ML20135F473
| ML20135F473 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 12/06/1996 |
| From: | Hoyle J NRC OFFICE OF THE SECRETARY (SECY) |
| To: | NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| References | |
| CON-#496-18097 CLI-96-13, LBP-95-17, OLA-3, NUDOCS 9612130076 | |
| Download: ML20135F473 (29) | |
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UNITED STATES OF AMERICA ! G" r
NUCLEAR REGULATORY COMMISSION COMMISSIONERS: c6 DE -6 P 1 :19 1 Shirley Ann Jackson, Chairman Kenneth C. Rogers 0FFF ].,
j Greta J. Dicus 00Cr: ' 9 Nils J. Diaz Edward McGaffigan, Jr.
In the Matter of )
1 )
J THE CLEVELAND ELECTRIC )
. ILLUMINATING COMPANY ) Docket No. 50-440-OLA-3
)
(Perry Nuclear Power Plant, )
- Unit 1) )
) )
b i
CLI-96-13 MEMORANDUM AND ORDER l
I. Introduction l
In this decision we review the Atomic Safety and Licensing J Board's Memorandum and Order, LBP-95-17, 42 NRC 137 (1995). The i
order granted a motion for summary disposition submitted by intervenors the Ohio Citizens for Responsible Energy (OCRE) and 5
Ms. Susan L. Hiatt. In granting the motion, the Board concluded that any change to the Perry Nuclear Power Plant's withdrawal schedule for reactor vessel material specimens must be treated as a license amendment. Cleveland Electric Illuminating Company (the licensee) petitioned for review of the Licensing Board's decision. We granted review in CLI-96-4, 43 NRC 51 (1996). ,
Cleveland Electric and the Nuclear Regulatory Commission staff i (staff) urge the Commission to reverse LBP-95-17. The 9612130076 961206 PDR ADOCK 05000440 n .- )
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- intervenors support the decision. We reverse and vacate t
II. Background !
This proceeding stems from Cleveland Electric's request for :
a license amendment. The amendment, issued by the NRC staff on ,
I December 18, 1992, transferred the withdrawal schedule for reactor vessel material specimens from the Perry plant's technical specifications to the facility's updated safety analysis report (USAR).2 i
The Material Soecimen Withdrawal Schedule At issue in this proceeding is what is commonly referred to as either the material specimen or surveillance capsule withdrawal schedule. The withdrawal schedule is one component of 4
the NRC's program to monitor and assure the structural integrity of reactor pressure vessels. Long-term exposure to neutron radiation and elevated temperatures in a reactor vessel affects vessel materials. Over time, the ductility of ferritic materials l
decreases, thereby decreasing the vessel materials' " fracture toughness," or resistance to fracture.
Appendix H to 10 C.F.R. Part 50 sets forth a surveillance
, program to monitor the fracture toughness of beltline materials 1 Egg 58 Fed. Reg. 5438 (Jan. 21, 1993). The license amendment also revised the Perry plant's reactor vessel pressure / temperature limits, but the intervenors did not challenge this portion of the amendment.
3 in light-water reactor vessels. Appendix H directs licensees to attach a particular number of surveillance " capsules" to specified areas within the reactor vessel, typically near the i inside vessel wall at the beltline. Each capsule contains a number of material specimens that remain exposed to radiation during plant operation. Under the Appendix H surveillance program, licensees must periodically withdraw capsules from the reactor vessel. capsule removal permits the material specimens to be tested for changes in ductility and fracture toughness --
effects of the neutron irradiation and elevated temperatures in a given reactor pressure vessel.
How frequently a capsule must be removed for testing and evaluation is determined by a standard of the American Society for Testing and Materials (ASTM), which Appendix H incorporates by reference and directs licensees to apply. See 10 C.F.R. Part 50, Appendix H, S III.B.1, referencing ASTM E 185-82, " Standard Practice for Conducting Surveillance Tests for Light-Water Cooled Nuclear Power Reactor Vessels." The ASTM standard provides licensees with the criteria for determining both the minimum number of surveillance capsules that need to be installed within the reactor vessel at the start of the plant's life, and when in the plant's life -- measured in effective full-power years -- a capsule should be withdrawn for evaluation.
Cleveland Electric's request to remove the withdrawal schedule from the technical specifications was prompted by NRC Generic Letter 91-01. Issued by the NRC staff in January 1991, 1
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4 the letter advised licensees that the material specimen withdrawal schedule need not be retained in plant technical specifications. Similar generic letters encouraging licensees to remove other line-lweb provisions from plant technical specifications have been and continue to be issued as part of the
' staff's policy to improve standard technical specifications by pruning technical specifications of items not deemed "of controlling importance to safety." See " Final Policy Statement on Technical Specifications Improvements for Nuclear Power
- Reactors," 58 Fed. Reg. 39,132, 39,136 (July 22, 1993),
. as amended, 60 Fed. Reg. 36,953 (July 19, 1995).
