ML20155B456
Text
/ML/g fbE yd 6-g 3 [ pg MEMORANDUM FOR:
Edson G. Case, Deputy Director Office of Nuclear Reactor Regulation Darrell G. Eisenhut, Director Division of Licensing, NRR Joseph J. Fouchard, Director Office of Public Affairs G. Wayne Kerr, Director Office of State Programs Gus C. Lainas, Assistant Director for Operating Reactors, NRR Martin G. Malsch, Deputy General Counsel Office of the General Counsel Victor Stello, Jr., Deputy Executive Director for Regional Operations & Generic Requirements FROM:
William J. Olmstead Director & Chief Counsel, Regulations Division Office of the Executive Legal Director
SUBJECT:
DRAFT OF FINAL SH0LLY RULE ON SIGNIFICANT HAZARDS CONSIDERATIONS We circulated the enclosed draft of the final Sholly rule by a memorandum dated November 30, 1983. We received concurrences from OPA and OSP. We have not heard from OGC. We met with NRR on October 12, 1984. At that meeting, we agreed to expand and clarify the definition of " emergency situation" in the rule ( see pages 48 to 53 and 94 to 96), to clarify the notice procedures for
" exigent circumstances" ( see pages 53-57 and 95 to 96), to address the issue of repairs ( see page 38), and to clarify some minor matters. We believe NRR's coments have been accomodated.
(We will need NRR's updates for the material at pages 69 to 73, 76, and 79.)
As explained in our November 30, 1984 memorandumjthe rule combines the two interim final rules (on standards and notice) into one.
It also contains, to make it easier to follow and understand and to preserve for the public record, the responses to the coments on the proposed rule on standards as well as the responses to the coments on the interim final rules--many of the coments on the proposed and interim final rules were virtually identical. Some modifica-tions were made to the final rule, but the structure and key principals of the two interim final rules have remained the same.
41 167 860327 2 45FR20491 pga
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The issue of the way the examples should be handled has proved difficult.
Many comenters suggested additions to or modifications of the examples.
(A sumary of the coments is enclosed.) Some of these changes could prove controversial and could hold up promulgation of the final rule. The simplest resolution might be to state--as has been done in numerous places in the preamble of the rule--that the examples are merely guidelines and that the present ones are adequate as such. A more difficult resolution might be to say that the staff will publish the examples in a regulatory guide or other such document with the recomended changes it has accepted. The most difficult resolution might be to tackle the examples in the preamble of the rule. We have chosen the first approach.
When we have resolved your coments and received your concurrence, we will prepare a Comission paper and the other material needed to send this rule to the Comission.
We would appreciate your coments and Office concurrence--again-- on this draft by C.0.B. January 15, 1985.
If you have any questions, please call Tom Dorian at x28690.
William J. Olmstead Director and Chief Counsel Regulations Division Office of the Executive Legal Director
Enclosures:
As stated.
cc:
J. Becker, OELD DISTRIBUTION M. Blume. 0GC Itoorian E. Christenbury, OELD WJ0lmstead J. Philips, RPB OELD R/F J. Scinto, OELD 0 ELD S/F J. Thoma, NRR Regs R/F C. Tramell, NRR Central File S. Weissberg, OSP OFC :0 ELD (
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DATE 212/'P /84
- 12/M/84
[7590-01]
NUCLEAR REGULATORY COMMISSION 10 C.F.R. Parts 2 and 50 Final Procedures and Standards on No Significant Hazards Considerations AGENCY:
Nuclear Regulatory Comission.
ACTION:
Final rule.
SUMMARY
- Pursuant to Public Law 97-415, NRC is amending its regulations in final form (1) to provide procedures under which normally it would give prior notice of opportunity for a hearing on applications it receives to amend operating licenses for nuclear power reactors and testing facilities (research reactors are not covered) and prior notice and reasonable opportunity for public comment on proposed determinations about whether these amendments involve no significant hazards considerations, (2) to specify criteria for dispensing with such prior notice and reasonable opportunity for public coment in emergency situations and for shortening the coment period in exigent circumstances, and (3) to furnish procedures for consultation on any such determinations with the State in which the facility involved is located. These procedices nomally provide the public and the States with prior notice of NRC's deteminations involving no significant hazards considerations and with an opportunity to coment on its actions.
EFFECTIVE DATE:
ADDRESSES:
Copies of coments received on the amendments and of the other documents described below may be examined in the Comission's Public Document Room at 1717 H Street, N.W., Washington, D.C.
Copies may be obtained from the NRC/GPO Sales Program. U.S. Nuclear Regulatory Comission, Washington, D.C.
20555.
FOR FURTHER INFORMATION CONTACT:
Thomas F. Dorian, Esq., Office of the Executive Legal Director, U.S. Nuclear Regulatory Comission, Washington, D.C.
20555. Telephone: (301)492-8690.
SUPPLEMENTARY INFORMATION:
INTRODUCTION Public Law 97-415, signed on January 4, 1983, among other things, directed NRC to promulgate 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, dispensing with prior notice and public comment on any such determination, and (c) procedures for consulting on such a determination with the State in which t ho facility involved is located.
See Conf. Rep. No.97-884, 97th Cong.,2dSess.(1982). The legislation also authorized NRC to issue and make imediately effective an amendment to a license, upon a determination that the amendment involves no significant hazards consideration (even though NRC has before it a request for a hearing by an interested person) and in advance of the holding and completion of any required hearing.
The two interim final rules published in the FEDERAL REGISTER on April 6, 1983 (48 FR 14864) and (48 FR 14873) responded to the statutory directive that NRC expeditiously promulgate regulations on the three items noted above.
The first dealt with the standards themselves and the second with the notice and State consultation procedures. These regulations were issued, as final though in interim form, and coments have been considered on them.
The following discussion is divided into three parts. The first discusses the background for this final rule, including a discussion of the proposed rule on the standards published before passage of the legislation, as well as an overview of the interim final rules published after the legislation was enacted.
See 45 FR 20491 (March 28, 1980). The second analyzes and responds to the public comments on the two interim final rules. And the third discusses the present practice and modifications made to it by the final rule.
l I.
BACKGROUND A.
Affected Legislation, Regulations and Procedures When the Atomic Energy Act of 1954 (Act) was adopted in 1954, it contained no provision which required a public hearing on issuance of a construction permit or an operating license for a nuclear power reactor in the absence of a request from an interested person.
In 1957, the Act was amended to require that mandatory hearings be held before issuance of both a construc-tion permit and an operating license for power reactors and certain other facilities.
See Public Law 85-256 (71 Stat. 576) amending section 189a. of the Act.
s
. The 1957 amendments to the Act were interpreted by the Comission as requiring a " mandatory hearing" before issuance of amendments to construction permits and operating licenses.
See, e A, Hearing Before
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the Subcomittee on Legislation, Joint Comittee on Atomic Energy, 87th i
Cong.,2d.Sess.(April 17,1962),at6.) Partially in response to the i
i administrative rigidity and cumbersome procedures which this interpretation j
forced upon the Comission (see, Joint Comittee on Atomic Energy Staff
. Study, " Improving the AEC Regulatory Process", March 1961, pp. 49-50),
l-section 189a. of the Act was amended in 1962 to eliminate the requirement for a mandatory public hearing except upon the application for a construction l
pemit for a power or testing facility. As stated in the report of the Joint l
Comittee on Atomic Energy which recomended the amendments:
1 Accordingly, this section will eliminate the requirements for a mandatory hearing, except upon the application for a construction a
permit for a power or testing facility. Under this plan, the issuance of amendments to such construction pemits, and the issuance of operating licenses and amendments to such construction permits, and the issuance of operating licenses and amendments to i
operating licenses, would be only after a 30-day public notice and an offer of hearing. In the absence of a request for a hearing, issuance of an smendment to a construction permit, or_ issuance of i
an operating license, or an amendment to an operating license, would be possible without formal proceedings, but on the public record.
It will also be possible for the Comission to dispense with the 30-day notice requirement where the application presents no significant hazards consideration. This criterion is presently 4
being applied by the Comission under the terms of AEC Regulations 50.59. House Report No. 1966, 87th Cong., 2d. Sess., p. 8.
Thus, according to the 1962 amendments, a mandatory public hearing would no longer be required before issuance of an amendment to a construction permit or operating license and a thirty-day prior public notice would be required only if the proposed amendment involved a "significant i
hazards consideration."
In sum, section 189a. of the Act, now provides that, upon thirty-days' notice published in the FEDERAL REGISTER, the Conrission may issue an operating license, or an amendment to an operating license, or an amendment to a construction permit, for a facility licensed under sections 103 or 104b. of the Act, or for a testing facility licensed under section 104c., without a public hearing if no hearing is requested by any interested person. Section 189a. also pemits the Comission to dispense with such thirty-days' notice and FEDERAL REGISTER publication with respect to the issuance of an amendment to a construction permit or an amendment to an operating license upon a detennination by the Comission that the amendment involves no significant hazards consideration. These provisions have been incorporated into il 2.105,2.106,50.56(a)and(b) and 50.91 of the Comission's regulations.
The regulations under the two interim final rules provide for prior notice of a " proposed action" on an application for an amendment when a determination is made that there is a significant hazards consideration and provide an opportunity for interested members of the public to request a hearing.
See il2.105(a)(3)and50.91. Hence, if a requested license amendment is found to involve a significant hazards consideration, the amendment would not be issued until after any required hearing is completed or after expiration of the notice period.
In addition, 6 50.58(b) further explains the Comission's hearing and notice procedures, as follows:
The Comission will hold a hearing after at least 30 days notice and publication once in the FEDEPAL REGISTER on each application for a construction permit for a production or utilization facility which is of a type described in i 50.21(b) or i 50.22 or which is a
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i testing facility. When a construction permit has been issued for such a facility following the holding of a public hearing and an application is made for an operating license or for an amendwent to a construction permit or operating license, the Commission may hold a hearing after at least 30 days notice and publication once in the FEDERAL REGISTER or, in the absence of a request therefor by any person whose interest may be affected, may issue an operating license or an amendment to a construction permit or operating license without a hearing, upon 30 days notice and publication once in the FEDERAL REGISTER of its intent to do so.
If the Commission 4
finds that no significant hazards consideration is presented by an application for an amendment to a construction permit'or operating license, it may dispense with such notice and publication and may issue the amendment.
The Commission noted in its interim final rules that, after it has made its i
determination about whether a proposed license amendment does or does not present a significant hazards consideration, its hearing and attendant notice requirements come into play. Under its former rules, the Comission made its determination about whether it should provide a hearing before issuing an i
amendment together with its determination about whether it should issue a prior notice -- and the central factor in both determinations was the issue of "no significant hazards consideration."
It had been argued that in prac-tice this meant that the staff often decided the merits of an amendment together with the issue of whether it should give notice before or after it i
has issued the amendment. See48FR14864,at14865(April 6,1983). The argument arose, in part, because of some concern that the Act and the regu-i lations did not define the term "significant hazards consideration" and did l
not establish criteria for determi.71ng when a proposed amendment involves "significant hazards considerations." Section 50.59 has, of course, all j
along set forth criteria for determining when a proposed change, test or i
experiment involves an "unreviewed safety question" but it was and isiclear I
that not every such question involves a "significant hazards consideration."
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,,w-ewa, The Comission's practice with regard to license amendments involving no significant hazards consideration (unless, as a matter of discretion, prior notice was given) was to issue the amendment and then publish in the FEDERAL REGISTER a " notice of issuance." See i 2.106.
In such a case, interested members of the public who wished to object to the amendment and request a hearing could do so, but a request for a hearing did not, by itself, suspend the effectiveness of the amendment. Thus, both the notice and hearing, if one were requested, occurred after the amendment was issued.
It is important to bear in mind that there is no intrinsic safety significance to the "no significant hazards consideration" standard.
Neither as a notice standard nor as a standard about when a hearing may be held does it have a substantive safety significance. Whether or not an action requires prior notice or a prior hearing, no license and no amendment may be issued unless the Comission concludes that it provides reasonable assurance that the public health and sa'ety will not be endangered and that the action will not be inimical to the common defense and security or to the health and safety of the public. See, e.g.,
550.57(a).
In short, the "no significant hazards consideration" standard is a procedural standard which governs whether an opportunity for a prior hearing must be provided before action is taken by the Comission, and whether prior notice for public comment may be dispensed with or shortened in some limited set of circumstances.
I B.
The Sho11y Decision and the New Legislation The Comission's practice of not providing an opportunity for a prior hearing on a license amendment not involving significant hazards considerations was held to be improper in Sholly v. NRC, 651 F.2d 780 (1980), rehearing denied, 651 F.2d 792 (1980), cert. granted 101 S.Ct. 3004 (1981) (Sholly).
In that case the U.S. Court of Appeals for the District of Columbia Circuit ruled that, under section 189a. of the Act, NRC must hold a prior hearing before an amendment to an operating license for a nuclear power plant can become effective, if there has been a request for hearing (or an expression of interest in the subject matter of the proposed amendment which is sufficient to constitute a request for a hearing). A prior hearing, said the Court, is required even when NRC has made a finding that a proposed amendment involves no significant hazards consideration and has detennined to dispense with prior notice in the FEDERAL REGISTER.
At the request of the Corinission and the Department of Justice, the Supreme Court agreed to review the Court of Appeals' interpretation of section 189a.
of the Act. On February 22, 1983, the Supreme Court vacated the Court of Appeal's opinion as moot and directed to reconsider the case in light of the new legislation. On April 4, 1983, the Court of Appeals, having considered the legislation, found that the portion of its opinion holding that a hearing requested under section 189a. of the Act must be held before a license amendment becomes effective would be moot as soon as NRC promulgated the regulations to which the legislation referred. The Court also found that NRC, of course, was still under a statutory mandate to hold a hearing after an amendment became effective, if requested to do so by an interested party.
Appeal Nos. 80-1691, 80-1783, and 80-1784.
_ The Court of Appeals' decision did not involve and has no effect upon the Comission's authority to order imediately effective amendments, without prior notice or hearing, when the public health, safety, or interest so requires. See, Administrative Procedure Act, 5 9(b), 5 U.S.C. 1 558(c),
section 161 of the Atomic Energy Act, and 10 C.F.R. li 2.202(f) and 2.204 Similarly, the Court did not alter existing law with regard to the Comission's pleading requirements, which are designed to enable the Comission to determine whether a person requesting a hearing is, in fact, an " interested person" within the meaning of section 189a. -- that.. whether the person has demonstrated standing and identified one or more issues to be litigated.
See, BPI v. Atonic Energy Comission, 502 F.2d 424, 428 (D.C. Cir.1974),
where the Court stated that, "Under its procedural regulations it is not unreasonable for the Corraission to require that the prospective intervenor first specify the basis for his request for a hearing."
The Comission believed that legislation was needed to change the result reached by the Court in Sholly because of the implications of the requirement that the Comission grant a requested hearing before it could issue a license amendment involving no significant hazards consideration.
The Comission believes that, since most requested license amendments involving no significant hazards consideration are routine in nature, prior hearings on such amendments could result in unnecessary disruption or delay in the operations of nuclear power plants by imposing regulatory burdens unrelated to significant safety matters.
Subsequently, on March 11, 1981, the Comission submitted proposed legislation to Congress (introduced ass.912)thatwouldexpresslyauthorizeittoissuealicenseamendment before holding a hearing requested by an interested person, when it has made a detemination that no significant hazards consideration is involved in the amendment.
After the House and Senate conferees considered two similar bills, H.R.2330
~and S.1207, they agreed on a unified version (see Conf. Rep. No.97-884, 97th Cong., 2d. Sess. (1982)) and passed Public Law 97-415. Specifically, section 12(a) of that law amends section 189a. of the Act by adding the following with respect to license amendments involving no significant hazards considerations:
(2)(A) The Comission may issue and make imediately effective any amendment to an operating license, upon a detemination by the Comission that such amendment involves no significant hazards consideration, notwithstanding the pendency before the Comission of a request for a hearing from any person. Such amendment may be issued and made immediately effective in advance of the holding and completion of any required hearing.
In detemining under this section whether such amendment involves no significant hazards consideration, the Comission shall consult with the State in which the facility involved is located.
In all other respects such amendment shall meet the requirements of this Act.
(B) The Comission shall periodically (but not less frequently than once every thirty days) publish notice of any amendments issued, or proposed to be issued, as provided in subparagraph (A).
Each such notice shall include all amendments issued, or proposed to be issued, since the date of publication of the last such periodic notice. Such notice shall, with respect to each amendment or proposed amendment (i) identify the facility involved; and (ii) provide a brief description of such amendment. Nothing in this subsection shall be construed to delay the effective date of any amendment.
(C) The Comission shall, during the ninety-day period following the effective date of this paragraph, promulgate regulations establishing (i) standards for detemining whether any amendment to an operating license involves no significant hazards consideration;(ii)criteriaforprovidingor,inemergency situations, dispensing with prior notice and reasonable opportunity for public coment on any such detemination, which criteria shall take into account the exigency of the need for the amendment involved; and (iii) procedures for consultation on any such determination with the State in which the facility involved is located.
Section12(b)ofthatlawspecifiesthat:
(b) The authority of the Nuclear Regulatory Commission, under the provisions of the amendment made by subsection (a), to issue and to make immediately effective any amendment to an operating license shall take effect upon the promulgation by the Comission of the regulations required in such provisions.
Thus, as noted above, the legislation authorizes NRC to issue and make imediately effective an amendment to an operating license upon a determination that the amendment involves no significant hazards considerations, even though NRC has before it a request for a hearing from an interested person.
In this regard, th.a Conference Report states:
The conference agreement maintains the requirement of the current section 189a. of the Atomic Energy Act that a hearing on the license amendment be held upon the request of any person whose interest may be affected. The agreement simply authorizes the Commission, in those cases where the amendment involved poses no significant hazards consideration, to issue the license amendment and allow it to take effect before this hearing is held or completed. The conferees intend that the Comission will use this authority carefully, applying it only to those license amendments which pose no significant hazards consideration. Conf. Rep.
No.97-884, 2d. Sess., at 37 (1982).
