ML20138P962
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May 31, 1984 FOR AFFIRMATION THURSDAY, MAY 31 e
SECY-84-206/206A - SHOREHAM - APPEAL BOARD CERTIFICATION IN ALAB-769 The Commission is being asked to approve a proposed order that provides guidance to the Shoreham Atomic Safety and Licensing Appeal Board in response to two issues that the Board had certified to the Commission.
The ASLAP had certified I
to the Commission two issues regarding (1) the relative scope of the terms "important to safety" and " safety related" for the purpose of evaluating the acceptability of quality assurance programs established under 10 CFR Part 50 and (2) the conditions under which the National Environmental Policy Act (NEPA) would require the Commission to prepare a separate environmental impact statement for low-power operation.
ALAB-769, 19 NRC (1984).
The proposed order, with regard to issue 1 above, notes the Commission will initiate a rulemaking proceeding on the matter and provides interim guidan'ce.
With regard to'the second item, the proposed order finds that NEPA does not require the Commission to prepare an Environmental Impact Statement (EIS) or any other form of environmental evaluation on a proposal to issue a low-power license for the Shoreham facility.
Chairman Palladino and Commissioners Roberts and Bernthal have approved the proposed order as modified in the attachment.
Commissioner Asselstine has approved in part and disapproved in part (he disapproved 'that portion of the decision that responds to the NEPA issue).
Chairman Palladino would have preferred option 2 of SECY-84-206A (with modifications).
Commissioner Gilinsky has not yet voted, but has indicated he will be prepared to do so at the af firmation session.
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Commissioner Asselstine has indicated that he will have separate views.
A copy of the order, as modified, is attached.
This item is being added to the affirmation session and will require a vote to hold on less than one week's notico.
Attachment:
As Stated a
Samuel J
, Secretary cc:
Commissioners OGC PE 217 hydll4jj{3851017 OILINSK85-437 PDR
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l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION r
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1-COMMISSIONERS:
Nunzio J. Palladino, Chaiman t
Victor Gilinsky i
Thomas M. Roberts James K. Asselstind 1
Frederick M. Bernthal i
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In the Matter of LONG ISLAND LIGHTING COMPANY 3
Docket No. 50-322 OL (Shoreham Nuclear Power Station, Unit 1)
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1 MEMORANDUM AND ORDER 3
a The Atomic Safety and Licensing Appeal Board for this proceed-l
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ing has certified two issues to the Comission:
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I.
The relative scope of the terms "important to safety" and
" safety-related" for the purposes of evaluating the acceptability i
of quality assurance programs established under 10 C.F.R. Part 50; l
and 1
i II.
The conditions under which the National Environmental l
Policy Act (NEPA) would require the Comission to prepare a separate environmental impact statement for low-power operation.
ALAB-769, 19 NRC (1984).
These questions raise significant issues of law and policy.
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However, for the reasons discussed below, the Comission declines to reach any final decision on the first issue finding that it would be more suitably addressed by rulemaking and need not be finally resolved for the purposes of this proceeding.
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Because the NEPA issue has been briefed and argued below, the i
j Comission finds no need to request yet another round of briefs or argument.
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The Appeal Board certified the following questions regarding the
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Comission regulations on quality assurance:
l 1.
Are the terms "important to safety" and " safety-related" to be deemed synonymous for the purpose of establishing an accept-able quality assurance program in accordance with GDC 1 of Appen-
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dix A and Appendix B to 10 C.F.R. Part 50?
4 2.
How should the outcome of Question 1 be applied to the i
operating license application proceeding before us?
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The material already in the record of this proceeding shows that j
the issue presented by Question 1 requires further consideration in a forum broad enough to encompass the far-reaching ramifications of any 4
l decision on this issue. As the Appeal Board found, the history of the i
j use of the tems "important to safety" and " safety-related" is tortuous i
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and somewhat inconsistent. A comprehensive analysis of this history 4
will be mors accurate if it has the benefit of the institutional j
memories of as many individuals as possible.
The application of such an I
analysis could result in a decision having significant consequences for i
the NRC's regulatory program.
This potential for significant decision j
warrants broad public participation.
Accordingly, the Comission will J
initiate a rulemaking proceeding on this issue.
In the interim, the Boards are to continue to proceed on a case-i by-case basis in accordance with current precedent.
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Edison Comoany (Three Mile Island Nuclear Station, Unit 1), ALAB-7E9,17 NRC814(1983).
The Commission understands current precedent to hold that the term "important to safety" applies to a larger class of equipment than the term " safety-related." However, this does not mean that there is a pre-defined class of equipment at every plant whose functions have been determined by rule to be "important to safety" although the equipment is not " safety-related." Rather, whether any piece of equipment has a function "important to safety" is to be determined on the basis of a particularized showing of clearly identified safety concerns for the specific equipment, and the requirements of General Design Crit.erion 1 (GDC 1) must be tailored to the identified safety concerns.