Section 182a of the Atomic Energy Act (AEA) requires technical specifications to be incorporated in every license to
. operate a production or utilization facility. The AEA further requires the technical specifications to include information on the amount, kind, and source of special nuclear material, the place of use, and the specific characteristics of the facility.
42 U.S.C. S 2232. What other information should be included in technical specifications -- to assure public health and safety --
is left for the Commission to determine, and prescribe by rule or regulation.
The NRC rule outlining the required contents of technical specifications is 10 C.F.R. S 50.36, promulgated in 1968.2 Largely due to section 50.36's " lack of well-defined criteria,"
however, the number of items included in technical specifications 2 33 Fed. Reg. 18,610 (Dec. 17, 1968).
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5 mushroomed after the rule was issued, and essentially came to l include all " Commission requirements governing the operation of nuclear power reactors."3 Because technical specifications are part of an operating license, any change to the technical )
I specifications requires a license amendment. Consequently, as the number of items in standard technical specifications grew, so did the number of license amendment applications, as licensees sought to alter line-item provisions that had been inserted in plant technical specifications.
By the early 1980s, the NRC staff concluded that the burgeoning number of items commonly included in standard I
technical specifications was both diverting staff and licensee attention from the most significant safety requirements, and unnecessarily burdening agency and industry resources with a several-fold increase in license amendment applications. To i remedy this trend, the staff initiated a Technical Specifications Improvement Project.' The project resulted in a policy to limit technical specifications to those items deemed most important to safety.5 As part of the new policy to streamline and improve technical specifications, the NRC staff over the past several
' " Final Policy Statement on Technical Specifications Improvements for Nuclear Power Reactors," 58 Fed. Reg. 39,132, 39,133 (July 22, 1993).
' Idi 5
Id , 58 Fed. Reg. at 39135. See also 60 Fed. Reg. 36,953, 36,957-58 (1995).
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6 years has been identifying which items can be removed -- without safety consequences -- from the standard technical specifications. Items so identified can be transferred to the licensee's updated safety analysis report or some other licensee-controlled document. In late 1990, the staff concluded that the .
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- material specimen withdrawal schedule could be moved from the standard technical specifications to the licensee's updated safety analysis report. Generic Letter 91-01 encouraged this !
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- transfer.
s Responding to the generic letter, Cleveland Electric requested the challenged license amendment. The amendment j
- deleted the actual withdrawal schedule from the Perry technical !
I specifications. Instead of containing the actual schedule for material specimen removal, the technical specifications now provides as follows: "The reactor vessel material surveillance specimens shall be removed and examined to determine changes in reactor pressure vessel material properties as required by 10 C.F.R. 50, Appendix H."
The Intervenors' Araument Intervenors OCRE and Ms. Hiatt petitioned for a hearing on the Perry license amendment. OCRE describes itself as a non-profit corporation dedicated to research and advocacy on nuclear reactor safety. Several OCRE members reside within 15 miles of the Perry facility. Ms. Hiatt is an officer of OCRE, and resides approximately 13 miles from the plant. The intervenors' asserted
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interests in this proceeding include "the preservation of their
! lives, their physical health, their livelihoods, the value of 9
their property," and their legal right to participate meaningfully in Perry plant issues that could affect these interests.' In March 1992, the Licensing Board denied the intervenors' request for a hearing, ruling they lacked standing to intervene.7 The Commission reversed the ruling on standing,e and remanded the case to the Licensing Board, which ultimately admitted one contention.
The intervenors' sole contention raised one legal argument:
that removal of the withdrawal schedule from the plant technical specifications violates section 189a of the Atomic Energy Act, 42 U.S.C. S 2239(a). Section 189a requires the Commission to provide notice and an opportunity for a hearing to any member of i the public whose interest might be affected by a proceeding to I
grant, revoke, renew, or amend an operating license. The l
intervenors' basic claim is that section 189a entitles them to e notice of, and an opportunity for a hearing on, any change to the Perry material specimen withdrawal schedule. Any schedule change, they claim, would be a da facto license amendment.
Prior to this license amendment proceeding, the Perry plant withdrawal schedule was included in the technical specifications.
- Petition for Leave to Intervene and Request for a Hearing (Aug. 26, 1991) ("Intervenor s ' Petition") at 4.
LBP-92-4, 35 NRC 114 (1992).
s CLI-93-21, 38 NRC 87 (1993).
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4 Because technical specifications are an integral part of an l
operating license, changes to technical specifications require a
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license amendment. Accordingly, before the withdrawal schedule was removed from the Perry technical specifications, any change to the schedule would have required a license amendment. Now, after the amendment, the withdrawal schedule no longer is i
i included as a line-item in the license. The withdrawal schedule !
t has been transferred to the USAR, a licensee-controlled document P
that can be modified without a license amendment, so long as the modifications do not involve a change to the technical specifications or an unreviewed safety question. See 10 C.F.R.
S 50.59. Possible future changes to the Perry withdrawal schedule, therefore, will not necessarily require a license amendment. The intervenors claim that even though the withdrawal schedule has been removed from the technical specifications, any changes to the schedule would still represent de facto license amendments, whether the Commission chooses to label them as such l
or not.