And the Senate has stressed:
its strong desire to preserve for the public a meaningful right to participate in decisions regarding the comercial use of nuclear power. Thes, the provision does not dispense with the requirement for a hearing, and the NRC, if requested [by an interested person],
must conduct a hearing af ter the license amendment takes effect.
See S. Rep. No.97-113, 97th Cong., 1st Sess., at 14(1981).
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_ The public notice provision was exple' qed by the Conference Report as follows:
The conferees note that the purpose of requiring prior notice and an opportunity for public comment before a license amend-ment may take effect, as provided in subsection (2)(C)(ii) for all but emergency situations, is to allow at least a minimum level of citizen input into the threshold question of whether the proposed license amendment involves significant health or safety issues. While this subsection of the conference agree-ment preserves for the Commission substantial flexibility to tailor the notice and comment procedures to the exigency of the need for the license amendment, the conferees expect the content, placement and timing of the notice to be reasonably calculated to allow residents of the area surrounding the facility an adequate opportunity to formulate and submit reasoned comments.
The requirement in subsection 2(C)(ii) that the Commission promulgate criteria for providing or dispensing with prior notice and public comment on a proposed determination that a license amendrent involves no significant hazards consideration reflects the conferees' intent that, wherever practicable, the Commission should publish prior notice of, and provide for prior public connent on, such a proposed determination.
Inthecontextofsubsection(2)(C)(ii),theconferees understand the term " emergency situations" to encompass only those rare cases in which immediate action is necessary to prevent the shutdown or derating of an operating commercial reactor... The Commission's regulations should insure that the " Emergency situations" exception under section 12 of the conference agreement will not apply if the licensee has failed to apply for the license amendment in a timely fashion.
In other words, the licensee should not be able to take advantage of the emergency itself. To prevent abuses of this provision, the conferees expect the Commission to independently assess the licensee's reasons for failure to file an application sufficiently in advance of the threatened closure or derating of the facility. Conf. Rep. No.97-884, 97th Cong., 2d Sess.,
at 38 (1982).
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- C.
Basis for Interim Final Rule on Standards for Determining Whether an Amendment to an Operating License Involves No Significant Hazards Considerations and Examples of Amendments that Are Considered Likely or Not Likely to Involve Significant Hazards Considerations Many of the comments on the interim final rule were the same or were similar to those on the proposed rule. To provide a conydnient means for future reference, the coments and responses on the proposed rule and the petition for rulemaking are consolidated and repeated here with references to the earlier FEDERAL REGISTER citations. The recent coments received on the interim final rule are then discussed and the Comission's responses are provided.
1.
Petition and Proposed Rule General The Comission's interim final rule on standards for determining whether an amendment involves no significant hazards consideration resulted from a notice of proposed rulemaking issued in response to a petition for rulemaking (PRM 50-17) submitted by letter to the Secretary of the Conunission on May 7,1976, by Mr. Robert Lowenstein. For the reasons discussed below, the petition was denied. However, the Comission published proposed standards, as intended by the petitioner, though not the standards petitioned for.
(PRM-50-17 was published for coment in the FEDERAL REGISTER on June 14, 1976 (41FR24006)). The staff's recommendations on this petition are in SECY-79-660 (December 13,1979). The notice of proposed rulemaking was published in the FEDERAL REGISTER on March 28,1980(45FR20491). Note that the proposed rule was published before passage of the legislation and that the
.. Congress was aware of this rule during passage of the legislation. The staff's i
recommendations first on a final rule and later on the interim final rule are in SECY-81-366, 81-366A, 83-16,83-16A and 83-16B.
(These documents are available for examination in the Commission's Public Document Room at 1717 H Street,N.W. Washington,D.C.)
In issuing the proposed rule, the Commission sought to define rpre precisely the standards for determining when an amendment application involved significant hazards considerations. These standards would have applied to amendments to operating licenses, as requested by the petition for rule-making, and also to construction permit amendments, to whatever extent considered appropriate. The Commission later decided that these standards should not be applied to amendments to construction permits, since such amendments are very rare and normally would not be expected to involve a significant hazards consideration.
It therefore modified the proposed rule accordingly. Additionally, the Commission stated in the interim final rule that it would review the extent to which and the way standards should be applied to research reactors. And it noted that, in the meanwhile, it would handle case-by-case any amendments requested for construction perraits or for research reactors with respect to the issue of significant hazards considerations. 48 FR, at 14867.
Before the proposed rule on standards was published, the Commission's staff was guided, in reaching its determinations with respect to no significant hazards considerations, by standards very similar to those described in the proposed rule and in the interim final rule.
In addition, a list of examples have been used of amendments likely to involve, and not likely to involve, significant hazards considerations when the standards are applied. These examples were employed by the Comission in developing both the proposed rule and the interim final rule. The notice of proposed rulemaking contained standards proposed by the Connission to be incorporated into Part 50, and the statement of considerations contained examples of amendments to an operating license that are considered "likely" and "not likely" to involve a signif-icant hazards consideration. The examples were samples of precedents with which the staff was familiar; they were representative of certain kinds of circumstances; however, they did not cover the entire range of possibilities; nor did they cover every facet of a particular situation. Therefore, it was clear that the standards ultimately would have to govern a determination about whether or not a proposed amendment involves significant hazards considerations.
The three standards proposed in the notice of proposed rulemaking were whether the license amendment would: (1) involve a significant increase in the probability or consequences of an accident previously evaluated, (2) create the possibility of an accident of a type different from any evaluated previously, or (3) involve a significant reduction in a margin of safety.
The interim final rule did not change these standards.
. l i
As a result of the legislation, the Commission formulated separate notice and State consultation procedures that provide in all (except emergency) situations prior notice of amendment requests. The standards and the examples are usually limited to a " proposed determination" and, when a hearing request is received, to a " final determination" about whether or not significant hazards considerations are involved in connection with an amendment and, therefore, whether or not to offer an opportunity for a hearing before an amendment is issued. The decision about whether or not to issue an amendment has continued to remain one that, r2s a separate matter, is based on public health and safety.
2.
Comments on Proposed Rule and Responses to these Comments a.
General Nine persons submitted comments on the petition for rulemaking and nine persons submitted comments on the proposed amendments. One of the commenters stated that all three standards were unclear and useless in that they implied a level of detailed review of amendment applications far beyond what the staff normally performs. When it promulgated the interim final rule, the Commission stated in response to this comment that it was its considered judgnent that the standards have been and will continue to be useful in making the necessary reviews. 48FR14864,at14867(April 6, 1983).
It added its belief that the standards when used together with the examples will enable it to make the requisite decisions. Iji.
In this regard, it noted that Congress was more than aware of the Commission's standards and proposed their expeditious promulgation.
It quoted, for example, the
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_ _ _ _ Senate Report which stated:
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... the Comittee notes that the Comission has already issued for public coment rules includi.'g standards for determining e
whether an amendment involves no significant hazards consideration.
The Comittee believes that the Comission should be able to build upon this past effort, and it expects the Comission to act i
expeditiously in promulgating the required standards within the time specified in section 301 [1.e., within 90 days after enactment].
S. Rep. No.97-113, 97th Cong., 1st Sess., at 15(1981).
Similarly, the House noted:
The comittee amendment provides the Comission with the authority to issue and make imediately effective amendments to licenses prior to
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theconductorcompletionofanyhearingrequiredbysection189(a) i when it determines that the amendment involves no significant hazards consideration. However,the authority of the Comission to do so is discretionary, and does not negate the requirement imposed by the Sho11y decision that such a hearing, upon request, be subsequently held. Moreover, the Committee's action is in light of the fact that i
the Comission has already issued for public coment rules including standards for determining whether an amendment involves no signifi-cent hazards considerations. The Comission also has a long line of case-by-case precedents under which it has established criteria for such determinations....
H. Rep. No. 97-22 (Part 2), 97th Cong.,1st Sess., at 26(1981)(Emphasisadded).
s A number of commenters recommended, in regard to the second criterion in the 1
l proposed rule, that a threshold level for accident consequences (for example, the limits in 10 C.F.R. Part 100) be established to eliminate insignificant types of accidents from being given prior notice. This coment was not accepted. The Commission stated that setting a threshold level for accident i
consequences could eliminate a group of amendments with respect to accidents which have not been previously evaluated or which, if previously evaluated, may turn out after further evaluation to have more severe consequences than
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previously evaluated. 48 FR, at 14868.
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The Comission explained that it is possible, for example, that there may be a
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class of license amendments sought by a licensee which, while designed to improve or increase safety may, on balance, involve a significant hazards consideration because they result in operation of a reactor with a reduced safety margin due to other factors or problems (i.e., the net effect is a reduction in safety of some significance). M.Suchamendmentstypically are also proposed by a licensee as an interim or final resolution of some significant safety issue that was not raised or resolved before issuance of the operating license -- and, based on an evaluation of the new safety issue, they may result in a reduction of a safety margin believed to have been present when the license was issued.
In this instance, the presence of the new safety issue in the review of the proposed amendment, at least arguably, could prevent a finding of no significant hazards consideration, even though the issue would ultimately be satisfactorily resolved by the issuance of the amendment. Accordingly, the Consnission added to the list of examples considered likely to involve a significant hazards consideration a new example (vii). M. See Section I(C)(1)(d) below.
In promulgating the interim final rule, the Comission noted that, when the legislation described before was being considered, the Senate Consnittee on Environment and Public Works comented upon the Consnission's proposed rule before it reported S. 1207. M. The Consnittee stated:
The Consnittee recognizes that reasonable persons may differ on whether a license amendment involves a significant hazards consideration. Therefore, the Comittee expects the Comission to develop and promulgate standards that, to the maximum extent practicable, draw a clear distinction between license amendments that involve a significant hazards consideration and those that involve no significant hazards consideration. The Comitttee anticipates, for example, that consistent with prior practice, the Comission's standards would not pemit a "no significant hazards consideration" detemination for license amendments to permit reracking of spent fuel pools.
S. Rep. No.97-113, 97th Cong.,
1st Sess., at 15(1981).
The Comission agreed with the Comittee "that reasonable persons may differ on whether a license amendment involves a significant hazards consideration" and it tried "to develop and promulgate standards that, to the maximum extent practicable, draw a clear distinction between license amendments that involve a significant hazards consideration and those that involve no significant hazards consideration." 48 FR, at 14868. The Comission stated its belief that the standards coupled with the examples used as guidelines help draw as clear a distinction as practicable.
It decided not to include the examples in the text of the interim final rule in addition to the original standards, but, rather, to keep them as guidelines under the standards for the use of the Office of Nuclear Reactor Regulation. jd.
In promulgating the interim final rule, the Comission also noted to licensees that, when they consider license amendments outside the examples, it may need additional time for its detemination on no significant hazards considerations, and that they should factor this information into their schedules for develop-ing and implementing such changes to facility design and operation. Jd.
- The Comission stated its belief that the interim final rule thus went a long way toward meeting the intent of the legislation.
Id.
In this regard, it quoted the Conference Report, which stated:
The conferees also expect the Comission, in promulgating the regulations required by the new subsection (2)(C)(1) of section 189a.
of the Atomic Energy Act, to establish standards that to the extent practicable draw a clear distinction between license amendments that involve a significant hazards consideration and those amendments that involve no such consideration. These standards should not require the NRC staff to prejudge the merits of the issues raised by a proposed license amendment. Rather, they should only require the staff to identify those issues and determine whether they involve significant health, safety or environmental considerations.
These standards should be capable of being applied with ease and certainty, and should ensure that the NRC staff does not resolve doubtful or borderline cases with a finding of no significant hazards consideration. Conf. Rep. No.97-884, 97th Cong., 2d Sess.,
at37(1982).
The Comission stated that it had attempted to draft standards that are as useful as possible, and that it had tried to formulate examples that will help in the application of the standards. 48 FR, at 14868.
It noted that the standards in the interim final rule were the product of a long deliber-ative process.
(As will be recalled, standards were submitted by a petition for rulemaking in 1976 for the Comission's consideration.) The Comission then explained with respect to the interim final rule that the standards and examples were as clear and certain as the Comission could make them, and it repeated the Conference Report to the effect that the standards and examoles "should ensure that the NRC staff does not resolve doubtful or borderline cases with a finding of no significant hazards consideration."
Id.
_ _ - _ _ _ _ _ _ _ _. With respect to the Conference Comittee's statement, quoted above, that the
" standards should not require the NRC staff to prejudge the merits of the I
issues raised by a proposed license amendment," the Comission recalled that it was its general practice to make a decision about whether to issue i
a notice before or after issuance of an emendment together with a decision l
l about whether to provide a hearing before or after issuance of the amendment; I
thus, occasionally, the issue of prior versus post notice was seen by some as including a judgment on the merits of issuance of an amendment, ld. For instance, a commenter correnting on the proposed rule suggested that appli-cation of the criteria with respect to prior notice in many instances will necessarily require the resolution of substantial factual questions which largely overlap the issues which bear on the merits of the license amendment.
ld.,at14868-69. The implication of the comment was that the Comission at d
the prior notice stage could lock itself into a decision on the merits.
Conversely, the comenter stated that the staff, in using the no significant hazards consideration standards, was reluctant to give prior notice of amendments because its determination about the notice might be viewed as l
constituting a negative connotation on the rerits.
l The Comission noted in response that, in any event, the legislation had made these coments moot by requiring separation of the criteria used for providing or dispensing with public notice and coment on determinations about no significant hazards considerations from the standards used to make a detemination about whether or not to have a prior hearing if one is requested.
id., at 14869. The Comission explained that under the two interim final rules,
s the Comission's criteria for public notice and coment had been separated from its standards on the determination about no significant hazards consid-erations. M. It noted, in fact, that under the interim final rule involving the standards it would nomally provide prior notice (for public coment and an opportunity for a hearing) for each operating license amendment request.
And it stated its belief that use of these standards and examples would help it reach sound decisions about the issues of significant versus no significant hazards considerations and that their use would not prejudge the merits of a decision about whether to issue a license amendment. id.
It explained that it held this belief because the standards and the examples I
were merely screening devices for a decision about whether to hold a hearing before as opposed to after an amendment is issued and could not be said to prejudge the Comission's final decision to issue or deny the amendment request. M. As explained above, that decision has remained a separate one, based on separate public health and safety findings.
b.
Rerackina of Spent Fuel pools Before issuance of the two interim final rules, the Comission provided prior notice and opportunity for prior hearing on requests for amendments' involving reracking of spent fuel pools. When the interim final l
rule on standards was published, the Comission explained that it was not prepared to say that a reracking of a spent fuel storge pool will necessarily involve a significiant hazards consideration.
It stated that, nevertheless, as shown by the legislative history of Public Law 97-415, specifically of section 12(a), the Congress was aware of the Comission's practice and that statements were made by members of both Houses, before passage of that
_ ___ _______ _ - _ law, that these members thought the practice would be continued. J d_.
The report on the Senate side has been quoted above; the discussion in the House is four.d at 127 Cong. Record at H 8156, Nov. 5, 1981.
The Comission decided not to include reracking in the list of examples that are considered likely to involve a significant hazard consideration, because a significant hazards consideration finding is a technical matter which has been assigned to the Comission. However, in view of the expressions of Congressional understanding, the Comission stated that it felt that the matter deserves further study. Accordingly, it instructed the staff to prepare a report on this matter; and it stated that, upon receipt and review of this report, it would revisit this part of the rule. Jd. The report is described in detail in Section II(D) below.
In the interim final rule on standards, the Comission stated that, while it is awaiting its staff's report, it would make findings case-by-case on the l
question of no significant hazards consideration for each reracking ap-l plication, giving full consideration to the technical circumstances of the case, using the standards in 6 50.92 of the rule. Id_.
It also stated that it was not its intent to make a no significant hazards consideration finding i
for reracking based on unproven technology.
It added, however, that, where reracking technology has been well developed and demonstrated and where the Comission determines on a technical basis that reracking involves no significant hazards, the Comission should not be precluded from making such a finding. And it noted that, if it determines that a particular reracking involves significant hazards considerations, it would provide an opportunity for a prior hearing. Id.
The Comission also noted that, under section 134 of the Nuclear Waste Policy Act of 1982, an interested party may request a " hybrid" hearing in connection with reracking, and may participate in such a hearing, if one is held.
It stated that it would publish in the near future a FEDERAL REGISTER notice describing this type of hearing with respect to expansions of spent fuel storage capacity and other matters concerning spent fuel.
Id. That notice can be found at FR
(
,1983).
[This will be inserted if the Comission has acted before this rule is published.]
c.
Amendments Involving Irreversible Consequences There was some concern in Congress about amendments involving irreversible consequences.
In promulgating the interim final rule on standards, the Comission mentioned this concern and quoted the Conference Report, which stated:
The conferees intend that in detemining whether a proposed license amendment involves no significant hazards consideration, the Comission should be especially sensitive to the issue posed by license amendments that have irreversible consequences (such as those pemitting an increase in the amount of effluents or radia-tion emitted from a facility or allowing a facility to operate for a period of time without full safety )rotections).
In those cases, issuing the order in advance of a learing would, as a practical matter, foreclose the public's right to have its views considered.
In addition, the licensing board would often be unable to order any substantial relief as a result of an after-the-fact hearing. Accordingly, the conferees intend the Comission be sensitive to those license amendments which involve such irreversible consequences.
(Emphasisadded.) Conf. Rep. No.97-884, 97th Cong., 2d Sess., at 37-38 (1982).
~
The Comission noted 48 FR, at 14869, that this statement was explained in a colloquy between Senators Simpson and Domenici, as follows:
Mr. DOMENICI.
In the statement of managers, I direct attention to a peragraph in section 12, the so-called Sholly provision, wherein it is stated that in applying the authority which that provision grants the NRC should be especially sensitive to the issue posed by license amendments that have irreversible consequences."
Is that paragraph in general, or specifically, the words " irreversible consequences" intended to impose restrictions on the Comission's use of that authority beyond the provisions of the statutory language? Can the Senstor clarify that, please?
Mr. SIMPSON.
I shall.
