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'o UNITED STATES NUCLEAR REGULATORY COMMISSION o
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.E WASHINGTON. D.C. 20066
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OFFICE OF THE i
COMMISSIONER April 1, 1983 l
MEMORANDUM FOR SAMUEL J. CHILK, S FROM:
William J. Manning, OCM
SUBJECT:
SEPARATE VIEWS Attached are commissioner Gilinsky's separate views regarding the interim rule on No Significant Hazards considerations and the proposed rule on Temporary Operating Licenses.
Please ensure that these views are published in the Federal Register together with these rules.
cc:
W. Reamer V. Harding J. Laverty P. Davis OGC EDO 3
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J 4/1/83 COMMISSIONER GILINSKY'S SEPARATE VIEWS ON THE INTERIM FINAL RULE REGARDING STANDARDS FOR DETERMINING WHETHER LICENSE AMENDMENTS INVOLVE NO SIGNIFICANT HAZARDS CONSIDERATIONS (AMENDHENTS TO 10 CFR PART 50)
Standing by themselves, the standards which are set forth in the rule are so general that they offer no real guidance to the NRC staff.
In a prior version of the rule, the Commission included, in the rule itself, some very useful l
l examples of which amendments do and do not involve a significant hazards consideration.
In the final version, these examples have been downgraded to the preamble of the rule where they will be of little or no legal consequence and where, as a practical matter, they will be inaccessible to anyone but the NRC historian.
This diminishes the value of the rule so much that I can no longer approve it.
The earlier version of the rule placed amendments authorizing substantial spent fuel pool expansions in at significant hazards consideration category.
The Commission should have retained this categorization which is consistent with the terms of the rule.
Moreover, the Commission should I
not have ignored the strong public and Congressional vic which have been expressed on this point, most recently by Senators Simpson, Hart, and Mitchell.
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' COMMISSIONER GILINSKY'S SEPARATE VIEWS REGARDING THE PROPOSED RULE ON TEMPORARY OPERATING LICENSES (AMENDMENTS TO 10 CFR PARTS 2 AND 50)
I have voted against the Temporary Operating License rule because of the Commission's decision to exempt Temporary Operating License proceedings from the ex parte and separation of functions rules.
"This would mean that the Commission's staff, applicants and intervenors would be free to contact individual Commissioners as well as the l
Commission's Office of General Counsel and Office of Policy i
Evaluation to argue their respective position on the temporary operating license."
(A sentence of explanation which appeared in the penultimate draft and which the I
commission was too modest to leave in the final version.)
1 This decision is but another example of the Commission's
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deep-seated hostility toward informing the public and involving it in NRC's proceedings.
The decision is l
incompatible with the basic notienc of fairness which underlie the ex parte rules since the temporary operating license issues will inevitably be quite similar to the i
issues in the operating license hearing which will be going on at the same time.
As has so often happened, the course chosen by the Commission is likely to be self-defeating:
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l ADDITIONAL VIEllS DF COMMISSIONER ASSELSTINE I strongly disagree with the Comission majority's decision not to apply the provisions of 10 CFR Sections 2.719 and 2.780, relating to separation of functions and g parte cotsunications, as part of the procedural requirements for implementing the temporary operating license authority in Section 192 of
.the Atomic Energy Act of 1954, as amended.
In all likelihood, the is:ues that will be raised before the Comission in the temporary operating license proceedings unde-the provisions of 5ection 19? will be similar to, or the same as, the issues being adjudicated in the hearing in the final operating license procee# dings. By permitting the flRC staff and the applicant, among others, to make informal off-the-record contacts with the Comission on these issues during the temporary operating license proceedings, the Comission majority's proposed rule presents a grave risk of contaminating the formal on-the-record operating license proceeding.
I do not believe that this risk of contaminating the final operating license proceeding can be avoided easily if informal, off-the-record contacts on similar issues arising in the temporary license proceedings are permitted.
In order to assure procedural fairness in our operating license proceedings, I would apply our regulations relating to separation of functions and g partr: comunications to temporary operating license proceedings, just as we now do for final operating license proceedings.
W ADDITIONAL COMMENTS OF C0fmISSIONER AHEARNE e
There have been several complaints that the criteria for detemining when an amendant involves significant hazards considerations are unclear or difficult to apply. For example, in the current notice the Comission notes that a commenter on the proposed rule stated the standards are " unclear and useless in that they imply a level.of detailed review of amendment applications far beyond what the staff nomally performs."1 However, these criticisms must be considered in context.
In May 1976 a petition for rulemaking was filed which requested that criteria be specified for determining when an amendment involved no significant hazards considerations.2 The petition was published for coment in 1976.3 The Comission received a few coments, primarily supporting or opposing criteria which had been proposed in the petition. The discussion focused on underlying philosophical / legal issues rather than specific alternative criteria.
