the findings required under S 52.99, provided that, as applied to a combined license, 10 CFR 50.51 r.ust require that the initial duration of the license may not exceed 40 years from the date on which the Commission makes the findings required
- under S 52.99. However, any limitations contained in Part 50 regarding applicability of the provisions to certain classes of facilities continue to apply. Provisions of 10 CFR Part 50 that do not apply to holders of combined licenses issued under this subpart include SS 50.55(a), (b) and (d), and 50.58.
- 5. In 5 52.97 paragraph (b) is revised to read as follows:
S 52.07 Issuance of combined licenses.
(b)(1) The Commission shall identify within the combined <
license the inspections, tests, and analyses, including those applicable to emergency planning, that the licensee shall perform, and the acceptance criteria that, if met, are necessary and sufficient to provide reasonable assurance that the facility has been constructed and will be operated in conformity with the-license, the provisions of the Atomic Energy Act,-and the Commission's rules and regulations.
(2) (1) Any modification to, addition to, or deletion from ,
the terms of a combined construction and operating license, I
18 i
{
, ..-m, . - , . _ . . . _ _ , , , . . . . , - , , . . _ . . _ _ . , _ , . . . _ _ . . _ . . ~ . _ _ -- ~ _ . . - . _ _ . . - . _ , . - , , , _ _ - _ . _ _ , _ . .
e including any modification to, addition to, or deletion from the inspections, tests, analyses, or related acceptance criteria contained in the license is a proposed amendment to the licence.
There must be an opportunity for a hearing on these amenCments.
(ii) The Commission may issue and make immediately effective any amendment to a combined construction and operating license upon a determination by the Commission that the amendment involves no significant hazards consideration, notwithstanding the pendency before the Commission of a request for a hearing ,
from any person. The amendment may be issued and made immediately offective in advance of the holding and completion of any required hearing. The amendment will be processed in accordance with the procedures specified in 10 CFR 50.91.
- 6. Section 52.99 is revised to read as follows:
S 52.99 Inspection during construction.
After issuance of a combined license, the Commission shall ensure that the required inspections, tests, and analyses are performed and, prior to operation of the facility, shall find that the prescribed acceptance criteria are met. Holders of combined licenses shall comply with the provisions of 10 CFR 50.70 and 50.71. At appropriate intervals during construction, the NRC staff shall publish in the Federal Register notices of the successful completion of inspections, tests, and analyses.
, 19 l
S 52.101 (Removed)
- 7. Section 52.101 is removed.
- 8. Section 52.103 is revised to read as follows:
5 52.103 operation under a combined license.
(a) Not less than one hundred and eighty days before the date scheduled for initial loading of fuel into a plant by a licensee that has been issued a combined construction permit and operating license under subpart C of this part, the Commission shall publish in the Federal Register notice of intended operation. That notice shall provide that any person whose interest may be affected by operation of the plant, may within sixty days request the Commission to hold a hearing on whether the facility as constructed complies, or on completion will comply, with the acceptance criteria of the license.
(b) A request for hearing under paragraph (a) of this section shall show, prima facle, that --
(1) one or more of the acceptance critoria in the combined license have not been, or will not be met; and (2) The specific operational consequences of nonconformance that would be contrary to providing reasonable assurance of adequate protection of the public health and safety.
(c) After receiving a request for a hearing, the Commission expeditiously shall either deny or grant the request. If the request is granted, the Commission shall determine, after considering petitioners' prima facie showing and any answers 20 1
i i
thereto, whether during a period of . interim operation, there will i
be reasonable assurance of adequate protection of the public i health and safety. If the commission determines that there is such reasonable assurance, it shall allow operation during an interim period under the combined license.
(d) The commission, in its discretion, shall determine appropriate hearing procedures, whether informal or formal l adjudicatory, for any hearing under paragraph (a) of this section, and shall state its reasons therefor.
(a) The commission shall, to the maximum possible extent, render a decision on issues raised by the hearing request within one hundred and eighty days of the publication of the notice provided by paragraph (a) of this section or the anticipated date for initial loading of fuel into the reactor, whichever is later.
(f) A petition to modify the terms and conditions of the combined license will be processed as a request for action in accord with 10 CFR 2.206. The petitioner shall file the petition with the Secretary of the commission. Before the licensed activity allegedly affected by the petition (fuel loading, low power testing, etc.) commences, the commission shall determine whether any immediate action is required. If the petition is granted, than an appropriate order will be issued. Puel loading and operation under the combined license will not be affected by the granting of the petition unless the order is made immediately effective.
21 L
(g) Prior to operation of the facility, the commission shall find that the acceptance criteria in the combined license are met. If the combined license is for a modular design, each reactor module may require-a separate finding as construction proceeds. >
Th Dated at Rockville, Maryland this /le day of O ex 1992. ,
For the Nucleap Regulatory Commission,
( -
V SAMUEL J( CHILK t Secretary of try Commission.
0 22
___ . . . __ --_.