It is not the intention of the managers that the paragraph in general, nor the words " irreversible consequences," provide any restriction on the Comission's use of that authority beyond the statutory provision in section 189a.
Under that provision, the only determination which the Comission must make is that its action does not involve a significant hazard.
In that context, " irreversibility" is only one of the many considerations which we would expect the Comission to consider.
It is the determination of hazard which is important, not whether the action is irreversible. Clearly, there are many irreversible actions which would not pose a hazard. Thus where the Comission determines that no significant hazard is involved, no further consideration need be given to the irreversibility of that action.
Mr. DOMENICI.
I thank the Senator for the clarification.
That is consistent with my readings of the language...
134 Cong.
Rec. (Part II), at S.13056 (daily ed. Oct.1,1982).
The Comissicn then noted, 48 FR, at 14869, that the statement was further explained in a colloquy between Senators Mitchell and Hart, as follows:
Mr. MITCHELL. The portion of the statement of managers discussing section 12 of the report, the so-called Sholly provision, stresses that in determining whether a proposed amendment to a facility operating license involves no significant hazards consideration, the Comisison "should be especially sensitive... to license amendments that have irreversible consequences." Is my understanding correct that the statement means the Comission should take special care in evaluating, for possible hazardous considerations, amendments that involve irreversible consequences?
Mr. HART. The Senator's understanding is correct. As you know, this provision seeks to overrule Ge holding of the U.S.
Court of Appeals for the District of Columbia in Sholly against Nuclear Regulatory Comission. That case involved the venting of radioactive krypton gas from the damaged Three Mile Island Unit 2 reactor -- an irreversible action.
As in this case, once the Comission has approved a license amendment, and it has gone into effect, it could prove impossible to correct any oversights of fact or errors of judgment. Therefore, the Comission has an obligation, when assessing the health or safety implications of an amendment having irreversible consequences, to insure that only those amendments that clearly raise no signif-icar.t hazards issues will take effect prior to a public hearing.
134 Cong. Rec. (Part III), at S. 13292.
In light of the Conference Report and colloquies it had quoted, the Comission stated that it would make sure "that only those amendments that clearly raise no significant hazards issues will take effect prior to a public hearing,"
48 FR, at 14870, and that it would do this by providing in 5 50.92 of the rule that it would review proposed amendments with a view as to whether they involve irreversible consequences. M.
In this regard, it made clear in example (iii) that an amendment which allows a plant to operate at full power during which one or more safety systems are not operable would be treated in 9
the same way as other examples considered likely to involve a significant hazards consideration, in that it is likely to meet the criteria in 5 50.92 of the rule. H.
The Comission also made it clear that the examples did not cover all possible cases, were not necessarily representative of all possible concerns, and were set out simply as guidelines. Jd.
The Comission lef t the proposed rule intact to the extent that the interim final rule stated standards with respect to the meaning of "no significant hazards consideration." The standards in the interim final rule were identical to those in the proposed rule, though the attendant language in new $ 50.92 as well as in 6 50.58 was revised to make the determination easier to use and understand. To supplement the standards incorporated into the Commission's regulations, the guidance embodied in the examples was referenced in the procedures of the Office of Nuclear Reactor Regulation, copies of which were placed in the Comission's Public Document Room and sent to licensees.
d.
Examples of Amendments that Are Considered Likely to involve Significant Hazards Considerations Are Listed Below The interim final rule listed the following examples of amendments that the Comission considered likely to involve significant hazards consid-erations. Jd.
It explained that, unless the specific circumstances of a license amendment request, when measured against the standards in 5 50.92, lead to a contrary conclusion, thEn, pursuant to the procedures in i 50.91, a propose' amendment to an operating license for a facility licensed under d
6 50.21(b) or i 50.22 or for a testing facility will likely be found to involve significant hazards considerations, if operation of the facility in accordance with the proposed amendment involves one or more of the following:
(i) A significant relaxation of the criteria used to establish safety limits.
_ (ii) A significant relaxation of the bases for limiting safety system settings or limiting conditions for operation.
(iii) A significant relaxation in limiting conditions for operation not accompanied by compensatory changes, conditions, or actions that maintain a comensurate level of safety (such as allowing a plant to operate at full power during a period in which one or more safety systems are not operable).
(iv) Renewal of an operating license.
(v) For a nuclear power plant, an increase in authorized maximum core power level.
(vi) A change to technical specifications or other NRC approval involving a significant unreviewed safety question.
(vii) A change in plant operation designed to improve safety but which, due to other factors, in fact allows plant operation with l
safety margins significantly reduced from those believed to l
have been present when the license was issued.
Id.
1 e.
Examples of Amendments that Are Considered Not Likely to Involve Significant Hazards Considerations Are Listed Below The interim final rule listed the following examples of amendments the Comission considered not likely to involve significant hazards considerations. 48 FR, at 14869.
It explained that, unless the specific circumstances of a license amendment request, when measured against the standards in i 50.92, lead to a contrary conclusion then, pursuant to the procedures in 5 50.91, a proposed amendment to an operating license for a facility licensed under 6 50.21(b) or 5 50.22 or for a testing facility will likely be found to involve no significant hazards considerations, if operation of the facility in accordance with the proposed amendment involves only one or more of the following:
(i) A purely administrative change to technical specifications:
for example, a change to achieve consistency throughout the technical specifications, correction of an error, or a change in nomenclature.
(ii) A change that constitutes an additional limitation, restriction, or control not presently included in the technical specifications:
for example, a more stringent surveillance requirement.
(iii) For a nuclear power reactor, a change resulting from a nuclear reactor ccre reloading, if no fuel assemblies significantly different from those found previously acceptable to the NRC for a previous core at the facility in question are involved. This assumes that no significant changes are made to the acceptance crheri for the technical specifica-tions, that the analytical methods used to demonstrate conformance with the technical specifications and regulations are not significantly changed, and that NRC has previously found such methods acceptable.
(iv) A relief granted upon demonstration of acceptable operation from an operating restriction that was imposed because acceptable operation was not yet demonstrated. This assumes that the operating restriction and the criteria to be applied to a request for relief have been established in a prior review and that it is justified in a satisfactory way that the criteria have been met.
(v) Upon satisfactory completion of construction in connection with an operating facility, a relief granted from an operating restriction that was imposed because the construction was not yet completed satis-factorily. This is intended to involve only restrictions where it is justified that construction has been completed satisfactorily.
(vi) A change which either may result in some increase to the probability or consequences of a previously-analyzed accident or may reduce in some way a safety margin, but where the results of the change are clearly within all acceptable criteria with respect to the system or component specified in the Standard Review Plan: for example, a change resulting from the application of a small refinement of a previously used calculational model or design method.
(vii) A change to make a license conform to changes in the regulations, where the license change results in very minor changes to facility operations clearly in keeping with the regulations.
(viii) A change to a license to reflect a minor adjustment in ownership shares among co-owners already shown in the license.
Id.
. II. RESPONSES TO COMMENTS ON INTERIM FINAL RULES The convrents are described in somewhat greater detail in Attachment 3 to SECY-XX. [The SECY number will be inserted before this is sent to the Comission.]
A.
Clarity of Standards 1.1 Coments A group of comenters state that the three standards in 9 50.92(c) are unclear and argue that the examples in the statement of considerations --
which they believe are clearer than the rule -- should be made part of the rule; otherwise, they argue, the examples have no legal significance.
Response
The Comission disagrees with the request. As explained before (see 48 FR 14864) in response to the comments on the proposed rule, the contranters correctly rote that the examples have no binding legal significance. However, they do provide guidance to the staff, licensees and to the general public about the way the standards may be interpreted by the Comission. The Comission did consider combining the standards and examples as a single set of criteria in the interim final rule.
It decided against it because (i) the standards and examples had proved useful over time, (ii) the staff had used all three standards and most of the examples well before they were published in rule form, and (iii) the approach had proved adequate. Upon reconsideration, the Comission has decided to retain them as they were set out in the interim final rule.
i 1.2 Comment One commenter believes that the interim final rules " unduly" and
" improperly" limit freedom of speech and that minor changes in a plant can lead to severe health and safety consequences, such as an anticipated transient without scram (ATWS) as was the case in an incident with the Salem nuclear power plant.
Response
It is unclear how the interim final rule might limit freedom of speech.
It is clear, though, that some changes to a plant involve a review of whether or not previously unevaluated accidents having severe consequences are posed by the amendment request. As explained above, before any amendment is issued, the Connission is required by the Atomic Epergy Act (Act) to find that adequate protection is provided to protect the public health and safety. However, a detennination that an amendment involves "no significant hazards censiderations" includes a finding under the three standards that the change does not involve a significant increase in previously evaluated accidant probabilities or consequences, that it does not present a new type of accident not pre-viously evaluated, and that it does not involve a significant decrease in safety margins. Thus, the concern raised by the comment is related, if at all, only to amendments that involve significant hazards.
Procedures governing these types of amendments are unaffected by this rule change.
See, eg., section 182a. of the Act.
l 1.3 Comment One commenter suggests that the only standard that is needed is one that simply identifies those license amendments which make an accident possible.
Response
The standard suggested by the commenter is simple to state but impractical in practice. An amendment may involve ; previously reviewed issue and not alter the conclusions reached concerning accident probabilities or consequences.
In such a case, the amendment may involve a system or component that is significant to an evaluation of a design basis accident and still not involve a significant hazards consideration. This suggestion shifts the issue from "significant hazards considerations" to an issue concerning whether an amendment would contribute to an accident sequence. The three standards given in the interim final rule together with the examples are directed to the issue of significant hazards.
1.4 Comments One commenter requests that only " credible accident scenarios" should be considered in evaluating amendment requests against the first two standards.
It also suggests that, with respect to the third standard (significant reduction in safety margins), the Commission should initially determine how large the existing safety margin is before deciding whether a reduction is significant, because the extent of the existing margin is clearly relevant to the Comission's detennination.
Another comenter, on the other hand, argues that it is inappropriate to specify a percentage change above which the change becomes significant. It notes that when the safety margin is three orders of magnitude, a ten percent reduction is clearly not signifi-cant, and that when the safety margin is fifteen percent, a comparable percentage reduction may be significant.
It also suggests that the cumulative effects of successive changes to one system must also be considered, and not merely the individual change which is being subjected to review at any given time.
Response
The first coment is similar to the original petition (see Section 1(C)(1) above) which proposed standards limited to " major credible reactor accidents." The Comission disagrees with it -- as it did previously -- because it allows too much room for argument about the meaning of " credible" in various accident scenarios and does not include accidents of a type different from those previously evaluated.
The second commenter suggests that, in assessing the degree of reduction in margin in determining whether an amendment involves significant hazards considerations, the Comission should assess the cumulative effects (on margin) of successive changes to one system, not merely the individual change in margin brought about by the amendment
~ _..
35 -
in question. The Comission believes that such a suggestion would be inconsistent with its staff's long-time practice in assessing the degree of reduction in margin, would be inconsistent with the thrust of the three standards on no significant hazards consideration, and would result in multiple counting of margin changes. The standard states that the Comission is to determine whether the amendment will result in a significant reduction in margin. The intent is to compare the safety margin before the amendment to that which would exist after the amend-ment to determine whether that amendment would significantly reduce the margin. In applying this standard to determine whether a certain amendment involves significant hazards considerations, the intent is to assess just the reduction in margin from that amendment and not to assess all prior reductions in margin that resulted from prior amendments. The Comission will not consider such multiple reductions in margins from prior amendments in detemining whether the amtndment 1
in question significantly reduces a safety margin.
1.5 Comments One comenter points out that the three standards are virtually identical to the criteria in i 50.59 for determining whether unreviewed safety questions exist, and states that this similarity is appropriate.
Another comenter makes the same point but notes an important difference in i 50.59, namely, that the word "significant" is absent in paragraphs (a)(2)(1)to(a)(2)(iii)ofthatsection.
It suggests that i 50.59 should be amended to make it identical with 6 50.92(c).
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Response
Sections 50.59 and 50.92 serve two different purposes. The criteria in 5 50.59(a)(2) are used to decide whether a proposed change, test, or experiment involves an "unreviewed safety question." Section 50.59 is used to decide, in part, whether the licensee of an operating reactor may make changes to it or to the procedures as described in the safety analysis report, or whether it may conduct tests or experiments, not described in the safety analysis report, without prior Comission approval. The licensee may not make a change without such approval, if the change involves an unreviewed safety question. To insert the term "significant" into the criteria would obviously raise the threshold for traking a determination.
It would permit licensees to exercise far greater discretion in judging which changes require Comission review.
Wide variations among licensees might be expected.
If the Comission has not reviewed an issue, it should deliberate and decide whether its review is appropriate. Therefore, the coment has been rejected. The Comission is considering a rule on this subject, as discussed in SectionII(K)below.
1.6 Coment One comenter generally agrees with the rule but believes that the word "significant" should be defined, if only to forestall court challenges by persons disagreeing with NRC.
It suggests that NRC should create some sort of mechanism to resolve disputes between the staff, a State, or other parties, over whether or not an amendment request involves significant hazard considerations.
Response
The advantage of the notice provisions of this rule is that it provides an opportunity for consnent on proposed determinations. Based on a particular proposal in an amendment request, the Comission wel-comes any and all persons' coninents about the " significance" of the proposed action. Aside from using examples as guidelines, it believes that the tenn "significant" should not be defined in the abstract, but should be left to case-by-case resolution.
B.
Clarity of Examples Many commenters argue about the clarity of the various examples in the "likely" and "not likely" categories. Additionally, some want to change, to add to, or to subtract from the examples, for instance, noting that the issue of repairs is problematic. A complete set of comments (as sumarized) is attached to SECY-XX-xx.
Additionally, two commenters argue that the word "significant" in the examples should be defined so as not to leave " critical decisions to the unreviewable judgment of the staff."
Finally, another commenter requests that the guidance embodied in both sets of examples should not only be referenced in the procedures of the office of Nuclear Reactor Regulation, but that it should also be formally transmitted to all licensees in the form of a generic letter, regulatory guide, or other such document.
Response
The Comnission has decided to retain the examples as they are and not to add to or subtract from them, since they are merely guidelines.
, because the present examples are adequate, and because a list of examples of all possible situations could prove interminably long.
The Commission does want to touch on the issue of repairs raised by several commentors.
It believes that if, for instance, a repair or replacement of a major component or system important to safety involves (a), during the course of work, a significant risk of radiological accident with substantial offsite consequences or (b) a substantial change in its design or in any safety limit (or limiting condition of operation) associated with it, then the amendment requesting that repair or replacement should be handled as one involving a significant hazards consideration.
If, on the other hand, a repair does not involve the case just outlined but, instead, involves standard practices and has been successfully carried out many times on similar components elsewhere, it should be handled as one that does not involve signifi-cant hazards considerations.
In this regard, the Comission cautions licensees of older plants that they should consult with the Comission's staff on proposed changes to design features which under paragraph (d)(2) of 6 50.36, " Technical specifications," became part of a licensee's Technical Specifications in accordance with the Commission's requirements in effect before January 16, 1969.
In this context, it once again bears repeating that the examples do not cover all possible examples and may not be representative of all possible concerns and problems. As problems are resolved and as new j
information is developed, the Comission's staff may refine the examples and add new ones, in keeping with the standards in the final rule.
l l
l
.. As to the second set of comments, see the response to comment I(A)(1.6)above. Finally, as noted above, the guidance in the examples i
has been sent to all licensees.
C.
Classification of Decisions Comments Two commenters argue that the standards pose complex questions that
" require a level of analysis that goes for beyond the initial sorting of issues that Congress authorized." They repeat an argument made when the' standards were published as a proposed rule, namely, that "the use of these standards cannot help but require the NRC staff to make an initial determination, well before the formal hearing (if any) is held, of the health and safety merits of the proposed license amendment." And they argue that Congress did not authorize NRC to make such a determina-tion in advance of the hearing on the merits.
(A third commenter agreeswiththisargument).
In sum, these commenters would like to see standards that simply allow for the sorting of issues, rather than, as they argue, standards that allow the staff to determine issues which are
" virtually the same" as those it determines when deciding whether or not to grant the license amendment.
In this same vein, both commenters argue that the standards contravene Congress' intent in that the Commission does not avoid resolving " doubtful or borderline cases with a finding of no significant hazards consideration."
Response
The Comission disagrees with the comenters, and the previous discussions above on this very point explain its reasoning.
It should also be noted that one reason that determinations on significant hazards considerations are divided into " proposed determinations" and
" final determinations" is to help sort the issues initially.
In this process of sorting, the Comission's staff is charged with assuring that doubtful or borderline cases do not end up with a finding of no significant hazards consideration. As explained above, the decision about whether to issue an amendment is based on a separate health and safety detennination, not on a determination about significant hazards considerations.
D.
Rerackings Coments_
A group of commenters state that rerackings should be considered amendments that pose significant hazards considerations, in light of the Comission's past practice and the understanding of Congress that the practice would be continued.
Another group of comenters agree with the Comission's position, including the need for a staff report that would provide the basis for a technical judgment that an amendment request to expand a specific spent fuel pool may or may not pose a significant hazards consideration.
Response
In its dedsion to issue the two interim final rules, the Comission directed the staff to prepare a report which (1) reviews the agency's experience to date with respect to spent fuel pool expansion reviews and (2) provides a technical judgment on the basis for which a spent fuel pool expansion amendment may or may not pose a significant hazards consideration.
The staff contracted with Science Applications, Inc. (SAI) to perform an evaluation of whether increased storage of spent fuel could pose a significant hazards consideration in light of the guidance in the interim final rule. SAI provided a report entitled, " Review and Evaluation of Spent Fuel Pool Expansion Sotential Hazards Considerations." The Report Number is SAI-84-221-WA Rev.1, dated July 29, 1983. On the basis of that report, the staff infonned the Comission of the results of its study and included the SAI report. The staff paper is SECY-83-337, dated August 15, 1983.
(Both the report and the study are available as ir.dicatedabove.)
The staff provided the following views to the Comission.