In characterizing all possible withdrawal schedule changes as license amendments, the intervenors do not argue that it was improper to remove the schedule from the license. Indeed, they conceded before the Licensing Board that there is no legal requirement that the withdrawal schedule remain in the technical .
specifications. They stress, instead, that any future changes to the Perry plant withdrawal schedule will be dg facto license
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[ amendments because Appendix H $ II.B.3 requires prior NRC i approval for any revision to the withdrawal schedule.'
This staff " approval," argue the intervenors, constitutes a l material licensing action, requiring a formal license amendment. ;
- In the intervenors' view, "a licensee action for which NRC.
1 approval is required prior to implementation .. 13 a license i
u amendment, even if it is not explicitly designated as such.""
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1 Because prior agency approval for a schedule change was, and i
1 continues to be, required by regulation, the only effect of removing the withdrawal schedule from the technical i
5 specifications, claim the intervenors, was to exclude the public i
from schedule changes."
i In short, the intervenors claim that l
! junt action requiring prior NRC approval is a da facto license i
amendment, warranting section 189a hearing rights.
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[ The Licensina Board's Decision l
Cleveland Electric and the NRC staff argued two main points i
! before the Board. One, they claimed that the intervenors i i I
k I ' Appendix H to Part 50 was revised in January 1996, and Section II.B.3, an supersedes in full the former Appendix H.
i often-cited provision in this proceeding, is now found under'10 l C.F.R. Part 50, Appendix.H S III.B.3. The language of the rule remains the 3ame. Because the parties in this proceeding l
I i
e repeatedly refer to the older provision, we chose for clarity to do so as mell. For the convenience of readers, the 1996 Code of Federal Regdlations provides the text of both the new and the j superseded Appendix H.
4
" Intervenors' Brief.in Support of Commission Affirmation
]
of LBP-95-17 (May 29, 1996) ("Intervenors' Brief") at 2.
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" Intervenors' Petition at 6. l l
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' misinterpreted section II.B.3 of Appendix H, which in their view ,
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does not require prior staff approval for every withdrawal l
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schedule change. Two, they argued that even if prior staff
' l l- approval of all schedule changes is required, such changes will not always be material licensing actions, and therefore will not always require a license amendment.
In LBP-95-17, the Licensing Board concurred in full with the 4
- intervenors. Although the Board let stand the license amendment removing the withdrawal schedule from the technical specifications, the Board ordered the NRC to treat future proposed withdrawal schedule changes as license amendments, to bc l
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accompanied by notice and hearing rights under section 189a of the AEA. 42 NRC at 149. Because the intervenors did not challenge removal of the withdrawal schedule from the technical j
specifications, the Board did not address whether any law or J
regulation requires the schedule to be retained in the terms of the license. Instead, the Board focused upon "whether a change in the withdrawal schedule is a material license issuance decision." 141 at 142.
The Board first flatly rejected the staff's argument that section II.B.3 does not require prior staff approval for every change to a withdrawal schedule. Having found that all changes do require prior approval, the Board went on to conclude n
that such changes, a oriori, require license amendments. In the Board's view, the " linchpin" of the intervenors' argument was their claim that the Commission's regulations require prior
11 approval of any change to the withdrawal schedule. Idz at 143.
If the intervenors were correct in their interpretation of section II.B.3, concluded the Board, "then their summary disposition motion must be granted and the Applicants' cross-motion must be denied." 142 Without elaboration, the Board in effect agreed with the intervenors' claim that if prior approval is required for a change, that change is the equivalent of a license amendment. Egg idt at 148-49.
For the reasons detailed below, we first conclude, as the Board did, that the intervenors' interpretation of Appendix H is correct: section II.B.3 in Appendix H requires staff approval of withdrawal schedules, original or revised. But contrary to the Board's reasoning, we nevertheless find that not all changes to a material specimen withdrawal schedule -- even if some form of staff approval is involved -- are material licensing actions requiring a license amendment.
III. Analysis Anoendix H to Part 50. 4 II.B.3 We begin by looking at section II.B.3. Because the intervenors have equated need for prior staff approval with in lice.nse amendments, we first examine whether section II.B.3 Appendix H even requires licensees to seek prior staff approval for all withdrawal schedule changes. We find that it does.
The disputed section II.B.3 reads as follows:
A proposed withdrawal schedule must be submitted with a technical justification as specified in S 50.4.
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12 The proposed schedule must be approved prior to implementation.
The staff submits that, "(w]hile the regulation explicitly !
requires commission prior approval of a ' proposed schedule,' it
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nowhere addresses the question of whether Commission approval of !
proposed chanaes to an already approved schedule is required."tz According to the staff, the Licensing Board went "beyond the plain words of the regulation" to conclude that "a ' proposed schedule' includes not just a proposed schedule but also any proposed chanaes to an approved schedule, regardless of whether those changes are insignificant."" Unfortunately, the staff l does not provide the Commission with a clear and consistent f
explanation of what exactly are the "previously" or "already" approved schedules to which the staff repeatedly refers, and which, presumably, did require prior staff approval. '
The Licensing Board and the intervenors interpreted the staff's argument to be that section II.B.3 explicitly requires prior approval of a licensee's initial withdrawal schedule, but On not of all possible changes to an already approved schedule.
this view, any later revisions would only require prior staff approval if they do not conform to the ASTM standard for 12 NRC Staff's Brief in Support of Commission Reversal of LBP-95-17 ("Staf f Brief") ( Apr. 26, 1996) at 7.