The rulemaking then lay dormant for several years. In late 1979 the Comission addressed the matter and agreed to issue a proposed rule for IThis refers to: "Coments by the Natural Resources Defense Council and the Union of Concerned Scientists on Proposed amendments to 10 CFR Parts 2 and 50: NoSignificantHazardsConsideration"at8(May23,1980)(comment 3,PR-2,50(45FR20491)).
2The petition was filed May 7,1976 by Mr. Robert Lowenstein on behalf of Boston Edison Company, Florida Power and Light Company, and Iowa Power Company.
341 Fed. RS. 24006 (June 14, 1976).
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2 public coment. The proposed rule was published in March 1980.4 As the Comission explained in that notice:
"During the past several years, the Staff has been guided in reaching its findings with respect to 'no significant hazards consideration' by staff criteria and examples of amendments likely to involve, and not likely to involve, significant hazards considerations. These criteria and examples have been promulgated within the Staff and have proven useful-to the Staff. The Commission believes it would be useful to consider incorporating these criteria into the Commissicn's regulations fdr use in determining whether a proposed amendment to an operating license or to a construction permit of any productir,n or utilization facility involves no significant hazards consideration."5 t
With respect to the criticism that the criteria are unclear, we have not received much assistance in developing clearer criteria despite having l
obtained two rounds of comment over the last seven years. For example, in the comer.t. on the proposed rule mentioned above, NRDC and UCS simply argued:
"The NRC should promulgate a rule holding that prior notice and opportunity for hearing should be provided for construction pemit and operating licenses amendments in all cases except those involving no significant previously-unreviewed safety issue."6 In addition, the debate has often i
445 Fed. Reg. 20491 (March 28,1980).
SId. at 20492.
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Id. at 11.10 CFR 50.59 deems actions to be an "unreviewed safety qiie'stion":
"(i) if the probability of occurrence or the consequences of an accident or malfunction of equipment important to safety previously evaluated in the safety analysis report may be increased; or (ii) if a possibility for an accident or malfunction of a different type than any evaluated previously in the safety analysis report may be created; or (iii) if the margin of safety as defined in the basis for any technical specification is reduced."
NRDC/UCS did not propose an alternate definition to be used with their proposal.
It is interesting to note the substantial similarity to the significant hazards consideration test.
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'3 become confused by differing assumptions and philosophies that are not It usually clearly identified. For example, the NRDC/UCS implication of a detailed level of review arises largely because of an implicit assumption that the criteria are intended to require a merits type review.
In fact, what the staff has always done, and what I believe we had in mind, was to s
make a preliminary judgment.
Basically, we have done the best we can.
I would be willing to address any specific alternatives. However, after dealing with this for a number of years, I believe we must move ahead with woat we have.
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t ADDITIONAL VIEWS OF COMMISSIONER ASSELSTINE I strongly disagree with the Commission majority's decision to permit the use of the "Sholly amendment" authority contained in section 12 of Public Law 97-415, the NRC Authorization Act for fiscal years 1982
- and 1983, for license amendments for the reracking of a. spent fuel pool.
The Commission majority's interim final rule would change. the Commission's longstanding and consistent policy of requiring that any requested hearing on a license amendment for the reracking of a spent fuel pool be completed prior to granting the license amendment. Al-though the Commission has considered and appro,ed a large number of spent fuel pool reracking amendments in the past, it has never used the no significant hazards consideration provisions in section 189 a. of the Atomic Energy Act of 1954 as a basis for approving the amendment before the completion of a requested hearing.
It is clear to me from the legislative history of section 12 of-Public Law 97-415 that the Congress did not intend that the authority granted by section 12 should be used to approve rcracking amendments prior to the completion of any requested hearing. The Sholly amendment was first included in the NRC authorization bill for fiscal years 1982 and 1983 by -the Senate Committee on Environment and Public Works. The
p report of that Comittee on the bill (Senate Report 97-113) makes it abundantly clear that the Comi'ttee did not intend the Sho11y amendment to be used by the Comission to approve reracking amendments in advance of the completion of a requested hearing. Although the report of the Conference Comittee on the bill did not repeat this admonition, there is no evidence to indicate a contrary view by the House-Senate conferees on the bill or by the two House Comittees that considered the legislation.
Moreover, I believe that the use of the Sholly amendment authority to approve reracking amendments before the completion of any required hearing goes far beyond the justification offered by the Comission when it requested the Sholly amendment.
In requesting the enactment of the Sholly amendment, the Comission described in some detail the situations in which it foresaw the need for this authority. The Comission em-phasized the need for a large number of unforeseen and unanticipated changes to the detailed technical specifications in the operating licenses for nuclear powerplants that arise each year through such activities as refueling of the plant.