(1) NRC experience to date with respect to spent fuel pool expansion reviews:
As the Comission noted, the staff has been providing prior notice and opportunity for prior hearing on amendments involving expansion of spent fuel pool storage capactiy. The applications were prenoticed as a matter of discretion because of possible public interest. This was the basis cited for prenoticing these applications in statements to Congressional comittees. Public comments or requests to intervene have been received on 24 of the 96 applications for amendments received to date to increase'.the storage capacity of onsite spent fuel pools. In most cases, the comments and requests to intervene have been resolved without actual hearings before an ASLB [ Atomic Safety and Licensing Board).
Of the 96 applications, 31 have beer e second or third application for the same pool (s). All of these applications have proposed reracking to increase the storage capacity - that is, replacing existing spent fuel storage racks with new racks that permit closer spacing of spent fuel assemblies. Two of the applications involved more than simply replacing the racks on the spent fuel pool floor.
In one case, the capacity was increased by a method referred to as double-tiering.
In this method, a rack is filled with aged spent fuel while sitting on the pool floor; once filled, the rack is raised and placed on top of another filled rack.
Double-tiering was approved by the staff for Point Beach 1 and 2 by amendments issued on March 4, 1979. The other method that has been proposed to increase pool storage capacity is referred to as rod consolidation. Rod consolidation involves dismantling or cutting apart the fuel assembly and putting the individual fuel rods closer together. Storage of only the fuel rods, without the spacers, end caps and other haroware, can increase storage capacity by 60 to 100 percent compared to storage of non-disassembled fuel.
Rod consolidation - in conjunction with reracking - has been requested for only one plant - Maine Yankee. The staff's review of this appli-cation was completed a year ago, but the application is pending before an Atomic Safety and Licensing Board. We have approved 85 amendments involving spent fuel pool storage expansion and the rest are still being processed. A detailed table indicating the agency's experience to date with respect to spent fuel pool expansions is contained in the SAI report. As of now, every operating reactor except Big Rock point has received approval for at least one reracking or had the closer spacing storage method approved with their initial license.
The technical review of requests to increase spent fuel pool storage capacity involves evaluating the physical and mechanical processes which may create potential hazards such as criticality considerations, seismic and mechanical loading, pool cooling, long term corrosion and oxidation of fuel cladding, and probabilities and consequences of various postulated accidents and failures of decayed spent fuel. Also, the neutron poison and rack structural materials must be shown to be compatible with the pool environment for a significant period of time due to the uncertainties as to how long the storage will actually be required on site. However, potential safety hazards associated with spent fuel pool expansions are not as large es those associated with reactor operation because the basic purpose of the expansion is to allow longer term storage of aged spent fuel. Since most plants are now on an 18 month refueling cyle and the NRC is processing a second expansion request application in many instances, the present expansion requests are to allow continued storage of spent fuel that has decayed over a decade along with the normal discharge of relatively new spent fuel for which the pool was originally designed. Typically a PWR will replace about one third of its core at each refueling and a typical BWR will replace about one fourth of its core at each refueling. After a year of storage, about 99% of the initial radioactivity has decayed.
(2) Technical judgement on the basis which a spent fuel pool expansion amendment may or may not pose a significant hazards consideration:
The technical evaluation of whether or not an increased spent fuel pool storage capacity involves potential hazards consideration is centered on the Commission's three standards in the interim final rule.
First, does increasing the spent fuel pool capacity significantly increase the probability or consequences of accidents previously evaluated? As discussed in the SAI report, reracking to allow closer spacing of fuel assemblies does not significantly increase the probability or consequences of accidents previously analyzed.
However, the rod consolidation method may increase the probablity of a fuel drop accident by a factor of two because of the increase in the number of assembly lifts and involves handling of highly radioactive fuel assembly components. Double tiering of racks requires an increased frequency in lifting heavy loads over the spent fuel pool which would also increase the probability of an accident.
Second, does increasing the spent fuel storage capacity create the possibility of a new or different kind of accident from any accident previously analyzed? The staff, as well as SAI, have not identified any new categories or types of accidents as a result of reracking to allow closer spacing for the fuel assemblies. Double tiering and rod consolidation, however, do present new accident scenarios which may not be bounded by previous accident analysis for a given pool.
In all reracking reviews completed to date, all credible accidents postulated have been found to be conservatively bounded by the valuations cited in the safety evaluation reports supporting each amendment.
Third, does increasing the spent fuel pool storage capacity significantly reduce a margin of safety? Neither the staff nor SAI have identified significant reductions in safety margins due to increasing the storage capacity of spent fuel pools. The expansion may result in a minor increase in pool temperatures by a few degrees, but this heat load increase is generally well within the design limitations of the installed cooling systems.
In some cases it may be necessary to increase the heat removal capacity by relatively minor changes in the cooling system, i.e., by increasing a pump capacity. But in all cases, the temperature of the pool will remain below design values. The small increase in the total amount of fission products in the pool is not a significant factor in accident considerations. The increased storage capacity may
1 i
t result in an increase in the pool reactivity as measured by the neutron multiplication factor (Keff). However after extensive study, the staff determined in 1976 that as long as the maximum neutron multiplication factor was less than or equal to 0.95, then any change in the pool reactivity would not significantly reduce a margin of safety regardless of the storage capacity of the pool.
The technicques utilized to calculate Keff have been bench-marked against experimental data and are considered ver.y reliable.
In the interim' final rule, the Cemission stated that it was not the intent to make a no significent hazards consideration finding based on unproven technology. Reracking to allow a closer spacing between fuel assemblies can be done by proven technologies. The double tiering method of expansion can also be done by proven technology. Rod consolidation, however, involves new technology and increased handling of highly radioacive components of fuel assemblies.
In sumary, both rod consolidation and double tiering represent 3
potential safety hazards considerations. Rod consolidation involves relatively new technology and double tiering may significantly increase the probability of accidents previously analyzed. Replacing existing racks with a design which allows closer spacing between stored spent fuel assemblies or placing
-l additional racks of the original design on the pool floor if space pennite (a subset of reracking) is considered not likely to involve siguficant hazards considerations if several conditions i
are met. First, no new technology or unproven technology is utilized in either the construction process or in the analytical techniques necessary to justify the expansion.. Second, the Keff of the pool is maintained less than or equal to 0.95.
A Keff of greater than 0.95 may be justifiable for a particular application but it would go beyond the presently accepted staff criteria and would potentially be a significant hazards consideration. Re-racking to allow closer spacing er the placing of additional racks of the original design on the pool floor, which satisfies the two preceding criteria, would be similar to example (iii) on nuclear reactor core reloading under examples of amendments that are not considered likely to involve significant hazards consid-erations.
The staff concluded in its technical judgement that a request to expand the storage capacity of.a spent fuel pool which satisfies the following is considered not likely to invcive significant hazards considerations:
1
, (1) The storage expansion method consists of either replacing existing racks with a design which allows closer spacing between stored spent fuel assemblies or placing additional racks of the original design on the pool floor if space permits.
(2) The storage expansion method does not involve rod consolidation or double tiering, (3) The Keff of the pool is maintained less than or equal to 0.95, and (4) No new technology or unproven technology is utilized in either the construction process or the analytical techniques necessary to justify the expansion.
i This judgement was based on the staff's review of 96 applications and the result of the SAI study, which indicates that if a spent fuel pool expansion request satisfies the above criteria then it meets the three standards in the interim final rule in that it:
(1) Does not involve a significant increase in the probability or consquences of an accident previously evaluated; or (2) Does not create the possibility of a new or different kind of accident from any accident previously evaluated; or (3) Does not involve a significant reduction in a margin of safety.
Finally, the staff stated to the Comission that:
Applications which do not fall into the above category must be evaluated on a case-by-case basis. There are secondary issues which may be associated with a spent fuel pool expansion, but they must be considered on their own technical merit as a separate issue. As an example, transferring fuel to another site for storage or transferring fuel in a cask to another on-site spent fuel pool, if requested, must both be evaluated on a separate basis as to whether or not they involve significant hazards considerations.
The Comission has accepted its staff's judgment, discussed above, and rerackings will be processed as indicated above.
E.
Irreversible Consequences Convents One comenter notes that license amendments involvo g irreversible consequences (such as those permitting an increase in the amount of effluents or radiation emitted from a facility or allowing a facility to operate for a period of time without full safety protections) require prior hearings so as not to foreclose the public's right to have its views considered. This comenter is especially concerned about the THI-2 clean up and about the THI-1 steam generator tube repairs.
It argues that i 50.92(b) (which requires Comission
" sensitivity" to this issue and which is buffered by the tem "significant")contravenesCongress' intent.
Another comenter requests that a State and the public should have a say about any amendment request involving an environmental impact before NRC issues an amendment. It wants more from the Comission than i
the statement in the rule that the "Comission will be particularly sensitive" to such impacts.
Another comenter requests that the same argument that applies to
" stretch power" situations should apply to situations which involve
" irreversible consequences", such as increase in the amount of effluents or radiation emitted from a facility.
It argues that, if the discharge
, or emission level evaluated in the Safety Analysis Report, the Final Environmental Statement or generically by rulemaking (i.e., Part 50, Appendix I) would equal or exceed the proposed level of emissions, any permanent increase up to that level should not be considered -likely to involve significant hazards considerations, and that any temporary increase within generally recognized radiation protection standards, such as those in 10 CFR Part 20, should be treated similarly. Moreover, it requests that these situations should be included as examples in the "not likely" category.
On the other hand, another comenter argues that license amendments inv01ving temporary waiving of radiation release limitations (so that airborne radioactive waste can be released at a rate in excess of that which is allowed to be released -- as was an issue in the Sholly decision), should involve significant hazards considerations and, consequently, a prior hearing.
Response
The Comission disagrees with the comment that i 50.92(b) contravenes Congress' intent. That section is taken almost verbatim from the Conference Report (see Section I(C)(2)(c) in this preamble) and is entirely consistent with the colloquy of the Senators quoted in that section.
A State and the public can have a say about any amendment request that involves an environmental impact before NRC issues an amendment.
The procedures described before have been set up so that at the time of NRC's proposed determination (1) the State within which the facility is located is consulted, (2) the public can comment on the determination, and (3) an interested party can request a hearing. Section50.92(b) simply buttresses the point that the Comission will be especially sensitive to the types of impacts described by the commenters which involve irreversible consequences.
The Comission has not accepted the last two commenters' suggestions. The legislation clearly specified that the Commission should be sensitive to the kinds of circumstances outlined by the commenters. The interim final rule repeats this language and thus insures that the Comission will evaluate each case with respect to its own intrinsic circumstances.
F.
Emergency Situations 1.1 Comments One comenter requests that the term " emergency" be deleted from the rule because it could be confused with a different ust of this term in a final rule issued on April 1, 1983 (48 FR 13966) involving the applicability of license conditions and technical specifications in an emergency. See il 50.54(x) and 50.72(c). It suggests that the phrase " warranting expedited treatment" or some similar phrase could be used instead of the term " emergency."
\\
__-__ Two other commenters request that 6 50.91(a)(5) (involving emergency situations) be clarified to make clear that an emergency situation can exist whenever it is necessary that a plant not in operation return to operation or that a derated plant operate at a higher level of power generation. One of the comenters argues that unnecessary economic injury or impact on a generating system should also be classified as an emergency situation.
It recommends that650.91(a)(5)beamendedbyinserting,afterthewords "derating or shutdown of the nuclear power plant" the words l
" including any prevention of either resumption of operation or increase in power output." The other commenter concurs with these words and would add the words "up to its licensed power level" after " power output."
Another comenter suggests that an emergency situation should also exist where a shutdown plant could be prevented from starting up because the Comission had failed to act in a timely way.
Several comenters agree with these coments, arguing that emergency situations should (1) be broadly defined, (2) be available when a plant is shutdown and cannot startup without a license amendment,and(3)includesituationswhereanamendmentisneeded (as is the case with exigent circumstances) to improve public health and safety.
(
Response
The Comission understands that the term " emergency" is used in different ways in various sections of its regulations. However, the
_ _ _ _ _ _ _ _ _ _ _ _ _ _ legislation and its legislative history, quoted above in Section I(A),
are very clear on the use of that tenn and specifically do use that term; consequently, the term must be used as a touchstone for the Commission's regulations.
The Comission agrees with the commenters about broadening the definition of " emergency situations." The Conference Report quoted 1
above described " emergency situations" as encompassing those cases in which immediate action is necessary to prevent the shutdown or derating of a plant. Preventing shutdown or derating can be equivalent in terms of impact to the need to startup or to go to a higher power level. The Comission believes that expanding the definition of " emergency situa-l tion" to include these circumstances is consistent with the law.
It therefore has decided to adopt the thrust of these coments and has changed 5 50.91(a)(5) accordingly.
l l
1.2 Coment One commenter requests that the rule specify what is meant by a " timely application" in 5 50.91(a)(5). That paragraph states that licensees should apply for license amendments in a " timely fashion" and that the Comission will decline to dispense with notice and coment procedures, "if it determines that the licensee has failed to make a timely application for the amendment in order to create the emergency and to take advantage of the emergency provision."
)
Response
The provision cited by the commenter is clear enough.
It is extracted almost verbatim from the Conference Report mentioned above.
In it the conferees indicated that they wanted to ensure that a
" licensee should not be able to take advantage of an emergency itself" and that, therefore, the Commission's regulations "should insure that the emergency situation" exception under section 12 of the conference agreement "will not apply if the licensee has failed to apply for the license amendment in a timely fashion."
The Conference Report also explains that:
To prevent abuses of this provision, the conferees expect the Comnission to independently assess the licensee's reasons for failure to file an application sufficiently in advance of the threatened closure or derating of the facility.
1.3 Comment One commentar requests that NRC explain how it will process an amendment request that involves both an emergency situation and a significant hazards consideration.
It suggests that, in this unlikely case, the Commission might issue an immediately effective order under 10 C.F.R. 2.204.
Response
Since there is a possibility for confusion over the meaning of
" emergency", 5 50.91(a)(4) has been modified and a new i 50.91(a)(7)
I l
has been added to clarify the problem. With the Sholly regulations now in place, there are now two possible types of emergencies:
(a) a " safety-related emergency" in which very prompt NRC action may be necessary to protect the public health and safety; and (b) the " emergency" referred to in the Sholly legislation in which the prompt issuance of a license amendment is required in order, for instance, to avoid a shutdown. This type of an emergency may differ from the " safety-related emergency" in that, here, prompt action is needed for continued full-power operation but not necessarily to protect the public health and safety (health and safety, arguably, is protected by the shutdown, which would occur if the " emergency" license amendment were not issued). This
" emergency" is more in the nature of an economic emergency for the licensee.
Two fundamentally different approaches to amending a license arise from these two different types of emergencies:
(a) For a safety-related emergency, the Administrative Procedure Act and the Commission's own regulations (10 CFR l 2.204) authorize (if not compel) the issuance of an immediately effective order amending c license without regard to whether the amendment involves signi15 cant hazards considerations and without the need to make a finding on no significant hazards considerations or to provide a prior Sholly-type of notice.
(b) For an " emergency" where a prompt amendment is required to prevent the shutdown but not to protect the public health and safety, an immediately effective license amendment, without prior notice, may
t be issued only if the emendment involves no significant hazards considerations.
Consequently:
(a) Where an immediately effective license amendment is needed to protect the public health and safety, the Comission can issue an imediately effective order amending a license without regard to whether the amendment involves significant hazards considerations and without regard to prior notice and prior hearing; (b) Where an imediately effective license amendment is needed, for instance, only to prevent the shutdown but not to protect public health and safety, the Comission may it iue such an immediately effective amendment only if the amendment involves no significant hazards considerations.
If the amendment does involve a signifi-cant hazards consideration, the Comission is required by law to provide notice and an opportunity for prior hearing.
i G.
Exigent Circumstances 1.1 Comments One comenter suggests that the two examples of exigent circum-stances are unnecessarily narrow because both involve potentially iost opportunities to implement improvements in safety during a plant outage. The comenter recommends that the Comission make clear that these examples were not meant to be limiting and that exigent circum-stances can occur whenever a proposed amendment involves no significant hazards consideration and the licensee can demonstrate that avoiding
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..,._.c delay in issuance will provide a significant safety, environmental, reliability, economic, or other benefit.
Another commenter requests that exigent circumstances include situations (1)wherealicensee'splantisshutdownandthelicensee needsanamendmenttostartupand(2)involvingsignificanthazards
~
considerations. The commenter argues that both such situations entail delay and a significant financial burden on licensees.
Response
As explained above, the examples were meant merely as guidance and were meant to cover circumstances such as that where a net safety benefit might be lost if an amendment were not issued in a timely manner. The Comission in part agrees with the first comenter that the examples should be read as also covering those circumstances were there a net increase in safety or reliability or a significant environmental benefit.
As to the second comment, the Comission believes that " emergency situations" and " exigent circumstances" may blend into each other and that it is not always easy to classify a case as one or the other.
Therefore, in keeping with the thrust of the definition of " emergency situation," it will now consider the " exigent circumstances" in 5 50.91(a)(6) to include " start-up" and " increase in power levels."
1.2 Coments One comenter states that the public notice procedures for exigent circumstances should be no different from those for emergency situations.
9e rTwv1r-WNW9M'twF-'W v m V v' 9
- - Two comenters oppose the use of press releases or display advertising in local media, arguing that such notices would unnecessarily elevate the importance of amendment requests.
i Another commenter recomends that, if NRC believes that it must issue a press release, it should consult with the licensee on a proposed release before it acts.
It also requests that NRC inform the licensee of the State's and the public's coments and that it promptly forward to the licensee copies of all correspondence.
Two comenters also oppose the toll-free " hot-line" in exigent circumstances, arguing that the concept implies iminent danger or severe safety concerns which nonnally will not be present. One of these commenters requests, instead, the use of mailgrams or overnight express.
It also recommends, if a hotline system is implemented, that the system should be confined to extraordinary amendments involving unique circum-stances. To ensure the accuracy of transcription of the comments received, it suggests that the comments should be recorded and retained to ensure that a verbatim transcript could be produced if needed. The other cc enenter requests that copies of the recorded coments should be i
sent to the licensee.