" NRC Staff's Answer to Licensee's Petition for Commission Review (Nov. 30, 1995) at 5 n.5.
2' See also, e.a., NRC Staff Response to Intervenors' Motion for Summary Disposition (Mar. 7, 1994), attached Affidavit at 3 l (Appendix H "does not explicitly address the requirements for changes to a previously approved schedule").
13 withdrawal schedules, incorporated by reference in Appendix H.
Relying upon the staff's arguments, the licensee similarly stresses that Appendix H "does not specify whether it is only the initial schedule that must be approved or whether changes to that
[ initial) schedule must also receive prior approval."is Like the Licensing Board, we find that the plain language of 1
section II.B.3 requires licensees to submit any " proposed l schedule" to the staff. Appendix H makes no distinction between requirements for original and revised schedules. Nor can we infer any reason for such a distinction. First, the very nature of a withdrawal schedule is such that modifications may need to be made. If, for example, results from testing the first material specimens prove inconsistent with expectations, the withdrawal schedule may need to be revised. Appendix H thus provides for, and indeed may mandate, possible schedule l revisions. It stands to reason, then, that if there were 1
different requirements for implementing original and revised ]
schedules, Appendix H would make this clear. Secondly, where both initial and revised schedules must satisfy the same ASTM industry standard and, where prior approval of " initial" _
schedules is of interest at all, we cannot discern why there would be no interest in also checking, also " approving," revised schedules, to ensure that they too meet the required standard. ;
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i 25 Licensees' Brief On Review of Licensing Board Decision LBP-95-17 (" Licensee's Brief") (April 26, 1996) at 24.
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- We also reject the staff's c1cim that licensees need not submit a revised schedule for the staff's review as long as the
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- schedule conforms to.the ASTM standard. The plain language of i
section II.B.3 does not intimate any exceptions to the required 3
l-staff review of " proposed schedules." Such a significant t
- exception -- likely to encompass most schedule revisions --
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- i. surely would have-been noted conspicuously in the rule, or at 1
least somewhere in Appendix H. The staff relies upon Appendix i
H's " legislative history," but that history is inconclusive.
Indeed, the most recent regulatory history tends to suggest that all proposed schedules will receive staff approval."
In short, the language and history of the rule are unsupportive of the staff's interpretation. We also need not look far to find many instances when the staff itself has-stated that prior approval of all schedule changes is required. For example, the Federal Reaister notice for the very license amendment that brought about this proceeding states plainly that
" For instance, a provision in the proposed rule requiring that the Commission be given 30 days advance notice of a capsule withdrawal was dropped from the final rule after a commenter
' suggested it was unnecessary because $ II.B.3 already required withdrawal schedules to be submitted for approval. Egg Final Rule, " Fracture Toughness Requirements for Light-Water Nuclear Power Reactors," 48 Fed. Reg. 24,008 (1983). In addition, a reporting requirement that test results be submitted to the l Commission within 90 days of capsule withdrawal, also was dropped i I
from the final rule and changed to one year, "because capsule withdrawal schedules must be approved by the Director, Office of Nuclear Reactor Regulation, as provided in paragraph II.B.3 of Appendix H." Egg id., 48 Fed. Reg. at 24008, In short, references to-$ II.B.3 in the rule's Statement of Considerations add to the impression that the prior approval requirement is general and unqualified.
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' 15 "the relocation of the surveillance capsule withdrawal schedule from the TS to the USAR in accordance with GL 91-01, is a purely administrative change; NRC prior approval is still necessary for any change to the schedule itself.""
Looking again to staff statements about the Perry license amendment, the Safety Evaluation provides the following: "The movement of the specimen withdrawal table from the TS to the USAR is only an administrative change. The withdrawal schedule is not impacted and must receive NRC approval before it can be changed."te The Safety Evaluation further notes that licensees shall include in the USAR the "NRC-accroved revisions" to the withdrawal schedule." These statements do not allude to any category of withdrawal schedules exempt from staff review.
In addition, the Federal Recister notices of several other similar license amendments involving removal of the withdrawal schedule from technical specifications also expressed -- without qualifications -- the naed for prior staff approval of schedule changes. See, e.c., 59 Fed. Reg. 2859, 2867 (Jan. 19, 1994)(Re:
Waterford Steam Electric Station, Unit 3: " Updates to the schedule will still be required to be submitted to the NRC prior to implementation per Section II.B.3 of Appendix H to 10 C.F.R.