Ine Comission argued that the need to hold a hearing on each of these changes, if one is requested, would be burdensone to the Comission and could disrupt the operation of a number of plants.
In order to avoid this problem, the Comission asked the Congress to reinstate the authority that the Comission had exercised in similar situations since 1962. A reracking amendment is substantially different from the situations described by the Comission in requesting the Sholly amendment, because the need for reracking can be anticipated, because reracking involves a substantial physical
modification to the plant and because of the significance attached to reracking by State and local officials and by the public.
Finally, I believe that there are strong public policy reasons for continuing the Commission's past practice of completing hear?ngs on reracking amendment proposals before approving the amendment. These public policy reasons include the strong interest and concern on the part of State and local governments and the public regarding reracking proposals and the extent to which proceeding with reracking in advance of the hearing may prejudice the later consideration of other alternatives to the proposed reracking plan.
For these reasons, as a matter of policy, I would not permit the use of the Sholly amendment authority to approve reracking amendments t
prior to the completion of any requested hearing.
I would therefore
'have added a provision to the Commission's interim final rule that would have required, as a policy matter, the completion of any requested hearing on a spent fuel pool reracking amendment before Commission approval of the amendment.
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APR'S 1983 MEMORANDUM FOR:
Joseph M. Felton, Director Division of Rules and Records s-Office of Administration 1
FROM:
William J. Olmstead Director and Chief Counsel Regulations Division 1
Office of the Executive Legal Director
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SUBJECT:
IMPLEMENTATION OF COMISSION ACTION 1-On Wednesday, March 30, 1983, the Comission approved three Federal Registtr f
notices publishing (1) a proposed rule on temporary operating licensing
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2' authority (2) an interim final rule on standards for determining whether 9
license amendments involve no significant hazards considerations and (3) an i
interim final rule on notice and State consultation with respect to E!
. amendments involving no significant hazards considerations,-
The Office of the Secretary has expedited implementation of the Comission's action by having the enclosed regulations and enclosed Comissioners' views published in the Federal Register. The proposed rule on temporary licensing i
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. authority will be published for 30 days' public coment. The two interim final rules on standards and-notice will be made effective 30 days after 9
publication in the Federal Register, during which time comments are requested M
on these rules.
In the interim final rule on notice and State consultation,
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the date 30 days after. publication in the Federal Register will also be inserted in the introductory section of 5 50.91.
(See page 30).
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q Also enclosed please find (1) signed originals of Congressional letters to be sent to the Office of Congressional Affairs, (2) a copy of the'public announcement to be sent to the Office of Public Affairs, (3) a copy of theRegulatoryAnalysittobesenttothePublicDocumentRoom,and(4)a signed original of the letter to Mr. Lowenstein closing out his petition of May 7,1976, with respect to standards on no significant hazards considerations. (Note that the pertinent Comission papers (SECY-79-660, 3
81-366, 81-366A, (3 T6,83-16A and 83-16B) should already be in the PDR.)
Marked.-up copies. of the Federal Register notices need not be sent to the Office of the Secretary because it already has these copies.
We understand t.
- the Offices of Nuclear Reactor Regulation and State Programs and the Division of Technical Information and Document Control will be sending copies of the Federal Register notices to affected licensees, States, and other interested persons.
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As noted before, the Office of the Secretary already has the-originals of the three Federal Register notices and will be making the requisite copies.
William J. Olmstead Director and Chief Counsel Regulations Division Office of the Executive Legal Director
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DISTRIBUTION:
Dorian WJ0lmstead OELD R/F OELD S/F Central File Regs R/F l
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/83
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The Honorable Alan Simpson, Chairman Subcomitee on Nuclear Regulation Comittee on Environment and Public Works United States Senate Washington, D.C.
20510
Dear Mr. Cnairman:
The Comission is preparing to adop't amendments to its " Rules of Practice for Domestic Licensing Proceedings in 10 C.F.R. Part 2 and to its regulations in 10 C.F.R. Part 50, " Domestic Licensing of Production and Utilization Facilities," to reflect Public Law 97-415, enacted on January 4,1983, authorizing the Comission to issue temporary operating licenses.
The legislation also directs the Comission to promulgate, within 90 days of enactment, regulations which establish (a) standards for~ determining whether an amendment to an operating license involves no significant hazards consideration, (b) criteria for providing or, in emergency situations, for dispensing with prior notice and opportunity for public coment on such a determination, and (c) procedures for consultation on such a determination with the State in which the facility involved is located.
To implement this legislation, the Comission has prepared the enclosed regulations for publication in the Federal Register. The statements of consideration describe and explain the regulations in detail. A~public announcement is also enclosed.
Sincerely, Guy H. Cunningham, III Executive Legal Director
Enclosures:
As stated p
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