I wever, the Coninission recognizes that its regulations and, past practice on 6 matter have not been entirely clear, a d4elieves that fairness requires som exibility in the use o' e interim interpretation., If an applica. can sh hat it had a specific understanding with the staff th the
...s " safety-related" and "important to safety" to be treated meusforpurposesof; k.
review of its ication, then there should be no bas for further consider elon of whether. equipment which is not " safety-relate
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---+,md i un " impor tenthfety "
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l II.
The Appeal Board certified the following question regarding the Co:anission's compliance with t! EPA:
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Is some form of environmental evaluation under NEPA required as a this proceeding if such issuance is otherwise warrante I
For the reasons discussed below, the Coninission finds that NEPA does not require the Comission to prepare an Environmental Impact Statement (EIS) or any other form of environmental evaluation on a proposal to issue a low-power license for the Shoreham facility.
NEPA requires the NRC to prepare an environmental impact statemen for every proposed major Federal action which would significantly affec the quality of the human environment.
42 U.S.C. i 4332(2)(C).
The Comission's regulations implementing NEPA do not explicitly require preparation of an EIS for a proposal to issue a low-pcwer operating i
license.
i The Comission's regulations also recognize that some proposed Federal actions either may not be major or may not have significant impacts on the human environment.
For such other 3
proposals, the Comission determines on a case-by-case basis whether t prepare an EIS or some other appropriate environmental documentation, i.e., either an environmental impact appraisal and negative declaration or no statement at L11, 10 C.F.R. 51.25.
Part 51 does not explicitly address a proposal to issue a license to operate a power reactor at less than full power or at less than the design capacity.
E The Comission has determined that in the usual case
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I not require any separate environmental analysis of the proposal to issue i
a low-power operating license.
Pacific Gas and Electric Comeany (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAS-728,17 NRC 777,
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793-795 (1983), aff'd, CLI-83-32, 18 NRC 1309 (1983).
This is because the low-power license is simply a small component of or intermediate step to the full-power license and the environmental evaluation for low-power operation is subsumed within the environmental impact state-ment for full-power operation.
Low-power operation presents no environmental impacts different in kind from those considered in an EIS for full-power.
Any environmental impacts of low-power operation are a i
small subset of the set of impacts from full-power operation and, thus, i
are intrinsically considered in the full-power EIS.
It is well-established NEpA law that separate environmental statements are not required for such intermediate, implementing steps where an EIS.has been prepared for the entire proposed action.
Environmental Defense Fund, Inc. v. Andrus, 619 F.2d 1368, l377 (and cases cited therein) (1980).
Low-power operation is also not an alternative to full-power operation. Accordingly, low-power operation is not a reasonably fore-seeable alternative requiring separate environmental analysis on this basis.
Suffolk County (County) contends that the proposed low-power operating license for Shoreham presents an unusual case because it believes that an off-site emergency plan cannot be developed for this plant. This circumstance, in the County's view, makes low-power opera-tion without subsequent full-power operation a reasonably foreseeable alternative for the purposes of NEpA.
Accordingly, the County believes that a separate EIS or environmental evaluation is necessary for the proposed low-power license for Shoreham.
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Suffolk County's position is based on its speculation on the outcome of the adjudication of off-site emergency planning issues. The appropriateness of such speculation in this proceeding has already been addressed by the Comission in response to an earlier certified questio by the Licensing Board.
In LBP-83-21, 17 NRC 559 (1983), the Licensing Board suggested that a low-power license should not be issued where there is no reasonable assurance that a full-power license will ever be issued.
The Comission rejected this suggestion.
The Comission found that 10 C.F.R. 50.47(d) established unqualified authorization to issue a low-power license without the need for a predictive finding of reason-able assurance that a full-power license will eventually issue.
CLI-83-17, 17 NRC 1032, 1034 (1983).' Accordingly, the Comission declin to speculate on whether off-site emergency planning issues would be resolved satisfactorily for the purposes of a full-power license.
The Comission's earlier decision did not explicitly address Suffolk County's NEPA argument, liowever, that decision does implicitly i
suggest that uncertainty about the ultimate disposition of contested off-site emergency planning issues is too speculative to be cognizable as a changed circumstance for the purposes of finding that a supplemen tary environmental evaluation is required by NEPA.
Uncertainty over offsite emergency planning is not a changed circumstance.In any contested full-power proceeding there is uncertainty over the outccme of I
full-power licensing issues.
Controversy over offsite planning is not some new, recent development in this case or, for that matter, A
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7 distinguishable from controversy over other contested full-power issues.
Accordingly, the Comission finds that the pendency of a contested issue related to full-power operation may not be considered as changed circumstances for the purposes of NEPA.
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For these reasons, the Comission finds that where an EIS for full-power operation of a nuclear power plant has been prepared and adjudicated, the pendency of an adjudication on the emergency planning issue material to full-power operation does not constitute a basis for an additional NEPA obligation to prepare a separate environmental evaluation of a proposal to issue a low-power operating license to that plant. Therefore, the Comission finds that NEPA does not require a separate environmental evaluation or separate EIS for the proposed low-power operation of Shoreham.
_v' It is so ORDERED,
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For the Comission 5AMUEL J. CHILK Secretary of the Comission Dated at Washington, DC, this day of May,1984.
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