" 56 Fed. Reg. 33,961, 33,962 (July 24, 1991) (emphasis added).
le Letter from James Hall, NRC, Office of Nuclear Reactor Regulation, to Michael Lyster, Vice President, Cleveland Electric (Dec. 18, 1992), attached Safety Evaluation by NRR, at 6.
" Safety Evaluation at 4 (emphasis added).
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16 Part 50 .... The schedule will continue to receive NRC review and approval prior to implementation of updates to the schedule"); 56 Fed. Reg. 29,267 (June 26, 1991) (Re: Calvert Cliffs Nuclear Power Plant, Units 1 & 2: " changes to this schedule are controlled by the requirements of Appendix H ... which require NRC approval and are maintained in the Updated Safety Analysis Report").
Of particular note, Cleveland Electric's letter requesting the Perry license amendment explicitly relates the understanding that Appendix H, S II.B.3 " requires prior approval of ADY changes l
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to the subject schedule."20 More significantly, the letter l advises that a companion letter of the same date is being submitted to the NRC requesting approval -- pursuant to Appendix H -- of a revised material specimen withdrawal schedule.21 The !
technical justification provided for the proposed revised schedule was that it was " consistent with" the applicable ASTM standard for withdrawal schedules.22 Apparently, Cleveland Electric was not proposing a schedule that conflicted with the ASTM standard. But under the staff's interpretation of Appendix I
H, the licensee never would have needed to request approval for the revised schedule because that schedule conformed to the i required standard.
2o Letter from Michael Lyster, Centerior Energy, to NRC, Re: Technical Specification Change Request, Attachment 2 at 1 (March 15, 1991) (emphasis added) .
21 at 1.
Id 22 Letter from Michael Lyster, Centerior Energy, to NRC, Re: Approval Request, (Mar. 15, 1991) at 1.
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17 The staff's Safety Evaluation of the Perry license amendment 1
acknowledges that "[i)n a separate letter dated March 15, 1991, I the licensee requested staff approval of a revised surveillance i capsule withdrawal schedule, as required by 10 CFR Part 50, 1 J
Appendix H." 23 The staff goes on to " approve" thic revised J
l schedule, and directs Cleveland Electric to include the new I schedule in the next Perry USAR.2' Although the staff approved the new schedule at the same time that it granted the Perry license amendment, the license amendment did not involve revising i
- the withdrawal schedule. The license amendment notice never referred to a proposed revised schedule. Moreover, the Safety j
Evaluation explicitly declared that the Perry withdrawal schedule j Review, then, was "not impacted" by the license amendment.
appears to have been conducted just as the correspondence indicates -- pursuant to the requirement set forth in section ,
II.B.3.
Despite these many indications that the staff's prrctice has been to review schedule revisions, the staff argues that the Board erroneously rejected the staff's " historical interpretation The staff and application of the rule." Staff Brief at 8.
nevertheless concedes that contradictory statements have been i l i
23 Safety Evaluation by NRR at 1.
2' Id at 5.
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I 18 made and that the correct interpretation of the rule is " subject I
to question."2s In its brief before the Commission, the staff for the first time suggests what the Commission believes is the correct j t
interpretation of, and reasoning behind, section II.B.3. The staff notes that if Appendix H incorporates the self-implementing i ASTM standard, then any withdrawal schedule that conforms to the l ASTM standard is "iggg facto already approved for j implementation." Staff Brief at 12. Why then, asks the staff, would the Commission still require approval of all schedules? In response, the staff suggests an alternative to its earlier reading of the rule: " Commission approval of all schedule changes is required -- but only to verify that the changes are consistent l
with the ASTM standard." Id2 The Commission agrees with this alternative reading of the i rule. We believe that the rule, correctly understood, provides the staff with the opportunity to verify in advance that a proposed schedule -- original or revised -- indeed conforms to )
1 the applicable ASTM standard for material specimen withdrawal schedules. The staff in fact has stated that it " reviewed l proposed schedules and modifications to determine if they were consistent with the withdrawal schedules set forth" in the l
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25 NRC Staff's Answer to Licensee's Petition for Commission Review (Nov. 30, 1995) at 6 n.9. !
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applicable ASTM standard.2' In short, section II.B.3 as promulgated in 1983 requires an approval or check by the staff to ensure that the proper ASTM standard is used correctly. The plain language of the rule and, even indications of past staff l 1
practice, support this conclusion. ,
The staff is certainly free to change rule interpretations l if appropriate. But the staff may not adopt an interpretation i
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unsupported by the languege anc history of the rule. The various '
interpretive glosses proposed by the staff -- about initial versus revised schedules and other distinctions not found in the rule -- do not explain away section II.B.3's unqualified prior ;
l approval requirement. We cannot find in the current rule's text or its history any allusion to a separate category of withdrawal schedules excluded from the prior approval requirement. We therefore agree with the Licensing Board that the staff's !
l currently-espoused interpretation of section II.B.3 cannot be ;
I squared with the plain language of the rule.27 1 2' NRC Staff Response to Intervenors' Motion for Summary l Disposition (Mar. 7, 1994), attached Affidavit at 4.