Another commenter suggests that the rule specify the geographical area to be covered by a notice to the media.
Response
In emergency situations NRC does not have time to issue a notice.
In exigent circumstances, the Comission has to act swiftly but h'as
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ time to issue some type of a media notice; in most instances it will be a FEDERAL REGISTER notice requesting public coment within less than 30 days, but not less than two weeks. The Comission, of course, needs the cooperation of a licensee to make the system work and to act quickly.
If NRC is put in a situation where it cannot issue a FEDERAL REGISTER notice for at least two weeks public coment, then, with the help of the licensee, it will issue some type of a media notice requesting public comment within a reasonable time.
It will consult with the licensee on 1
a proposed release and the geographical area of its coverage and will infom it of the State's and the public's coments.
If a system of mailgrams or overnight express is workable, it will use that as opposed l
to a hotline; however, it will not rule out the use of a hotline. And i
if it does use a hotline, it may tape the conversations and prepare a transcript, as necessary.
1.3 Coment l
One comenter notes that exigent circumstances can arise after the 1
publication of a Comission notice offering a nomal public coment period on a proposed determination. It requests that in these circum-stances the rule should make clear that an expedited schedule would be established for receiving public coments and issuing the amendment.
Response
The Comission agrees that emergency situations and exigent circumstances could arise during the nomal coment period.
If this were to occur, it will expedite, to the extent it can, the processing of
.the amendment request, if and only if the request and the exigency or emergency are connected. As explained above, the Commission may also, of course, issue an appropriate order under 10 C.F.R. Part 2, if there is an imminent danger to the public health or safety.
H.
Retroactivity Comments One commenter requests (and another would agree) that 9 2.105(a)(4)(i) -- which explains how NRC may make an amendment 4
immediately effective -- be clarified to make clear that NRC will not-provide notices of proposed action on amendment requests it received before May 6,1983 (the effective date of the interiam final rule) that do not involve significant hazards considerations.
It suggests that the Commission should publish instead notices of issuance of amendments pursuant to i 2.106.
Another commenter suggests expedited treatment for amendment requests received before May 6, 1983, when these relate to refueling outages scheduled by licensees before that date.
Response
The Commission will continue to notice any amendment request it received before May 6, 1983, as to which it makes a proposed determination after that date. Where necessary, it will expedite its internal processing of such an amendment request.
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Notice and Consultation Procedures 1.1 Comments One comenter proposes the following changes (endorsed by another commenter) to the notice procedures to shorten the coment period and to clarify the method of publication:
Routine, minor amendments should be published in the monthly Federal Register compilation only and a ten-day coment period accorded. There should be no individual Federal Register notice in routine cases. An individual notice should be published in the Federal Register for requests that are not routine, such as for instance, steam generator modifications or reracking. These requests could also be published in the monthly compilation, but the coment period should run from the date of the individual notice. As is the' case for routine amendments, we propose a ten-day coment period.
In exigent circumstances, which could encompass either routine or non-routine requests, we propose that notice be published individually in the Federal Register and that a reasonable coment period be accorded taking into account the facts of the particular case.
The comenter argues that expedited notice procecures would satisfy the statutory requirements, would eliminate a large source of delay, and would be recognized by the courts, since expedited procedures are the appropriate solution when notice and hearing are statutorily required but time is of the essence.
Two comenters are also concerned about the potential for delay in the new notice procedures. One of these requests that the rule indicate the nomal time NRC needs to process routine and emergency applications.
Response
The Comission left itself the options in the interim final rule to publish individual or monthly FEDERAL REGISTER notices, or a
_ ~ _ _ __
p, combination of both. Though it agrees that minor routine amendments could be published in its monthly notice and that non-routine amendments could be published in individual notices, it does not want to establish by rule any particular mode of publication.
The Comission does not agree that a 10-day comment period should be the norm.
It believes that its system, which normally allows for 30-days public comment, is more in keeping with the intent of the legislation, which provided for a reasonable opportunity for public j
comment, except in emergency situations where there is no time provided for public comment and in exigent circumstances where there is less than 30-days provided.
Section 50.91(a)(6) has been clarified to indicate that the coment period on any notice runs from the date of that notice.
If there is an initial individual notice and a later monthly notice, the comment period
[
begins with the first notice.
Finally, the Commission does not' agree that it should prescribe its normal time for processing routine and emergency requests.
Its staff will process all requests as quickly as it can. The Comission's staff 4
has been directed to handle requests promptly and efficiently to insure that the staff is not the cause for a licensee's emergency or exigency request.
1.2 Coments One commenter argues that the consultation procedures created by the interim final rule do not meet Congress' intent because they leave i
l
_ _., _ _ -. _... - _ _ - - _ _ _. _ _, _ _ _. _. _ - _. _,... _ _. - ~.. _ _ _. _.. _ _ _ _. _. _ _. _. _ _., _
- it up to a State to decide whether it wants to consult based on the licensee's amendment request and NRC's proposed determination.
It seeks
" formal, active consultation" (before NRC makes its proposed determina-tion and publishes a FEDERAL REGISTER notice) through the " scheduling of formal discussions between the State and the NRC on the proposed determination, with the foregoing of such only upon written waiver of the State." Additionally, it seeks incorporation of the State's comments in the FEDERAL REGISTER notice together with an explanation of 4
how NRC resolved these. Finally, it requests that NRC always telephone State officials before issuing an amendment, rather than merely
" attempting" to telephone them as, it states, the rule provides.
Another commenter is satisfied with the notice and consultation procedures, stating that "the regulations give the State no more authority in regulating the operation of the reactor then it had in the past, but they serve notice on the reactor operator that the State is an interested party in all nuclear operations within the State."
Response
The Commission believes that its State consultation procedures are well within Congress' intent. These procedures allow a State to take on as active a role as it wishes.
If it wants to consult with NRC on every amendment request, it may do so. On the other hand, if it wants to conserve its resources and consult only on amendment requests it considers important, it may do that as well. The system of formal consultation envisaged by the first commenter is contrary to the intent ofCongress,asdiscussedinSectionIII(B)below.
l
. _... _.. _. _. -.. _... ~..., _
=
-, Finally, t 50.91(b)(3) of the interim final rule clearly states that before NRC issues the amendment, it will telephone the appointed State official in which the licensee's facility is located for the purpose of consultation. The Commission believes that this last step is needed to ensure that the State indeed is aware of the amendment request and does not wish to be consulted about it. The rule ha, been changed in minor ways to clarify these points.
J.
Notices in Emergency Situations or Exigent Circumstances Coment One commenter recommends that the Comission clarify that it intends to issue a " post notice" under i 2.106 rather than a " prior notice" under i 2.105 when it has determined that there is an emergency situation or exigent circumstances and that an amendment involves no significant hazards consideration. The commenter suggests that, in i 2.105(a)(4)(ii) the words "it will provide notice of opportunity for a hearing pursuant to i 2.106" should be deleted and the words "instead of publishing a notice of proposed action pursuant to this section, it will publish a notice of issuance pursuant to i 2.106" should be substituted.
Response
The Comission has not accepted the latter part of the commenter's request.
In an emergency involving no significant hazards consideration, the Comission will publish a notice of issuance of the amendment under 1
6 2.106. The licensee or any other person with the requisite interest may request a hearing pursuant to this notice. Thus, implicit in 6 2.106 is the notion that a notice of issuance provides notice of opportunity for a hearing. The words in 6 2.105 make this notion explicit.
- Finally, contrary to the comenter's assertion, the Comission does provide prior J
rather than post notice in exigent circumstances.
K.
Procedures to Reduce the Number of Amendments Coment One comenter suggests that many of the routine matters which require amendments shcald not be subject to the license amendment process.
It argues that greater use should be made of 6 50.59 (involving changes, tests and experiments without prior Comission approval, where these do not involve an unreviewed safety question or a technical specification incorporated in a license) for changes involving routine matters by not placing such changes into the technical specifications and thereby avoiding the need to issue license amend-ments. Two comenters also generally endorse the Comission's proposed rule (publishedonMarch 30,1982 in 47 FR 13369) that would reduce the volume of technical specifications now part of an operating license, thereby reducing the need to request license amendments.
Response
The NRC staff is presently working on a final version of the proposed rule noted above. The proposed rule would introduce a two-tier 4
system of license specifications: technical specifications and supplemental specifications. Only the former would be made directly a part of the operating license and would require prior NRC approval and an amendment; supplemental specifications would be made a condition of the license, as is the Final Safety Analysis Report, but could be changed by the licensee within certain bounds and under prescribed conditions using a process similar to changes made under i 50.59.
L.
License Fees Comment One conenenter argues that licensees should not be assessed additional fees to finance activities involving determinations about no significant hazards considerations.
It states that in a recent proposed rule (47 FR 52454, November 22,1982) NRC proposed to amend the existing regulations governing payment of fees associated with, among other things, the processing of license amendment requests.
(The final rule was pi. 11shed on May 21,1984in49FR21293.) The key element of the proposed ct.inges related to assessment of fees based upon actual NRC resources expended, rather than upon fixed fee for various classes of amendments. The connenter goes on to note that, if the Part 170 changes are issued as proposed, after May 6,1983--the effective date of the interim final rules--NRC resources expended as part of the notice and State consultation process would be financed by the requesting licensee.
It states that licensees would not be the identifiable recipients of benefits resulting from this more involved process; as such, licensees should not be assessed fees for any expenses resulting from the public
~
notice, State consultation, and other consequential or follow-up activi-ties which may result. And it argues that the legislative history behind Public Law 97-415 makes it clear that licensees are not the prime beneficiaries of this new license amendment process.
Response
The Commission believes that licensees do benefit from the two interim final rules and will benefit from this final rule. At a minimum, their license amendment requests will be granted norrelly before a hearing is held, if a final determination of no significant hazards consideration has been made and a hearing is requested. This clearly eliminates risk and delay. More importantly, the public's and the State's roles in the amendment process are clarified, which indirectly but identifiably benefits licensees.
M.
Regionalization Comment One commenter recommends that, before NRC's headquarters transfers authority to the Regions to process " routine" amendments, a clear understanding be reached among the licensee, the Region and NRC's headquarters about the ground rules for what would constitute " routine" versus " complex" amendments and for the ways the amendments would be processed from the times they are requested, through notice and State consultation, to their grant or denial.
_ Response The Comission agrees. For the time being, though, and perhaps in the future, NRC's headquarters will retain authority to process all amendment requests with respect to determinations about no significant hazards considerations. See, generally, NRC Authorization Act for FiscalYears1984and1985(Pub.L.98-553, October 1984).
M.
Exemption Requests Coment One commenter is concerned that NRC might automatically consider exemption requests as license amendments.
It believes that exemption requests need not automatically be considered license amendments, even though NRC has occasionally elected to notice such requests in the FEDERAL REGISTER or has assigned license amendment numbers to the j
issuing documents.
Response
The Comission does not automatically consider exemption requests as license amendments. Most are not amendr ent.a.
If an exemption to the regulations for a particular facility also entails us equires an amendment to the facility license, the amendment would be processed as a license amendment under the Sho11y regulations and the requirements of the regulations could not be avoided simply because an exemption 1
is also involved.
1 4
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l III. PRESENT PRACTICE, AND MODIFICATIONS UNDER THE FINAL RULE A.
Notice for Public Coment and for Opportunity for a Hearing In the two interim final rules, the Commission decided to adopt the notice procedures and criteria contemplated by the legislation with respect to determinations about no significant hazards consideration.
In addition it decided to combine the notices for public comment on no significant hazards considerations with the notices for opportunity for a hearing, thereby, normally providing both prior notice of opportunity for a hearing and prior notice for public comment of requests it receives to amend operating licenses of facilities described in 5 50.21(b) or i 50.22 or of testing facilities.
The Comission intends to continue this practice, as fully described below.
With respect to opportunity for a hearing, the Comission amended i 2.105 to specify that it could nomally issue in the FEDERAL REGISTER at least monthly a list of " notices of proposed actions" on requests for amendments to operating licenses. These monthly notices now provide an opportunity to request a hear-ing within thirty days. The Commission also retained the option of issuing individual notices, as it sees fit.
In the final rule, the Comission clari-fied i 2.105(d)(2) to make clear that a person whose interest may be affected by the proceeding may not only file a petition for leave to intervene, but may also request a hearing.
If the Comission does not receive any request for a hearing on an amendment within the notice period, it takes the proposed action when it has completed its review and made the necessary findings. If it receives such a request, it acts under new i 50.91, which describes the procedures and criteria the Comission uses to act on applications for amend-ments to operating licenses involving no significant hazards considerations.
i To implement the main theme of the legislation, under new i 50.91 the Comission has combined a notice of opportunity for a hearing with a notice for public comment on any proposed determination on no significant hazards consideration. Additionally, new i 50.91 permits the Comission to make an amendment imediately effective in advance of the holding and completion of any required hearing where it has determined that no significant hazards con-sideration is involved. Thus, 9 50.91 builds upon amended i 2.105, providing details for the system of FEDERAL REGISTER notices. For instance, exceptions are made for emergency situations, where no prior notices (for opportunity for a hearing and for public comment) might be issued, assuming no significant hazards considerations are involved.
In sum, this system added a " notice for public coment" under 6 50.91 to the fonner system of " notice of proposed action" under 6 2.105 and " notice of issuance" under 6 2.106.
Under this new system, the Comission requires an applicant requesting an amendment to its operating license (1) to provide its careful appraisal on the issue of significant hazards, using the standards in 5 50.92 (and whatever examples are applicable), and (2) if it involves the emergency or exigency provisions, to address the features on which the Comission must make its findings.
(Both points will be discussed later.) The Comission wants a
" reasoned analysis" from an applicant, and has made this clear in the final rule. An insufficient or sloppy appraisal will be returned to the applicant with a request to do a more careful analysis. Where an application has been returned for such reasons, the applicant cannot use the exigency or emergency provisions of the rule for any subsequent application for the same amendment.
When the Comission receives the amendment request, as described below, it first decides whether there is an emergency situation or exigent circumstances.
If there is no emergency, it then makes a preliminary decision, called a
" proposed detennination," about whether the amendment involves no significant hazards considerations -- nonna11y, this is done before completion of the safety analysis (also called safety evaluation).
In this determination, it i
might accept the applicant's appraisal in whole or in part or it might reject the applicant's appraisal but, nonetheless, reach the same conclusion. The Consnission views the tenn " considerations" in the dictionary sense, that is, as a sorting of factors as to which it has to make a determination.
In this I
sorting, the three standards are used as benchmarks and, if applicable, the examples may be used as guidelines.
Amendment requests that were received before May 6,1983 (the effective date of the interim final rules), are processed in the same way, except that i
licensees have not been required to provide their appraisals.
At this stage, if the Comission decides that no significant hazards consideration is involved, it can issue an individual FEDERAL REGISTER
[
notice or list this amendment in its monthly publication in the FEDERAL l
j REGISTER. This monthly publication lists not only amendment requests received for which the Commission is publishing notice under i 2.105, it 4
also provides a reasonable opportunity for public coment by listing this and all amendment requests received since the last such monthly notice, and, likeanindividualnotice,(a)providingabriefdescriptionofthea~mendment 3
l 4
and of the facility involved, (b) noting the proposed no significant hazards consideration determination, (c) soliciting public comment on the determin-ations which have not been previously noticed, and (d) providing Yo'r a 30-day I
comment period. The final rule clarifies at i 50.91(a)(2) that, if an indi-vidual notice has been published, the monthly publication does not extend the deadline date for filing coments or providing an opportunity for a hearing.
Between May 6, 1983 and September 28,1984,/ the Comission published FEDERAL REGISTER notices (FRN) on determinations about no significant hazards consid-erations (NSHC) as follows:
(1) Two " press release" type of notices were issued during this period.
(2) Southern California Edison Company's application for an amendment, dated July 23,1984 (San Onofre Nuclear Generating Station, Unit 1) was received to modify the Technical Specification on limiting conditions for operation for snubbers in order to delete the tabular listings of snubbers and to specify instead that all snubbers are required to be operable except for those installed on non safety-related systems whose failure or failure of the system on which they are installed would have no adverse effect on any safety-related system. Snubber modifications were conducted and were completed just before hot functional testing in mid-August 1984.
The request to revise the explicit lists therefore could not have been processed earlier.
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NRR will provide update before this is sent to the Comission.
(3) Comonwealth Edison Company's application for an amendment, dated August 2, 1984 (LaSalle County Station, Unit 2), was received to vacate Amendment No. 3 and to reinstate License Condition 2.C(7), requiring installation of instru-mentation that would automatically shut down the reactor (in the startup and refueling modes only) in the event of low control rod drive pump discharge pressure. The licensee requested an exigent circumstances amendment, citing the fact that, on July 30, 1984, while testing the modification, spurious scrams occurred, indicating problems with the existing trip setpoints.
(4) One paid public announcement was issued during this reporting period.
Georgia Power Company filed an application for an amendment, dated August 27, 1984 (for the Edwin I. Hatch Nuclear Plant, Unit No. 2), to change the overcurrent trip setpoints for four circuit breakers listed in Technical Specification Table 3.8.2.6-1, " Primary Containment Penetration Conductor Overcurrent Protective Devices." The licensee requested an exigent circumstances amendment because of its late recog-nition that the Technical Specification change was necessary in order to provide the new overcurrent trip setpoints. The staff issued a proposed determination that, though the plant could be started up and operated without this change, extended operation without it was undesirable because it requires deenergizing the main steamline drain valve motor.
(5) Out of a total of 952 notices of no significant hazards considerations, the Comission received 11 requests for hearings. Out of a total of 20 notices of significant hazards considerations, the Comission received 2requestsforhearings.O
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NRR will update.
