ML20151B441
| ML20151B441 | |
| Person / Time | |
|---|---|
| Site: | 05000000 |
| Issue date: | 01/08/1981 |
| From: | Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20150F521 | List:
|
| References | |
| FRN-45FR20491, RULE-PR-2, RULE-PR-50, TASK-PINV, TASK-SE AA51-2-203, AA61-2-203, SECY-51-12, SECY-81-012, SECY-81-12, NUDOCS 8101280280 | |
| Download: ML20151B441 (7) | |
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POLICY ISSUE (Notation Vote) i For:
The Commission From:
Leonard Bickwit, General Counsel Howard K. Shapar, Executive Legal Director
Subject:
The Sholly Decision -- Legislative Options Discussion:
In SECY A-80-183A we provided the Commission a memorandum on the impact of the Sholly deci-sion and possible ways of dealing with it, including NRC "self-help" actions, Supreme Court review and corrective legislation.
The scif-help actions are underway 1/ and the Commis-
'sion has approved seeking SupreEe Court review.
This memorandum, at the request of Co=missioner Bradford's office, will identify various legis-m lative options.
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b One set of legislative options consists of the ones set out in SECY A.80-183A.
'Ihat proposal suggested three changes in Section 189 of the i
Atomic Energy Act.
One, to overturn the Sholly i
holding that a request for a hearing stays the l
effectiveness of a license amendment which L
involves no significant hazards consideration.
l A second, to confirm that the Commission is entitled to issue an i=nediately effective license amendment or order when the public health and safety or common defense and security so requires.
A third, to overturn the Sholly holding that approval to undertake previously 1/
One additional self-help action that might be considered is to revise the definition of unreviewed safety question in 10 CFR 550.59 so that the licensee has greater scope for independent action without prior NRC approval.
As the Sholly court reads Congress ' intent it is the grant of "significant" new authority that requires a license amend-ment.
See slip op. p. 23.
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Papers on &
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sholly Decision were issued as SECY-A-80-183/A/B
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The Commission 2
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conditioned or restricted authority is itself a i
license amendment, at least where the original license or pertinent license authority has been revoked.
s Three variants on these options are straight-forward, namely dropping one, two, or all of the suggested changes.
The variant of dropping all of the suggested changes and of not pursuing any corrective legislation is not one that we favor.
Ue think the Sholly decision was erroneous and threatens to seriously burden the Commission's regulation of nuclear power by inviting hearing reauests on minor matters and delaying the l
effectiveness of license amendments necessary.
for power plant operation at full rated capacity.
The Commission's motion for a stay of mandate filed with the D.C. Circuit noted that the Sholly decision had placed at risk over the next few months some twenty power plants which would either have to shut down or operate at reduced power if not accorded the authority sought under license amendment requests which the staff
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expected to approve based on a no significant i/
hazards consideration finding.
This is likely m
to be a recurring situation since most licenses require amendment to reflect the physical behavior of the fresh fuel placed in the reactor core when the power plant refuels.
A legislative proposal to overturn the Sholly holding that a request for a hearing stays the effectiveness of a license amendment which involves no significant hazards consideration is, we think, justified.
The fact that the Commission intends to pursue seeking Supreme Court review of the decision does not detract from the case for legislation, since the prospect for Supreme Court review is unclear, a Supreme Court decision even if favorable is at least a year away, and the legislative route offers the prospect of more timely action.
The second change suggested in SECY A-80-183A, is to confirm the Commission's power to take immediately effective action either by order or by license amendment.
It also arguably
/3 expands the Conmission's powers to take immedi-()
ately effective action beyond the purely emer-gency situations sanctioned by the Administrative
The Commission 3
ss Procedure Act.
5 U.S.C. 558(c).
Ue think the better view is that the Sholly decision does not implicate those two purposes.
However, there is language in the Shelly decision which could be interpreted as requiring a hearing, on request, prior to the Commission s exercise of its power to take immediately effective actions. 2/
1hile we think there is only a very small rise that the Sho11y opinion would be stretched that far, the suggested change would assure that the Commission's l emergency powers are not impaired by the decision.
The third change suggested in 'SECY-A-80-183A, namely to make clear that approval to undertake previously conditioned or restricted authority is not a license amendment, is a response to the Sholly ruling that the Commission's approval of purging the TMI-2 containment was itself a license amendeent even though not characterized by the Cc==ission as such.
Like the first two suggested changes it would be appropriate for inclusion in a legislative proposal tailored 7x (2) solely to the Sholly decision.
Powever, this ruling of the Sholly case should not prove as x
onerous to the Commission as the no significant hazards ruling, and hence the case for legisla-tive correction is somewhat weaker.
It should not prove onerous for two reasons.
First, viewed narrowly, the court's ruling is applicable only to a situation where the relevant authority under a license has been revoked, as the D.C.
Circuit mistakenly thought was the case with regard to the TPI-2 license.
On this reading of the decision there would be exceedingly few occasions where the court's ruling would be applicable and none where it would have any impact, since even prior to Sholly the granting of significant authority where none existed 2/
The court stated that any significant change in license authority whether it involves the grant, suspension, revoca-tion, or amendment of a license, is a license amendment for which a prior hearing on request must be held.
Slip op. p.
23.
Since the court included license suspension and revoca-l cs tion in its catalog of actions requiring prior hearing, the
( s) argument that emergency action must await a prior hearing, 1
thcugh marginal, is not wholly without support in the court's decision.
As noted in text we think the better view of the court's decision is that the Commission's emergency powers are not affected by it.