See also j
NRC Staff's Reply Brief (June 18, 1996) at 6 n.8 ("To be sure, ]
the Staff might review such changes in advance, to verify that l they are in fact consistent with the ASTM standards incorporated by reference in Appendix H"). l J
27 The staff informed the Licensing Board that it was considering amending Appendix H to specify "the circumstances l under which the changes to a previously approved withdrawal 4 schedule can be made." NRC Staff1994),
Response to Intervenors' Motion l for Summary Disposition (Mar. 7, attached Affidavit at 9. l The staff has yet to propose an amendment to the rule.
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20 Licensina Authority and Accendix H Acorovals As amended, section 189a of the Atomic Energy Act requires the Commission to afford interested parties notice of, and an opportunity for a hearing on, the " granting, suspending, 42 revoking, or amending" of any license or construction permit.
U.S.C. 5 2239(a). Having found that section II.B.3 requires licensees to submit all proposed schedules for the staff's approval, the question before us then becomes: are the staff approvals referenced in Appendix H dg facto license amendments, as the intervenors claim? Contrary to the assumption made by the Licensing Board, we do not find that all such approvals are da facto license amendments.
We begin by looking at the legislative history of the AEA.
That history, unfortunately, does not clarify what constitutes a license amendment within the meaning of section 189a. But it does make clear that Congress wished to provide hearing rights for only "certain classes of agency action," not all.2s gg initially proposed, the AEA did not contain any hearing rights provision.2' A later draft proposed a hearing opportunity to l
2e San Luis Obisoo Mothers for Peace v. NRC, 751 F.2d 1287, 1313 (D.C. Cir. 1984)(ELQ)(referencing remarks of Sen.
Hickenlooper, 100 Cong. Rec. 10,171 (1954), reh'a en923banc on (1986).
j other arounds, 789 F.2d 26, cert. denied, 479 U.S.
2' Egg H.R. 8862, 83d Cong., 2d Sess. S 189 (1954),
reorinted in 1 Atomic Energy Comm'n Legislative History of the Atomic Energy Act of 1954 (" Legislative History") at 105, 167-68 (1955).
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- parties " materially interested in any ' agency action.'"80 But this provision was found "too broad, broader than it was intended to be,"32 and led to section 189a's very specific list of Commission actions warranting hearing rights. If a form of I Commission action does not fall within the limited categories enumerated in section 189a, the Commission need not grant a I hearing .32 In evaluating whether challenged NRC authorizations effected license amendments within the meaning of section 189a, courts repeatedly have considered the same key factors: did the challenged approval grant the licensee any " greater operating authority,"33 or otherwise " alter the original terms of a license"? 84 If so, haaring rights likely were l'iplicated. For example, in Citizens Awareness Network. Inc. v. NRC, 59 F.3d 284, 295 (1st Cir. 1995) (CAN) , the decision upon which the intervenors most rely, the court found that the challenged NRC approval
" undeniably sucolementred1" the original license. The agency had permitted the licensee to dismantle major structural components, an activity that the court found unauthorized by the original so H.R. 9757, 83d Cong., 2d Sess. S 181 (1954), reorinted in 1 Legislative History at 541, 625.
31 100 Cong. Rec. 10,171 (1954)(Sen. Pastore's remark),
reorinted in 3 Legislative History at 3175.
32 SLQ, 751 F.2d at 1315.
83 In re Three Mile Island Alert, 771 F.2d 720, 729 (3d Cir.
1985), cert. denied, 475 U.S. 1082 (1986).
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ELQ, 751 F.2d at 1314.
22 license and agency rules. Similarly, in another case, where the i
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NRC staff extended the duration of a low power license, a ]
reviewing court viewed the staff approval to be a license {
l amendment changing a term of the license, and therefore triggering an opportunity for a hearing under section 189a.35 The intervenors correctly claim that "[ijt is the determination that an action is a license amendment, not the-significance of the amendment, that triggers Section 189a hearing rights." Intervenors' Brief at 7. They also accurately have distilled the existing case law on NRC license amendments to conclude that any agency action permitting a licensee to go beyond " existing license authority" is a license amendment within the meaning of the Atomic Energy Act. Idx But nowhere do we find support for the intervenors' sweeping premise that any " action for which NRC approval is required prior to implementation already is a license amendment." 142 at 2. This generalization suggests -- erroneously -- that any time the NRC staff grants prior approval, the staff is permitting actions that will exceed existing licensing authority.
Applicable case law includes several examples of NRC See, approvals that did not trigger section 189a hearing rights.
e.g., Massachusetts. v. NRC, 578 F.2d 1516 (1st Cir. 1989) (NRC authorization of plant reotart, which followed staff's review of 47 ordered modifications, was not a license amendment);
In re Three Mile Island Alert. Inc., 771 F.2d 720, 729-30 55 ELQ, 751 F.2d at 1314-15.