"SHOLLY" STATISTICS Individual FRN Individual FRN Total Monthly FRN May 6, 1983 - Sept. 28, 1984 Proposed NSHC Proposed NSHC SHC NUMBER 1242 241 25 1508 Period ft r public conument:
30 days 1242 227 25 1494 l
Less than 30 days:
Short FRM 14 14 Press release 8
2 Grand Gulf 8 TMI-1 Public conenents received 1 Oyster Creek 1 Susquehanna 0
131/
1 WNP-1 2 Grand Gulf 2 TM1-1; 2 Trojan 1 Pilgrim Requests for hearing 1 Salem-1; 2 Zion 1/2 162f 6 Turkey Pt. 3/4 Amendments Issued - Total....................................................................
807 (1) with 30 days notice 760 (2) less than 30 days or no notice.........................................................
39 8_/
3 (3) Hearing requested but final NSHC detennination made (50.91(a)(4)........................
l Backlog:
(applications received which have not been noticed, either in monthly FRN or individually through September 28, 1984
): NUMBER 283 (Includes items which have been prepared and approved for publication in October, monthly items which are in concurrence chain, and items for which additional information is needed from the licensee.)
FOOTNOTES: See Pages 72 and 73.
i.
1-4 4
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}
FOOTNOTES FOR "SH0LLY" STATISTICS i
y Comments
]
Grand Gulf
- 2 comments were received, one from the State and one from a member of the public.
}
TMI-1
- 7 coments were received as result of initial noticing j
action; i
1 additional coment was received as a result of Notice of i
Additional Opportunity, published on August 25, 1983.
l Susquehanna
- I comment was received from a member of the public.
4 j.
Oyster Creek
- I coment was received from the State.
.WNP-2
- 1 comment was received from a member of the public.
I y
Requests for hearing TMI Steam generator repair - 2 requests for hearing were received. A prehearing conference was held. By a Memorandum and Order, dated
^
June 1, 1984, the Board dismissed 9 of 11 contentions. The hearing was j
concluded on July 18, 1984. The Staff's proposed findings were submitted on August 20,1984 The Board is expected to issue an Initial Decision this fall. l l
Salem Integrated leak rate - 1 request for hearing received from the State of Delaware. On January 20, 1984, the State filed a motion to 1
withdraw, which was granted by the Board on January 25, 1984.
i l
Turkey Pt. 3/4 - (a) Proposed operational limits for current and future f
reloads - 2 requests for hearing (2 units) were received. A prehearing i
conference was held on February 28, 1984. Discovery is in process.
i (b) Spent Fuel Storage Expansion - 2 requests for hearing (2 units) f were received.
(c) - Enriched fuel storage - 2 requests for hearing (2 units) were received. Nuclear Responsibility Inc. and Joette Lorian are the petitioners in all three issues.
Pilgrim - Single loop operation - 1 request for hearing was received. The proceeding was dismissed on January 26, 1984, based on settlement.
Grand Gulf - Amendment No. 10 redefined HPCS operation and resulted in a i
calculated increase in peak clad temperature. One hearing request was received. A prehearing conference was held on February 29,1984. The j
Board issued its decision on April 23, 1984, admitting two contentions for discovery. On September 24, 1984, the Board issued a Memorandum and Order Terminating Proceeding.
I i
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NRR and Christenbury will update.
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Trojan - Spent fuel pool expansion - 2 requests for hearing,1 from the State and 1 from Coalition for Safe Power, were received. Both were admitted as parties to the proceeding. A prehearing conference was held. Two contentions were accepted. Coalition has withdrawn (vom the proceeding. The hearing was scheduled for October 10/11,1984.>
Zion 1/2 - Containment leak testing - 2 requests for hearing (2 units), from Citizens Against Nuclear Power were received. The licensee subsequently withdrew its application.
3/
Amendments Issued, Item (3)
TMI-1 hot testing, 1 amendment Salem 1 integrated leak testing, I amendment Turkey Pt. 3/4 operational limits for current / future reloads, 2 amendments TNI-1 hot functional testing of SG, 1 amendment Trojan spent fuel pool, 1 amendment Turkey Pt. 3/4 SFP storage expansion - 2 amendments
- j NRR and Christenbury will update.
l While it is awaiting public coment, the Comission proceeds with the safety analysis.
In this context, the Comission explained in the interim final rules that, though the substance of the public coments could be t
i litigated in a hearing, when one is held, neither it nor its Licensing Boards or Presiding Officers would entertain hearing requests on its i
substantive actions with respect to these coments.
It noted that this is in keeping with the legislation which states that public coment cannot l
delay the effective date of an amendment. The Comission has instructed the staff to ensure that amendment requests are processed efficiently, and Licensing Boards and Presiding Officers are authorized to determine whether-the staff has adhered to the Comission's procedures.
After the public comment period, the Comission reviews the comments, if any, considers the safety analysis, and reaches its final decision on the amend-ment request.
If it decides that no significant hazards consideration is 4
involved, it publishes an individual " notice of issuance" under i 2.106 cr it publishes the notice of issuance in its system of monthly FEDERAL REGISTER i
notices, and thus closes the public record. As the Comission explained with respect to the interim final rules, it does not normally make and pub-lish a " final detemination" on no significant hazards consideration, because such a detemination is needed only if a hearing request is received and if it decides to make the amendment iramediately effective and to provide a hearing after issuance rather than before.
In this regard, the staff need not respond to coments if a hearing has not been requested.
i 4
If it receives a hearing request during the comment period and the Comission i
has decided that no significant hazards consideration is involved, it prepares i
l I
~ -
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1 i
a " final determination" on that issue which considers the request and the r
public comments, wakes the necessary safety and public health findings, and proceeds to issue the amendment. The hearing request is treated the same way as in previous Commission practice, that is, by providing any requisite hearing after the amendment has been issued. As explained before, the legislation pemits the Connission to make an amendment immediately effective, notwithstanding the pendency before it of a request for a hearing from any person (even one that meets the provisions for intervention in i 2.714), in advance of the holding and completion of any required hearing, where it has determined that no significant hazards consideration is involved. Any question about the staff's substantive determinations on the issue of sig-nificant versus no significant hazards consideration that may be raised in j
any hearing on the amendment does not stay the effective date of the amendment.
4 The procedures just described have been the usual way of handling license j
amendments under the interim final rules because most of these amendments do l
not involve emergency or exigent situations and do not entail a determination that a significant hazards consideration is involved. The Commission has i
retained these procedures. As discussed below, these three situations and i
j other unusual ones could arise though.
i Returning to the initial receipt of an application, if the Commis: ion were to receive an amendment request and then determine that a significant hazards consideration is involved, it would handle this request by issuing an indi-vidual notice of proposed action providing an opport.nity for a prior hearing i
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t under i 2.105, and, as appropriate, notifying the public of the final disposition of the amendment by noting its issuance or denial in the monthly FEDERAL REGISTER notice instead of in an individual notice. This case has not arisen. As explained above, even if the amendment request were to involve an emergency situation and if it were determined that a significant hazards consideration were involved, then the Comission would be required to issue a notice providing an opportunity for a prior hearing.
If the Comission were to determine, however, that the public health or safety were in iminent danger, it could issue an appropriate order under 10 C.F.R. Part 2, as explained previously and as also discussed below.
Another unusual situation may arise: the Comission may receive, for instance, an amendment request and find an emergency situation, where failure to act in a timely way would result in derating or shutdown of a nuclear power plant.
In this case, also discussed later in connection with State consultation, it may proceed to issue the license amendment, if it deter-mines, among other things, that no significant hazards consideration is involved.
In this circumstance, the Comission might not necessarily be able to provide for prior notice for opportunity for a hearing or for prior notice for public coment and might therefore publish an individual notice of issuance under 6 2.106 (which provides an opportunity for a hearing after the amendment is issued.) As noted in the chart above, xxU of these situa-x tions have occurred. Additionally, the Comission's monthly FEDERAL REGISTER
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NRR please update.
- notice system notes its action on the amendment request and, thereby, pro-vides an opportunity for later public coment. The Comission stated with respect to the interim final rules, in connection with emergency requests, that it expects its licensees to apply for license amendments in a timely fashion.
It explained that it will decline to dispense with notice and coment on the no significant hazards consideration determination, if it determines that the applicant has failed to make a timely application for the amendment in order to create the emergency and to take advantage of the emer-gency provision. Whenever an emergency situation is involved, the Comission expects the applicant to explain to it why it has occurred and why the appli-cant could not avoid it; the Comission will assess the applicant's reasons for failure to file an application sufficiently in advance of that event.
An emergency situation might also occur during the normal 30-day comment period. Depending upon the type of emergency (safety-related versus emergency situation in the Sholly sense -- see Section II(F)(1.1) above),
the Comission would act under the system described above.
Another unusual situation might be that the Comission receives an amendment request and finds an exigent circumstance, that is, a situation other than an emergency where swift action is necessary. The legislation, quoted above, states that the Commission should establish criteria which "take into account I
the exigency of the need for the amendment." The Conference Report, quoted above, points out that "the conference agreement preserves for the Comission substantial flexibility to tailor the notice and comment procedures to the exigency of the need for the license amendment" and that "the conferees expect
the content, placement, and timing of the notice to be reasonably calculated
{
to allow residents of the area surrounding the facility an adequate opportunity I
to formulate and submit reasoned comments."
In the interim final rules, the Commission stated its belief that extraordinary situations may arise, short of an emergency, where a licensee and the Commission I
must act quickly and where time does not permit the Commission to publish a FEDERAL REGISTER notice soliciting public comment or to provide 30 days ordinarily allowed fur public comment. As noted in the response to public comments on the two interim final rules, the Connission gave as examples two circumstances involving a net benefit to safety.
(See additional examples at II(G)(1.1).) One circumstance might occur if a licensee with a reactor shut-down for a short time wishes to add some component clearly more reliable than one presently installed; another might occur when the licensee wishes to use a different method of testing some system and that method is clearly better i
than one provided for in its technical specifications.
In either cese, the licensee may have to request an amendment, and, if the Commission determines, among other things, that no significant hazards consideration is involved, it may wish to grant the request before the licensee starts the plant up and the opportunity to improve the plant is lost.
The Commission noted in the interim final rules that in circums,tances such as the two just described, it may use media other than the FEDERAL REGISTER, for example, a local newspaper published near the licensee's facility, widely read by the residents in the area surrounding the facility, to inform the public of
__ the licensee's amendment request.
It stated that in these instances, the Comission will provide the public a reasonable opportunity to coment on the proposed no significant hazards determination.
It also stated that, to ensure that the comments are received on time, it may also set up in such a situation a toll-free hotline, allowing the public to telephone their coments to NRC on the amendment request.
This method of prior notice for public coment is in addition to any individual notice of hearing that may be published; it does not affect the time available to exercise one's opportunity to request a hearing, though it may provide that opportunity only after the amendment has been issued, l
when the Commission has detemined that no significant hazards consideration is involved. As noted in the chart above, xx of these situations have occurred.Y The Comission has modified slightly the procedure discussed above.
In emergency situations NRC does not have time to issue a notice.
In exigent circumstances, the Comission has to act swiftly but has some time to issue a notice; in most instances it will be a FEDERAL REGISTER notice requesting public comment within less than 30 days, but no less than two weeks. The Commission, of course, needs the cooperation of a licensee to make the system t
work and to act quickly.
If NRC is put in a situation where it cannot issue a FEDERAL REGISTER notice for at least two weeks public coment, then it will I
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NRR please update.
issue a media notice.
It will consult with the licensee on a proposed release and the geographical area of its coverage and will inform it of the State's and the public's comments.
If a system of mailgrams or overnight express is workabic, it will use that as opposed to a hotline; however, it will not rule out the use of a hotline.
If it does use a hotline, it may tape the conversations and may transcribe them, as necessary, and may send them to licensees,.
As with its provisions on emergency situations, the Comission explained in the interim final rules that it would use these procedures sparingly and that it wants to make sure that its licensees will not take advantage of these procedures.
It stated that it will use criteria, somewhat similar to the ones it uses with respect to emergency situations, to decide whether it will shorten the comment period and change the type of notice nomally provided.
It also stated in connection with requests indicating exigent circumstances that it expects its licensees to apply for license amendments in a timely fashion.
It will not change its normal notice and public coment practices where it determines that the licensee has failed to use its best efforts to make a timely application for the amendment in order to create the exigency and to take advantage of the exigency provision. Whenever a licensee wants to use this provision, it has to explain to the Comission the reason for the exigency and why the licensee cannot avoid it; the Commission will assess the licensee's reasons for failure to file an application sufficiently in advance of its proposed action or for its inability to take the action at some later time.
The Comission could also receive an amendment request with respect to which it finds that it is in the public interest to offer an opportunity for a prior hearing.
In this case, it would use its present individual notice procedure to allow for hearing requests. Whether or not a hearing is held, it would notify the public about the final disposition of the amendment in a notice of issuance or denial in its monthly FEDERAL REGISTER notice.
It should also be re-emphasized that these procedures nonna11y only apply to license applications. The Comission may, under existing $9 2.202(f) and 2.204, make a determination that the public health, safety, or interest requires it to order the licensee to act without prior notice for public comment or opportunity for a hearing.
In this case, the Comission would follow its present procedure and publish an individual notice of issuance in the FEDERAL REGISTER and provide for an opportunity for a hearing on the order.
The new system has changed only the Comission's noticing practices; it has not altered its hearing practices. The Comission explained in the two interim final rules that it has attempted to provide noticing procedures that are administrative 1y simple, involve the least cost, do not entail undue delay, and allow a reasonable opportunity for public coment; nevertheless, it is clear that they are quite burdensome and involve significant resource impacts and timing delays for the Comission and for licensees requesting amendments. Licensees can reduce these delays under the procedures by pro-viding to the Comission their timely and carefully-prepared appraisals on
. the issue of significant hazards, and the staff can further reduce delay by processing requests expeditiously.
Finally, with respect to amendment requests received before May 6, 1983 (when the interim final rules became effective), on which the Commission had not acted by that date, the Comission has dccided to continue to provide notice for public coment as it issues its proposed determinations.
B.
State Consultation As noted above, Public Law 97-415 requires the Comission to consult with the State in which the facility involved is located and to promulgate regu-lations which prescribe procedures for such consultation on a detemination that an amendment to an operating license involves no significant hazards consideration. The Conference Report, cited earlier, stated that the conferees expect that the procedures for State consultation would include the following elements:
(1) The State would be notified of a licensee's request for an amendment; (2) The State would be advised of the NRC's evaluation of the amendment request; (3) The NRC's proposed detemination on whether the license amendment involves no significant hazards consideration would be discussed with the State and the NRC's reasons for making that determination would be explained to the State; (4) The NRC would listen to and consider any coments provided by the State official designated to consult with the NRC; and (5) The NRC would make a good faith attempt to consult with the State prior to issuing the license amendment.
At the same time, however, the procedures for State consultation would not:
(1) Give the State a right to veto the proposed NRC determination; (2) Give the State a right to a hearing on the NRC determination before the amendment becomes effective; (3) Give the State the right to insist upon a postponement of the NRC determination or issuance of the amendment; or (4) Alter present provisions of law that reserve to the NRC exclusive responsibility for setting and enforcing radiological health and safety requirements for nuclear power plants.
In requiring the NRC to exercise good faith in consulting with a State in determining whether a license amendment involves no significant hazards consideration, the conferees recognize that a very limited number of truly exceptional cases may arise when the NRC, despite its good faith efforts, cannot contact a responsi-ble State official for purposes of prior consultation.
Inability to consult with a responsible State official following good faith attempts should not prevent the NRC from making effective a license amendment involving no significant hazards consideration, if the NRC deems it necessary to avoid the shut-down or derating of a power plant. Conf. nep. No.97-884, 97th Cong., 2d Sess.,
at39(1982).
The law and its legislative history were quite specific. Accordingly, the Comission adopted the elements described in the Conference Report quoted above in those cases where it makes a proposed determination on no significant hazards consideration. The Connission has decided to retain this procedure. Normally, the State consultation procedures works as follows. To make the State consultation procen simpler and speedier, under the interim final rules the Comission has required an applicant requesting an amendment to send a copy of its appraisal on the question of no significant hazards to the State in which the facility involved is located.
(The NRC compiled a list of State officials who were designated to consult with it on amendment requests involving no significant hazards considerations; it made
=
.. this list available to all its licensees with facilities covered by 6 50.21(b) or 9 50.22 or with testing facilities.)
The Commission sends its FEDERAL REGISTER notice, or some other notice in the case of exigent circumstances, containing its proposed determination to the State official designated to consult with it together with a request to that person to contact the Commission if there is any disagreement or concern about its proposed determination.
If it does not hear from the State in a timely manner, it considers that the State has no interest in its determination -- in this regard, the Commission made available to the desig-nated State officials a list of its Project Managers and other personnel whom it has designated to consult with these officials. The final rule has been clarified to point out that, nevertheless, to insure that, the State is aware of the amendment request and that it is really not interested, the Commission telephones the appropriate State official before it issues the amendment.
In an emergency situation, the Commission does its best to consult with the State before it makes a final determination about no significant hazards consideration before it issues an amendment.
Finally, in light of the legislative history, though the Commission gives careful consideration to the comments provided to it by the affected State on the question of no significant hazards consideration, the State comments are advisory to the Comission; the Comission remains responsible for making the final administrative decision on the amendment request. The final rule has been clarified to make clear that a State cannot veto the Comission's proposed or final determination. Second, State consultation does not alter present provisions of law that reserve to the Comission exclusive responsibility for setting and enforcing radiological health and safety requirements for nuclear power plants.
Regulatory Analysis The Comission prepared a Regulatory Analysis on these amendments, when it issued the two interim rules. The analysis, assessing the costs and benefits and resource impacts, remains unchanged.
It is contained in SECY-83-16B and it may be examined at the address indicated above.
Paperwork Reduction Act Statement This final rule amends information collection requirements subject to the Paperr A Reduction Act of 1980 (44 U.S.C. 3501 et seq.). These require-ments were approved by the Office of Management and Budget under approval number 3150-0011.
Regulatory Flexibility Certification In accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b),
the Comission certifies that this rule does not have a significant economic impact on a substantial number of small entities. This rule affects only the licensing and operation of nuclear power plants and testing facilities.