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The Cocmission previously would have required a license amend-Second,g in the Commission's motion ment.
that we do to stay mandate.we advised the court intend to follow its ruling on this aspect of not that the case unless we are advised by the court Ue took this position because we viewed we must.
the court's ruling as based on a misapprehension to revoke only those of the Commission s intent aspects of the original TMI-2 license governing power operation, not the authority for effluent Since the question turned on the-not Congress' intent, we took discharges.
Commission's intent, the position that we were free to depart from the court's ruling once the Commission again made its intent in this regard clear.
Thus, unless the court rejects our position, the court's ruling on this aspect of the case should have no adverse impact on the TMI-2 cleanup.
The basis for legislative correction hinges on the possibility that the court's ruling is given a is broad reading rather than narrow reading; it A broad reading would take susceptible to either.
the court's decision to mean that whenever the r~'s Commission found that a license condition has been
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satisfied, that finding triggered new authority was a license amendment.
and, if significant, Given that reading, the Cocmission would be severely hampered in imposing flexible license conditions or orders, such as requiring the licensee as a condition of operation to effect certain changes to the satisfaction of the Director, URR, or to the satisfaction of the Co= mission by a particular Under the broad reading of the court's date.
decision the finding of " satisfaction" would be subject to an considered a license amendeent adjudicatory hearing before it could be effected. 3/
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There is a plausible prospect then, that under this aspect of the court's ruling, an adjudicatory hearing would be a prerequisite to keeping a power plant in operation or bringing up a licensee from a shutdown condition where the condition for or the shutdown order, was occasioned operation, by an immediately effective order requiring the e.o take corrective action to the Commis-licensee sion's satisfaction.
El While the Sholly decision exnlicitly left open the precise
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nature of the hearing requirt ; by Sec. 189(a), for purposes of this memorandum we assume that an adjudicatory hearing q_,
will be required.
5 Tha Commission There are, of course, legislative options respon-(,,
sive to the Sholly decision which go beyond those
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One set centers on suggested in STCTA-80-183A.the question of the tim
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I should be offered on a no significant any, that harards consideration license amendment finding.
'The proposal set forth in SECY A-80-183A, while not explicit on this, was intended to re-institute the pre-Sholly policy of holding an after-the-fact adjudicatory hearing on such anendments.
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' Alternatively, legislative-type hearings could be proposed, and these could be either before orthe Commission's after-the-fact.
To the extent problem with the Shelly decision centers on the delay the decision will cause in effectuating minor license amendments, and the consequences of that delay, then a prior legislative hearing is Even a also a problem although less severe.
legislative hearing is likely to take a feu months from the time the arendment is noticed to the time of decision, a passage of time which in many instances probably could not be accommodated in the licensing review process without being on the critical path.
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As to after-the-fact options, the choice among if for no other reason thaa them seems unimportant that after-the-fact hearings of whatever kind are m
Moreover, by hypothesic not ordinarily requested.
an after-the-fact hearing, of whatever kind, wi11 interfere with the license amendment process.
not The Commission might consider the option of no,
hearing whatsoever on a no significant hazards consideration amendment.
This would give legis-lative recognition to the fact that after-the-facs the hearings are rarely if ever invoked, and that approvals at issue are too minor to warrant aUnder th I
hearing.
1enges to the amendment would take the form of a it is at least arguable 10 C.F.R. 2.206 request, that a person contesting a minor amendment should have no stronger claim to an adjudicatory hearing 2.206 than a person whose claim for 10 C.F.R.
action is considered not sufficiently important G warrant convening an adjudicatory board.
Another set of possible legislative variants concerns the no significant harards consideratioc finding itself.
Any legislative proposal touchit decision es this issue would go beyond the Shelly
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6 The Commission
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since the court's opinion does not speak to the question of how trifling an amendment must be in
'd The issue can order to fall within that category.
be important ev'en if the Sholly ruling is other-wise legislatively corrected, because the oppor-tunity for a prior adjudicatory hearing would then once again hinge upon whether the no significant Since l
hazards consideration finding can be made.
it is now widely appreciated that the Commission f
makes such a finding at the rate of some 400 per year, it is not unlikely that a lawsuit will be brought to challenge the Commission's frequent use of that finding.
An adverse court ruling on the scope or such a finding would again put the
' Commission in virtually the same place as the Sholly decision--that an adjudicatory hearing if f
requested by an interested person must precede the effectiveness of the license amendment.
The possible legislative variants run from making the Co= mission's decision on a no significcnt hazards consideration finding judicially unreview-to some sort of legislative recognition that
- able, countenances such frequent use of the no signifi-cant hazards consideration finding.
However, as j [,N noted earlier, any legislative proposal touching l
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this issue would go beyond the Sho11y decision.
j Once the principle of limiting the Commission's legislative proposal to the impact of the Sholly dec.ision is breached, then the field for proposed legislative changes is open-ended, j
That the Commission adopt the legislative proposal f
Reccmmendation:
forth in SECY A-90-183A or at minimum choose set l
a legis1.?tive proposal which overrules that aspect of the Sholly decision which requires a prior t
hearing, on request, before a no significant hazards consideration amendment can be made effective.
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Leonard Bickwit, Jr.
General Counsel G
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H ward Shapar 77 Executive Legal Director
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The Comission Comissioners' coments should be provided directly to the office of the Secretary by c.o.b. January 21, 1981.
Comission Scaff Office coments, if any, should be submitted to the Commissioners NLT January 14, 1981, with an information copy to the Office of the. Secretary.
If the paper is of such a nature that it requires additional time for analytical review and coment, the Commissioners and the Secretariat should be apprised of when coments may be expected.
DISTRIBUTION Commissioners Commission Staff Offices EDO ACRS ASLBP ASLAP SECY l
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