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- 23 '
2
} (3d Cir.1985)(decision lifting license sospension and i l' authorizing restart under stipulated conditions was not a license I amendment), cert. denied, 475 U.S. 1082 (1986); EL&, 751 F.2d at j i
1314 (lifting a license suspension "does nothing to alter the ;
i i
original terms of a license" and is not a license amendment).
l l
Where the NRC approval does not permit the licensee to operate i 1
i "in any greater capacity" than originally prescribed and all !
f j relevant safety regulations and license terms remain applicable, i Sag Kellev v. j l
the NRC approval does not " amend" the license. i Ct.
4 l
Selin, 42 F.3d 1501, 1515 (6th Cir.), cert. denied, 115 S.
i Only i 2611 (1995); Massachusetts. v. NRC, 878 F.2d at 1521-22. ;
i f those actions falling "beyond the ambit of the prescriptive '
! authority granted under the license" necessitate a license amendment. C&H, 59 F.3d at 295. ,
Here, any changes to the material specimen withdrawal ,
schedule that conform to the ASTM standard referenced in Appendix l
H will not alter the Perry license, and will not permit the ,
licensee to operate in any greater capacity than the original license prescribes. To so conclude, we look to the actual terms of the Perry operating licence. There we find that the technical specifications direct Cleveland Electric to conduct all testing and surveillance of material specimens according to Appendix H.
Appendix H, in turn, requires all withdrawal schedules to meet an applicable ASTM standard.
This means in effect that the Perry license specifies an NRC-approved methodology -- the ASTM standard -- to be used in
24 developing either an initial or revised schedule. The ASTM l standard establishes specific technical criteria for determining
~
where in the reactor vessel to place surveillance capsules, how ;
l many capsules should be used, and how often capsules should be ;
i 4
removed for testing. By effectively incorporating the ASTM l standard, the Perry license provides delineated parameters for !
)
Cleveland Electric to use in calculating an appropriate withdrawal schedule.
As long as its withdrawal schedule meets the applicable ASTM standard, Cleveland Electric is not exceeding operating authority already granted in its Perry operating license. The ASTM l standard anticipates that during the course of a nuclear power plant's life the withdrawal schedule may need to be revised; the standard allows and provides for such changes. The terms of the l Perry license thus already provide for -- already authorize --
some possible schedule changes. Any revism1 schedule that i
l conforms to the ASTM standard can be said to be " encompassed within delineated categories of authorized conduct." CAH, 59 F.3d at 294. l The Perry operating license no longer contains the actual l current material specimen withdrawal schedule. A mere adjustment in the schedule, tnen, does not necessarily alter or violate the
" terms of the license," which require only that the licensee meet 50, Appendix H, no more and no less. It is true that 10 C.F.R.
before the withdrawal schedule was removed from the Perry technical specifications, any change to the schedule would have
l 25 I required a license amendment. But there is no statutory or i l
regulatory requirement that every operational detail listed in the USAR be subject to a technical specification.8' Moreover, the intervennrs explicitly did not contest the transfer of the schedule to the Perry USAR.
That the staff may wish to verify in advance that a proposed revision conforms to the required technical standard does not make staff approval a license amendment. By merely ensuring that required technical standards are met, the staff's approval does not alter the terms of the license, and does not grant the licensee greater operating authority. Such a review indeed enforces license requirements. As an enforcement policy matter, the staff may wish to police some licensee-initiated changes before they go into effect. To insist -- as the intervenors do -- that the NRC staff may never require prior approval for any change or activity without effecting some sort of major licensing action, would frustrate the agency's ability to monitor licensees and enforce regulations.37 As we already have noted, not every 2' Sgg Portland General Electric. Co. (Trojan Nuclear Plant), ALAB-531, 9 NRC 263, 273 (1979).
"[M) embers of the public cannot be allowed to litigate before the Commission any and all issues that occur to them Bellotti v. NRC, without demolishing the regulatory process."
725 F.2d 1380, 1382 (D.C. Cir. 1983). See also American Cylinder j Mfrs. Comm. v. Deoartment of Transo. (American Cylinder), 578 F.2d 24, 27-28 (2d Cir. 1978)(Department of Transportation
" approvals," certifying whether cylinder manufacturers met safety 1 spec cations, " reflect merely a method for policing (lawfully adopt._, regulations"). The Administrative Procedure Act's broad definition of " license" under 5 U.S.C. SS 551(8),(9), does not j encompass reviews that serve merely to confirm compliance with (continued...) ;
l
i -
l 26 change that occurs at a nuclear power plant, even if significant, i represents a license amendment. See, e.a., ELQ, 751 F.2d at i
i 1314. Again, the key consideration should be: did the agency I
action " supplement" the existing operating authority prescribed 1 l
4 in the license? Egg CAH, 59 F.3d at 295; see also P & R Temmer 1
i v. FCC, 743 F.2d 918, 928 (D.C. Cir.1984) (because FCC "merely J required the broadcaster to operate within the terms of its )
5 authorization, its actions could not be regarded as a license
- j modification").