The companies that own these plants do not fall within the scope of the definition of "small entities" set forth in the Regulatory Flexibility Act or the Small Business Size Standards set out in regulations issued by the Small Business Administration at 13 CFR Part 121. Since these companies are dominant in their service areas, this rule does not fall within the purview of the Act.
List of Subjects in 10 C.F.R. Parts 2 and 50.
Part 2 Administrative practice and procedure, Antitrust, Byproduct material, Classified information, Environmental protection, Nuclear materials, Nuclear power plants and reactors, Penalty, Sex discrimination, Source material, Special nuclear material, Waste treatment and disposal.
Part 50 Antitrust, Classified information, Fire prevention, Incorporation by reference, Inter-governmental relations, Nuclear power plants and reactors, Penalty, Radiation protection, Reactor siting criteria, Reporting requirements.
_ Pursuant to the Atomic Energy Act of 1954, as amended, the Energy Reorganiza-tion Act of 1974, as amended, and sections 552 and 553 of Title 5 of the United States Code, notice is hereby given that the following amendments to 10 C.F.R. Parts 2 and 50 are published as a document subject to codification.
PART 2 -- RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS 1.
The authority citation for Part 2 is revised to read as follows:
AUTHORITY: Secs. 161, 181, 68 Stat. 948, 953, as amended (42 U.S.C. 2201, 2231); sec. 191, as amended, Pub. L.87-615, 76 Stat. 409 (42 U.S.C. 2241);
sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); 5 U.S.C. 552.
Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42 U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); sec. 102, Pub. L.91-190, 83 Stat.
853, as amended (42 U.S.C. 4332); sec. 301, 88 Stat. 1248 (42 U.S.C.
5871). Sections 2.102, 2.103, 2.104, 2.105, 2.721 also issued under secs. 102, 103, 104, 105, 183, 189, 68 Stat. 936, 937, 938, 954, 955 as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2233, 2239). Section 2.105 also issued under Pub. L.97-415, 96 Stat. 2073 (42 U.S.C. 2239)
Sections 2.200-2.206 also issued under secs. 186, 234, 68 Stat. 955, 83 Stat. 444, as amended (42 U.S.C. 2236, 2282); sec. 206, 88 Stat. 1246 (G U.S.C, 3846). Sections 2.600-2.606 also issued under sec. 102, Pub. L.91-190, 83 Stat. 853, as amended (42 U.S.C. 4332). Sections 2.700a, 2.719 also issued under 5.U.S.C. 554. Sections 2.754, 2.760, 2.770 also issued under 5 U.S.C. 557. Sections 2.790 also issued under sec. 103, 68 Stat. 936, as amended (42 U.S.C 2133) and 5 U.S.C. 552. Sections 2.800 and 2.808 also issued under 5 U.S.C. 553.
Section 2.809 also issued under 5 U.S.C. 553 and sec. 29, Pub. L.85-256, 71 Stat. 579, as amended.
(42 U.S.C.2039). Appendix A also issued under sec. 6,- Pub. L.91-580, 84 Stat.
1473 (42 U.S.C. 2135).
2.
In 6 2.105, paragraphs (a)(4) [through-fa)(8)-are-redesignated-as paragraphs-fa)(6)-through-fa)(9)i-a-new-paragraph-fa)(4)-4s-added,and redesignated-paragraph](a)(6) are revised to read as follows:*
5 2.105 Notice of proposed action.
(a)
(4) An amendment to an operating license for a facility licensed under 5 50.21(b) or i 50.22 or for a testing facility, as follows:
(i) If the Comission determines under 9 50.58 that the amendment involves no significant hazards consideration, though it will provide notice
- Additions are underlined; deletions are in brackets and scored through.
of opportunity for a hearing pursuant to this section, it may make the amendment immediately effective and grant a hearing thereafter; or (ii) If the Commission determines under 5 50.58 and 6 50.91 that an emergency situation or exigent [ situation] circumstances exist [s] and that the amendment involves no significant hazards considerations, it will provide notice of opportunity for a hearing pursuant to i 2.106 (if a hearing is requested, it will be held after issuance of the amendment);
(6) An amendment to a license specified in paragraph (a)(5) of this section, or an amendment to a construction authorization granted in proceedings on an application for such a license, when such a_n, amendment t
would authorize actions which may significantly affect the health and safety of the public; or (d)
(1)
(2) Any person whose interest may be affected by the proceeding may file a request for a hearing or a petitic,n for leave to intervene.
3.
Subpart C is revoked.
PART 50 -- DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION FACILITIES 4.
The authority citation for Part 50 is revised to read as follows:
AUTHORITY: Secs. 103, 104, 161, 182, 183, 186, 189, 68 Stat. 936, 937, 948, 953, 954, 955, 956, as amended, sec. 234, 83 Stat. 1244, as amended (42 U.S.C. 2133, 2134, 2201, 2232, 2233, 2236, 2239, 2282); secs. 201, 202, 206, 88 Stat. 1242, 1244, 1246, as amended (42 U.S.C. 5841, 5842, 5846),
unless otherwise noted.
Section 50.7 also issued under Pub. L.95-601, sec.10, 92 Stat. 2951 (42 U.S.C.5851). Sections 50.58, 50.91 and 50.92 also issued under Pub.
L.97-415, 96 Stat. 2073 (42 U.S.C. 2239). Section 50.78 also issued undersec.122,68 Stat.939(42U.S.C.2152). Sections 50.80-50.81 also issued under sec. 184, 68 Stat. 954, as amended (42 U.S.C. 2234). Sections 50.100-50.102 also issued under sec. 186, 68 Stat. 955 (42 U.S.C 2236).
For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2273),
il 50.10(a), (b), and (c), 50.44, 50.46, 50.48, 50.54, and 50.80(a) are issued under sec. 161b, 68 Stat. 948, as amended (42 U.S.C. 2201(b)); il 50.10(b) and (c)and50.54areissuedundersec. 1611, 68 Stat. 949, as amended (42 U.S.C.
2201(1));andil50.55(e),50.59(b),50.70,50.71,50.72,50.73and50.78are issued under sec. 1610,68 Stat.950,asamended(42U.S.C.2201(o)).
For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2273),
il 50.10(a), (b), and (c), 50.44, 50.46, 50.48, 50.54, and 50.80(a) are issued under sec.161b, 68 Stat. 948, as amended (42 U.S.C. 2201(b));
69 50.10(b) and (c) and 50.54 are issued under sec. 1611, 68 Stat. 949, as amended (42 U.S.C. 2201(i)); and $$ 50.55(e), 50.59(b), 50.70, 50.71, 50.72, and 50.78 are issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201(o)).
5.
In 5 50.57, paragraph (d) is revoked.
6.
In 5 50.58, paragraph (b) is revised to read as follows:
950.58 Hearings and report of the Advisory Committee on Reactor Safeguards.
(b)(1) The Commission will hold a hearing after at least 30-days' notice and publication once in the FEDERAL REGISTER on each application for a construction permit for a production or utilization facility which is of a type described in 650.21(b) or $50.22 of this part, or which is a testing facility.
(2) When a construction permit has been issued for such a facility following the holding of a public hearing and an application is made for an operating license or for an amendment to a construction permit or operating license, the Comission may hold a hearing after at least 30-days' notice and publication once in the FEDERAL REGISTER, or, in the absence of a request therefor by any person whose interest may be affected, may issue an l
_ _ _ operating license or an amendment to a construction permit or operating license without a hearing, upon 30-days' notice and publication once in the FEDERAL REGISTER of its intent to do so.
13), If the Commission finds, in an emergency situation, as defined in i 50.91, that no significant hazards consideration is presented by an
. application for an amendment to an operating license, it may dispense with public notice and and comment and may issue the amendment.
If the Commission finds that exigent circumstances exist, as described in 5 50.91, it may reduce the period provided for public notice and comment.
141 Both in an emergency situation and in the case of exigent circumstances, the Commission will provide 30 days notice of opportunity for a hearing, though this notice may be published after issuance of the amendment if the Commission determines that no significant hazards considerations are involved.
151 The Commission will use the standards in i 50.92 to determine whether a significant hazards consideration is presented by an amendment to an operating license for a facility of the type described in i 50.21(b) or i 50.22, or which is a testing facility, and may make the amendrent innedi-ately effective, notwithstanding the pendency before it of a request for a hearing from any person, in advance of the holding and completion of any required hearing, where it has determined that no significant hazards
]
consideration is involved.
4 J
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n 7.
Section [A-new-l]50.91 is [added-to-Part-50] revised to read as follows:
550.91 Notice for public coment; State consultation.
The Comission will use the following procedures on an application [reeelved after-May-6,-1983] requesting an amendment to an operating license for a facility licensed under i 50.21(b) or i 50.22 or for a testing facility:
(a) Notice for public comment.
(1) At the time a licensee requests an amendment, it must provide to the Comission its reasoned analysis, using the standards in 5 50.92, about the issue of no significant hazards consideration.
(2) The Commission may publish in the FEDERAL REGISTER under 9 2.105
[either] an individual notice of proposed action as to which it makes a proposed determination that no significant hazards consideration is involved, or, at least once every 30 days, publish a monthly FEDERAL REGISTER notice of proposed actions which identifies each amendment issued and each amendment proposed to be issued since the last such monthly notice, or it may publish both. For each amendment proposed to be issued, [e4ther] the notice will (1) contain the staff!s proposed determination, under the standards in 5 50.92, (ii) provide a brief description of the amendment and of the facil-ity involved, (iii) solicit public coments on the proposed determination, and (iv) provide for a 30-day coment period. The comment period will run from the first such notice, and, nomally, the amendment will not be granted until after this comment period expires.
(3) The Comission may infonn the public about the final disposition of an amendment request where it has made a proposed determination on no significant hazards consideration either by issuing an individual notice of issuanca ander 6 2.106 or by publishing such a notice in its monthly system of FEDERAL REGISTER notices.
In either event, it will not make and publish a final determination on no significant hazards consideration, unless it receives a request for a hearing on that amendment request.
(4) Where the Comission makes a final detennination that no significant hazards consideration is involved and that the amendment should be issued, the amendment will be effective upon issuance, even if adverse public coments have been received and even if an interested person meeting the provisions for intervention called for in 5 2.714 has filed a request for a hearing.
The Comission need hold any required hearing only after it issues an amend-ment, unless it determines that a significant hazards consideration is involved in which case the Comission will provide an opportunity for a prior hearing and for public coment.
(5) Where the Comission finds that an emergency situation exists, in that failure to act in a timely way would result in derating or shutdown of a nuclear power plant, or in prevention of either resumption of operation or of increase in power output up to the plant's licensed power level, it may issue a license amendment involving no significant hazards consideration without prior notice and opportunity for a hearing or for public coment.
In such a [s4reumstanee] situation, the Comission will not publish a notice of proposed determination on no significant hazards consideration, but will publish a notice of issuance under 6 2.106, providing for opportunity for a
95 -
hearing and for public coment after issuance. The Comission expects its licensees to apply for license amendments in a timely fashion.
It will decline to dispense with notice and coment on the determination of no significant hazards consideration, if it determines that the licensee has failed to make a timely application for the amendment in order to create the emergency and to take advantage of the emergency provision. Whenever a-threatened-elesure-or-derating-is-4nvolved, an emergency situation exists, d licensee requesting an amendment must explain why this emergency situation occurred and why it could not avoid this situation, and the Commission will assess the licensee's reasons for failure to file an application sufficiently in advance of that event.
(6) Where the Comission finds that exigent circumstances exist, in that a licensee and the Comission must act quickly and that time does not permit the Comission to publish a FEDERAL REGISTER notice allowing 30 days for prior public comment, and it also determines that the amendment involves no significant hazards considerations, it will:
(1) Either issue a FEDERAL REGISTER notice to provide an opportunity for a hearing and to allow two weeks from the date of the notice for prior public comment, or it will use local media to E4Rferm3 provide reasonable notice to the public in the area surrounding a licensce's facility of the licensee' amendment and of its proposed determination as described in paragraph (a)(2)ofthissection; (ii) Provide for a reasonable opportunity for the public to comment, using its best efforts to make available to the public whatever means of 4
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r-m comunication it can for the public to respond quickly and, in the case of telephone coments, to have these recorded or transcribed, as necessary; (iii) Publish a notice of issuance under 6 2.106; [ prev 4 ding-an opportunity-for-a-hea ring-a nd-for-pu bl4 e-s eme nt-a f ter-4 s s u a n ee,-4 f-44 de te rm4 ne s-th a t-t he-ame ndme n t-4 n vol ves -no-s i g n i f f e a n t-ha m a rd s-e en s 4 de r a ti on]
(iv) Provide a hearing after issuance, if one has been requested by a person with the requisite interest;
[(4v)](v) Require an explanation fro:n the licensee about the reason for the exigency and why the licensee cannot avoid it, and use its normal public notice and comment procedures in paragraph (a)(2) of this section where it determines that the licensee has failed to use its best efforts to make a timely application for the amendment in order to create the exigency and to take advantage of this procedure.
(7) Where the Comission finds that significant hazards considerations are involved, it will issue,as the situation may require, a FEDERAL REGISTER notice or provide notice in the local media (providing an opportunity for a prior hearing and for public comment) even in an emergency situation, unless t finds an iminent danger to the health or safety of the public, in which case it will issue an appropriate order or rule under 10 C.F.R. Part 2.
(b) State consultation.
(1) At the time a licensee requests an amendment, it must notify the State in which its facility is located of its request by providing to that State a copy of its application and its reasoned analysis about no signifi-cant hazards considerations and indicate on the application that it has done so.
(The Comission will make available to the licensee the name of the appropriate State official designated to receive such amendments.)
(2) The Comission will advise the State of its proposed determination about no significant hazards consideration normally by sending it a copy of the FEDERAL REGISTER notice.
(3) The Comission will make available to the State official designated i.o consult with it about its proposed determination the names of the Project Manager or other NRC personnel it designated to consult with the State. The Comission will consider any coments of that State official.
If it does not hear from the State in a timely manner, it will consider that the State has no interest in its detemination; nonetheless, to ensure that the State is aware of the application, before it issues the amendment, it will telephone that official. [fer-the-purpose-of-eensultation,]
(4) The Comission will make a good faith attempt to consult with the State before it issues a license amendment involving no significant hazards consideration.
If, however, it does not have time to use its nomal consul-tation procedures because of an emergency situation, it will attempt to telephone the appropriate State official.
Inability ;o consult with a responsible State official following good faith attempts will not prevent the Comission from making effective a license amendment involving no l
significant hazards consideration, if the Comission deems it necessary to avoid an emergency situation. [a-shutdown-er-derat 4mg,]
(5) After the Comission issues the requested amendment, it will send a copy of its [f4nal] determination to the State.
(c) Caveats about State consultation.
The State consultation procedures in paragraph (b) of this section do not give the State a right:
(1) To veto the Commission's proposed or final determination; (2) To a hearing on the detemination before the amendment becomes effective; or (3) To insist upon a postponement of the determination or upon issuance of the amendment; (4) Nor do these procedures alter present provisions of law that reserve to the Comission exclusive responsibility for setting and enforcing radiological health and safety requirements for nuchar power plants.
8.
Section [50,91-4s-redesignated-as-l] 50.92 [and-rev4 sed] is revised to read as follows:
9 50.92 Issuance of amendment.
(a) In determining whether an amendment to a license or construction pennit will be issued to the applicant, the Comission will be guided by the considerations which govern the issuance of initial licenses or construction permits to the extent applicable and appropriate. If the application involves the material alteration of a licensed facility, a construction permit will be issued [ prier-te] before the issuance of the amendment to the license.
If the amendment involves a significant hazards consideration, the Comission will give notice of its proposed action J1J pursuant to 6 2.105 of this chapter 1
beforeactingthereonand[The-net 4ee-w444-be-issued](2)assoonaspracticable l
after the application has been docketed.
(b) The Commission will be particularly sensitive to a license amend-ment request that involves irreversible consequences (such as one that, for example, permits a significant increase in the amount of effluents or radiation emitted by a nuclear power plant).
(c) The Commission may make a final determination, pursuant to the procedures in 5 50.91, that a proposed amendment to an operating license for a facility licensed under i 50.21(b) or i 50.22 or for a testing facility involves no significant hazards considerations, if operation of the facility in accordance with the proposed amendment would not:
(1)
Involve a significant increase in the probability or consequences of an accident previously evaluated; or (2) Create the possibility of a new or different kind of accident from any accident previously evaluated; or (3)
Involve a significant reduction in a margin of safety.
1 Dated at Washington, D.C. this day of
,1985.
For the Nuclear Regulatory Commission, Samuel J. Chilk Secretary for the Commission
SUMMARY
OF C0!EENTS r
I i
l l
l l
l l
i l
INDEX TO
SUMMARY
OF COMMENTS 1
1.
Clarity of Standards 2.
Clarity of Examples 3.
Classification of Decisions 4.
Rerackings 5.
Irreversible Consequences i
6.
Emergency Situations 7.
Exigent Cirumstances 8.
Retroactivity
- 9. - Notice and Consultation Procedures
- 10. Notices in Emergency Situations or Exigent Circumstances
- 11. Procedures to Reduce the Number of Amendments
- 12. License Fees
- 13. Regionalization
~
LIST OF COMMENTERS AND DATES COMMENTS RECEIVED Commenters Overall Position on Rules 1.
Ohio Citizens for Responsible Energy (OCRE)
Against Susan L. Hiatte OCRE Representative 8275 Munson Rd.
Mentor. OH 44060 May 5, 1981 2.
Lowenstein, Newman, Reis & Axelrad (Lowenstein)
For Maurice Axelrad 1025 Connecticut Ave., N.W.
Washington, D.C.
20036 May 5, 1983 3.
UniorofConcernedScientists(UCS)
Against Eller R. Weiss Lee L. Bishop Harmon & Weiss 1725 I Street, N.W.
Suite 506 Washington, D.C.
20006 May 6, 1983 4.
Stone &WebsterEngineeringCorp.(S&W)
For R.B. Bradbury Chief Engineer, Licensing Division P.O. Box 2325 245 Summer St.