The intervenors state that they merely seek "to participate i in the regulatory process."3s They have not been denied that opportunity. Appendix H was promulgated under appropriate notice d and comment rulemaking procedures. The intervenors had the 4
i opportunity to raise concerns about the adequacy and j appropriateness of the ASTM standard, and about any other item in Appendix H. In addition, line-items cannot be removed from.the l
technical specifications without a license amendment, which l offers another opportunity for public participation. If the intervenors believed that the nature and significance of the 4
material specimen withdrawal schedule was such that it needed to 4
i remain in the Perry technical specifications -- as a specific term of the Perry license -- the intervenors could have raised j l
'7(... continued) Egg American Cylinder, 578 F.2d existing license requirements. i at 27.
38 Intervenors' Answer to NRC Staff Response to Intervenors' ;
i Motion for Summary Disposition and Licensees' Cross Motion for Summary Disposition (Apr. 5, 1994) at 5. l 1
27 L that argument in this proceeding. They instead concurred with .
the NRC staff that there is no statutory or regulatory requirement that the withdrawal schedule remain in the Perry license.
There may be other opportunities to challenge changes in the j withdrawal schedule. As the NRC staff states in its brief, j l
"where a proposed change to a withdrawal schedule does not conform" to the required ASTM standard, " prior Commission approval and a license amendment,8' with its attendant notice and opportunity for hearing, [would) be required." Staff Brief at 20.'8 In addition, the intervenors may have the opportunity to raise enforcement concerns about the Perry withdrawal schedule through the 10 C.F.R. S 2.206 petition process. 1 As a final matter, we note that the staff approval Appendix H calls for is not the type of determination that lends itself readily to an adjudicatory hearing. Under Appendix H, the staff evaluates a proposed withdrawal schedule in terms of objective, technical, pre-established criteria. Such assessments fall well s' The Commission notes that a change to the withdrawal schedule that does not conform to the ASTM 7tandard referenced in Appendix H presumably would conflict with the Perry technical specification requirement that the reactor vessel material a
as surveillance specimens shall be removed and examined ...
required by 10 C.F.R. 50, Appendix H." Such a change to the FSAR that conflicts with the technical specifications would require a license amendment pursuant to 10 C.F.R. S 50.59(c) (2) , regardless of whether an unreviewed safety question is involved.
'O See also, Staff Affidavit at 8, attached to NRC Staff Response to Intervenors' Motion for Summary Disposition (" Staff I Response") (Mar. 7, 1994); NRC Staff's Reply Brief at 3-4; Staff Brief at 16, 17 n.28; Staff Response at 27, 28-29.
m_ _
I 4
28 within the NFC staff's technical expertise and its regulatory oversight role. See, e.a., Union of Concerned Scientists v. NRC, 735 F.2d 1437, 1451 (D.C. Cir. 1984) (assessing results of licensee's preoperational testing, to assure results meet objective " acceptance criteria," " falls squarely within the NRC i
staff's technical expertise"), cert. denied, 469 U.S. 1132 (1985). Confirming compliance with a self-implementing, detailed, industry standard does not call into play the various common reasons for requiring an adjudicatory hearing under Subpart G of 10 C.F.R. Part 2, such as the need to weigh various I .
parties' observations or the utility of cross-examination.
IV. Conclusion and order For the reasons stated in this decision, the Commission hereby reverses and vacates the Atomic Safety and Licensing Board order 'LBP-95-17. i It is so p g ED.
For the Commission f 0,p
{h by****#+
~
h4L ffohn C. H6yle Secr6tary of the Commission l
i Dated at Rockville, Maryland, this d day of December, 1996.
I
UNITED STATES OF AMERICA l '
NUCLEAR REGULATORY COMMISSION i.
i i
In the Matter of ,
THE CLEVELAND ELECTRIC ILLUMINATING Docket No.(s) 50-440-OLA-3 -
2 (Perry Nuclear Power Plant, Unit 1) i l
CERTIFICATE OF SERVICE 1 ,
I hereby certify that copies of the foregoing CLI-96-13 DATED 12/6/96 l
' have been served upon the following persons by U.S. mail, first class, except 4
as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.
Administrative Judge Office of Commission Appellate Thomas M. Moore, Chairman Adjudication Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Mail Stop - T-3 F23 Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 I Administrative Judge Administrative Judge Richard F. Cole Charles N. Kelber
! Atomic Safety and Licensing Board Atomic Safety and Licensing Board Mail Stop - T-3 F23 Mail Stop - T-3 F23
- U.S. Nuclear Regulatory Commission i U.S. Nuclear Pegulatory Commission Washington, DC 20555 Washington, DC 20555 j Colleen P. Woodhead, Esq. Jay E. Silberg, Esq. i' Office of the General Counsel Shaw, Pittman, Potts & Trowbridge Mail Stop 15 B18 2300 N Street, N.W. i U.S. Nuclear Regulatory Commission Washington, DC 20037 Washington, DC 20555 Susan L. Hiatt Petitioner Pro Se and Ohio Citizens for Responsible Energy 8275 Munson Road Mentor, OH 44060 Dated at Rockville, Md. this <
6 day of December 1996 5 ,
/s. ~: 7, t c. s . , -
DTfice of the secrstary of the Commission I !