Boston, Mass. 02107 May 6, 1983 5.
Debevoise & Liberman (D&L)
For(ifits J. Michael McGarry recommendations Jeb C. Sanford about avoiding delays 1200 Seventeenth St., N.W.
areaccepted)
Washington, D.C.
20036 May 9, 1983 6.
Houston Lighting & Power (HL&P)
For M.R. Wisenberg Manager, Nuclear Licenst g P.O. Box 1700 Houston, Texas 77001 May 9, 1983
4.
7.
Three Mile Island Alert, Inc. (TMIA)
Against Joanne Doroshow 315 Peffer St.
Harrisburg, Penn. 17102 May 9, 1983 8
American Industrial Forum, Inc. (AIF)
For Barton Cowan 7101 Wisconsin Ave.
Washington, D.C.
20014 May 9, 1983 9.
LeBoeuf, Lamb Leiby & MacRae (LeBoeuf)
For 1333 New Hampshire Ave., N.W.
Washington, D.C. 20036 May 9, 1983
- 10. The Indiana Sassafras Audubon Society (ISAS)
Against of Lawrence, Greene, Monroe, Brown, (because reracking Morgan & Owen Counties isnotincluded)
Mrs. David G. Frey Energy Policy Comittee, SAS 2625 S. Smith Rd.
Bloomington, Indiana 47401 May 9, 1983
- 11. Seacoast Anti-Pollution League (SAPL)
Against Jane Doughty Field Director 5 Market St.
Portsmouth, NH 03801 May 9, 1983
- 12. Baltimore Gas & Electric (BG&E)
For Manager Nuclear Power Dept.
Charles Center P.O. Box 1475 Baltimore, MD 21208 May 9, 1983
- 13. EdisonElectricli.:titute(EEI)
For John J. Kearney Senior Vice President 1111 19th St., N.W.
Washington, D.C. 20036 May 9, 1983
14 State of Maine (Maine) (Connent on Standards)
Against James E. Tierney Attorney General Philip Abrams Paul Stern Assistant Attorneys General State House Station 6 Augusta, Maine 04333 May 10, 1983
Attorney General Philip Abrams Paul Stern Assistant Attorneys General State House Station 6 Augusta, Maine 04333 May 10, 1983
- 16. Yankee Atomic Electric Company (YAEC)
For (if El 50.59 Robert E. Helfrich and 50.36 were Generit Licensing Activities changed to provide 1671 Worcester Rd.
for fewer amendment Framingham, Mass. 01701 requests)
May 12, 1983
- 17. NortheastUtilities(NU)
For (because they are W. G. Council requiredbystatute)
Senior Vice President P.O. Box 270 Hartford, Conn. 06141-0270 May 16, 1983
- 18. Marvin I. Lewis (Lewis)
Against 6504 Bradford Terr.
Philadelphia, PA 19149 May 15, 1983 18A. Carolina Power & Light Co. (CP&L)
For Samantha F. Flynn Associate General Counsel Walter J. Hurford Manager Technical Services P.O. Box 1551 Raleigh, North Carolina 27602 May 16, 1983 n - -
,~--n e
19.
(Author Unclear)
Against 718-A Iredell Durham, NC 27705 May 20, 1983
- 20. NewYorkStateEnergyOffice(NY)
For William D. Cotter Acting Comissioner Rockefeller Plaza Albany, N.Y. 12223 l
May 23, 1983
- 21. / Portland General Electric Company (PGE)
Against Bart D. Withers Vice President-Nuclear 121 S.W. Salmon St.
Portland, Oregon 97204 June 20, 1983
- /
Renumbered #22 by Docketing Section i
SUMMARY
OF COMENTS 1.
Clarity of Standards 1.1 Coments Comenters 1 (OCRE), 3 (UCS) 7 (TMIA),10 (ISAS),11 (SAPL),14 (Maine), and 19 (Author unclear) state that the three standards in 5 50.92(c) are unclear and argue that the examples in the statement of considerations -- which they believe are clearer than the rule -- should be made part of the rule; otherwise, they argue, the examples have no legal significance.
l l
1.2 Coment
.s' Comenter 18 (Lewis) believes that phe interim final rule " unduly" and " improperly" limits freedom of speech and that minor changes in a plant can lead to severe health and safety consequences, such as an anticipated transient without scram (ATWS) as was the case in an incident with the Salem nuclear power plant.
1.3 Coment Commenter 19 (Author unclear) suggests that the only standard that is needed is one that simply: identifies those license amendments which make an accident possible.
1.4 Comments Comenter 5 (D&L) requests that only " credible accident scenarios" should be considered in evaluating amendment requests against the first two standards.
It also suggests that, with respect to the third standard (significant reduction in safety margins), the Comission should initially determine how large the existing safety margin is before deciding whether a reduction is significant, because the extent of the existing margin is clearly relevant to the Commission's determination.
Commenter 17 (NU), on the other hand, argues that it is inappropriate to specify a percentage change above which the change becomes significant.
It notes that when the safety margin is three l
orders of magnitude, a ten percent reduction is clearly not significant, I
and that when the safety margin is fifteen percent, a comparable percentage reduction may be significant.
It also suggests that the
)
cumulative effects of successive changes to one system must also be considered, and not merely the individual change which is being subjected to review at any given time.
1.5 Comments Conmenter 16 (YAEC) points out that the three standards are virtually identical to the criteria in 5 50.59 for determining whether unreviewed safety questions exist, and states that this similarity is appropriate.
Commenter 17 (NU) makes the same point as comenter 16 but notes an important difference in i 50.59, namely, that the word "significant" is absent in paragraphs (a)(2)(1) to (a)(2)(iii) of that section.
It suggests that 9 50.59 should be amended to make it identical with 9 50.92(c).
1.6 Coment Commenter 20 (NY) generally agrees with the rule but believes that the word "significant" should be defined, if only to forestall court challenges by persons disagreeing with NRC. It suggests that NRC should create some sort of mechanism to resolve disputes between the staff, a State, or other parties, over whether or not an amendment request involves significant hazard considerations.
2.
Clarity of Examples 2.1 Coments on examples in the "likely" category Comenter 3 (UCS) and 14 (Maine) state, with respect to the category of examples likely to involve significant hazards considerations, that (1) examples (i) and (ii) are incomprehensible; (2) example (iii) should be modified to read as follows:
A significant [ change (preferred by UCS) or alteration (preferred by Maine)) in limiting conditions for operation (such as allowing a
~
plant to operate at full power when one or more safety systems are notoperable).
(They request this modification (a) to substitute either the word
" change" or the word " alteration" for " relaxation" in order to clarify that an opportunity for a hearing should be available in cases where there is a legitimate question about the sufficiency of an improvement in safety and (b) to delete the reference to " accompanying changes, conditions, or actions" which they consider irrelevant until the actual hearing.), and that (3) the examples on reracking and increase in radio-active emissions appearing in a staff paper (SECY-83-16A, Enc 3A at pp.
25-26) and deleted from the interim final rule should be restored.
Commenter 13 (EEI) requests additional, clearer examples and comenters 3 (UCS) and 19 (Author unclear) provide the following in the category of examples "likely to involve significant hazards cor.siderations":
(a) Reduction in testing or quality assurance quality control, or monitoring surveillance requirements; (b) Relaxation of a deadline for implementing a requirement related to safety; (c) Any reduction in the degree of redundancy and/or diversity in systems important to safety.
Commenter 5 (D&L) requests, with respect to examples in the "likely" category, that, "where the maximum core power level which has been reviewed by the staff exceeds the power level actually authorized by the license, any increase in power level up to the level which was reviewed" and which received a " favorable conclusion" by the staff
"(subject only to confirmation or verification of some kind) should be considered not likely to involve significant hazard considerations, since that power level has already been reviewed." The commenter contrasts this to a situation where an amendment is sought to permit operation at a maximum core power level in excess of the design basis which was reviewed and approved.
Comenter 7 (TMIA) requests that steam generator tube repairs such as the one at THI-1 should be treated as involving significant hazards considerations.
Commenter 14 (Main) believes that the examples do not necessarily meet with the standards and that this creates a gray area; it then argues -that all borderline cases within this gray area should be placed in the "likely" category.
Commenter 16 (YEAC) argues that, contrary to example (vi) in the "likely" category not all changes to technical specifications are likely I'
to involve significant hazards considerations.
It cites, for example, changes to technical specifications associated with core refueling that consist of small numerical variations to fuel cycle-dependent parameters; these changes, it states, are routinely calculated, verified, and monitored using Comission-approved analytical methods and administrative procedures. As a separate but related matter, it also argues that 6 50.59 should be amended to permit changes to technical specifications without the present requirements of prior approval plus amendment, when it can be demonstrated that such changes do not create any unreviewed safety question under the present criteria in 9 50.59.
The commenter's suggestion is related to the proposed rule which would divide technical specifications into two categories of license specifications: technical specifications and supplemental specifications. The former would require amendments; the latter would not require amendments, but could require prior approval in certain circumstances.
(See 47 FR 13369, March 30, 1982).
2.2 Comments on examples in the "not likely" category Commenter 5 (D&L) requests, with respect to examples in the "not likely" category, that (1) example (ii) be expanded to encompass "any
6-change in the facility or procedures which is plainly a move in a more conservative direction;" (2) example ~(iii) be clarified by expressly.
illustrating the " change" to which it refers "as including (though not limited to) routine adjustments in technical specifications necessitated.
by non-significant differences in physical characteristics of the fresh fuel from the previous fuel;" and that (3) [Commenters 9 (LeBoeuf) and 18A (CP&L) agree] example (viii) be expanded to include adjustments in ownership shares when there are "new co-owners which are subsidiaries, parents or affiliates of existing co-owners, so long as there is no 4
alteration of the lead licensee's control over construction or operations."
Commenter 12 (BG&E) states that example (vi) in the "not likely" category specifies a comparison of amendment requests vis-a-vis the Standard Review Plan (SRP) that may be overly restrictive on older plants.
It suggests that any comparison be made to either original or I
current licensing bases rather than the SRP.
2.3 Comments on both sets of examples Commenters 3 (UCS) and 19 (Author unclear) argue that the word "significant" in the examples should be defined so as not to leave
" critical decisions to the unreviewable judgment of the staff."
Commenter 6 (HL&P) requests that the guidance embodied in both sets of examples should not only be referenced in the procedures of the office of Nuclear Reactor Regulation, but that it should also be i
l formally transmitted to all licensees in the form of a generic letter, l
i regulatory guide, or other such document.
e ns -
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, 3.
Classification of Decisions Comments.
Commenters 3 (UCS) and 14 (Maine) argue that the standards pose complex _ questions that " require a level of analysis that goes for beyond the initial sorting of issues that Congress authorized." They repeat an argument that comenter 3 had made, when the standards were published as a proposed rule, namely, that "the use of these standards cannot help but require the NRC staff to make an initial determination, well before 4
the formal hearing (if any) is held, of the health and safety merits of the proposed license amendment." And they argue that Congress did not authorize NRC to make such a determination in advance of the hearing on the merits.
(Comenter 7 (TMIA) agrees with this argument).
In sum, these commenters would like to see standards that simply allow for the sorting of issues, rather than, as they argue, standards that allow the staff to determine issues which are " virtually the same" as those it determines when deciding whether or not to grant the license amendment.
In this same vein both comenters argue that the standards contravene Congress' intent in that the Comission does not avoid resolving " doubtful or borderline cases with a finding of no. significant hazards consideration."
4.
Rerackings Coments Comenters 1 (OCRE), 3 (UCS), 7 (TMIA),10 (ISAS),11 (SAPL),14 (Maine), and 19 (Author unclear) state that rerackings should be considered amendments that pose significant hazards considerations, in light of the Comission's past practice and the understanding of Congress that the practice would be continued.
The industry comenters 13 (EEI) and 16 (YAEC), for instance, agrees with the Comission's position, including the need for a staff report that would provide the basis for a technical judgment that an amendment request to expand a specific spent fuel pool may or may not pose a significant hazards consideration.
5.
Irreversible Consequences Coments Comenter 7 (TMIA) notes that license amendments involving irreversible consequences (such as those permitting an increase in the amount of effluents or radiation emitted from a facility or allowing a facility to operate for a period of time without full safety protections) require prior hearings so as not to foreclose the public's right to have its views considered. This commenter is especially concerned about the TMI-2 clean up and about the TMI-1 steam generator tube repairs.
It argues that i 50.92(b) (which requires Comission
" sensitivity" to this usue and which is buffered by tiie term "significant")contravenesCongress' intent.
Comenter 20 (NY) requests that a State and the public should have a say about any amendment request involving an environmental impact before NRC issues an amendment.
It wants more from the Comission than the statement in the rule that the "Comission will be particularly sensitive" to such impacts.
Comenter 5 (D&t.) requests that the same argument that applies to
" stretch power" situations should apply to situations which involve
" irreversible consequences", such as increase in the amount of effluents or radiation emitted from a facility.
It argues that, if the discharge
9_
or emission level evaluated in the Safety Analysis Report, the Final Environmental Statement or generically by rulemaking (i.e., Part 50, Appendix I) would equal or exceed the proposed level of emissions, any permanent increase up to that level should not be considered likely to involve significant hazards considerations, and that any temporary f
increase within generally recognized radiation protection standards, such as those in 10 CFR Part 20, should be treated similarly. Moreover, it requests that these situations should be included as examples in the "not likely" category.
On the other hand, comenter 7 (TMIA) argues that ifcense amendments involving temporary waiving of radiation release limitations (so that airborne radioactive waste can be released at a rate in excess of that which is allowed to be released -- as was an issue in the Sholly decision), should involve significant hazards considerations ~and, consequently, a prior hearing.
6.
Emergency Situations 6.1 Coments Commenter 17 (NU) requests that the tenn " emergency" be deleted from thd rule because it could be confused with a different use of this tenn in a final rule issued on April 1, 1983 (48 FR 13966) involving the applicability of license conditions and technical specifications in an
~
emergency. See 66 50.54(x) and 50.72(c).
It suggests that the phrase
" warranting expedited treatment" or some similar phrase could be used instead of the term " emergency."
Commenters2(Lowenstein)and6(HL&P)requestthat650.91(a)(5)
(involving emergency situations) be clarified to make clear that an
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emergency situation can exist whenever it is necessary that a plant not in operation return to operation or that a derated plant operate at a higher level of power generation. Comenter 2 argues that unnecessary economic injury or impact on a generating system should also be classified as an emergency situation.
It recomends that 5 50.91(a)(5) be amended by inserting, after the words "derating or shutdown of the nuclear power plant" the words " including any prevention of either resumption of operation or increase in power output." Comenter 6 concurs with these words and would add the words "up to its licensed power level" after " power output."
Commenter 4 (S&W) suggests that an emergency situation should also exist where a shutdown plant could be prevented from starting up because the Comission had failed to act in a timely way.
Comenters 5 (D&L),16 (YAEC) and 21 (PGE) agree with these comments, arguing that emergency situations should (1) be broadly defined (2) be available when a plant is shutdown and cannot startup without a license amendment, and (3) include situations where an amendment is needed (as is the case with exigent circumstances) to improve public health and safety.
6.2 Coment Comenter 12 (BG&E) requests that the rule specify what is meant by a " timely application" in 5 50.91(a)(5). That paragraph states that liransees should apply for license amendments in a " timely fashion" and that the Comission will decline to dispense wit." ra' ice ind coment s
procedures, "if it determines that the licensee has failed to make a timely application for the amendment in order to create the emergency and to take advantage of the emergency provision."
6.3 Comments Comenter 17 requests that NRC explain how it will process an i
amendment request that involves both an emergency situation and a significant hazards consideration.
It suggests that, in this unlikely t
case, the Comission might issue an imediately effective order under 10 C.F.R. 2.204.
7.
Exigent Circumstances 7.1 Coments Commenter2(Lowenstein)sugw that the two examples of exigent circumstances are unnecessarily narrow because both involve potentially lost opportunities to implement improvements in safety during a plant outage. The comenter recomends that the Comission make clear that these examples were not meant to be limiting and that exigent circum-stances can occur whenever a proposed amendment involves no significant hazards consideration and the licensee can demonstrate that avoiding delay in issuance will provide a significant safety, environmental, reliability, economic or other benefit.
Commenter12(BG&E)requeststhatexigentcircumstancesinclude situations (1)wherealicensee'splantisshutdownandthelicensee needsanamendmenttostartupand(2)involvingsignificanthazapds considerations. The comenter argues that both such situations entail delay and a significant financial burden on licensees.
3 e
7.2 Comments Comenter 4 (S&W) states that the public notice procedures for exigent circumstances should be no different from those for emergency situations.
Commenters 5 (D&L) and 17 (NU) oppose the use of press releases or display advertising in local media, arguing that such notices would unnecessarily elevate the importance of amendment requests.
Commenter 17 (NU) recommends that, if NRC believes that it must issue a press release, it consult with the licensee on a proposed release before it acts.
It also requests that NRC inform the licensee of the State's and the public's comments and that it promptly forward to the licensee copies of all correspondence.
Comenter 5 (D&L) and 17 (NU) also oppose the toll-free " hot-line" in exigent circumstances, arguing that the concept implies iminent danger or severe safety concerns which normally will not be present.
Comenter 5 requests, instead, the use of ma11 grams or overnight express.
It also recomends, if a hot-line system is implemented, that the system should be co. fined to extraordinary amendments involving unique circum-stances. To ensu e the accuracy of transcription of the coments received, commenter 5 s Jggests that the coments should be recorded and retained to ensure that a verbatim transcript could be produced if needed. Commenter 17 requests that copies of the recorded coments should be sent to the licensee.
Commenter 12 (BG8E) suggests that the rule specify the geographical area to be covered by a notice to the media.
. 7.3 Coment Commenter 18A (CP&L) notes that exigent circumstances can arise after the publication of a Comission notice offering a normal public comment period on a proposed determination.
It requests that in these circumstances the rule should make clear that an expedited schedule would be established for receiving public comments and issuing the amendment.
8.
Retroactivity Comments Commenters 2 (Lowenstein) requests (and Comenter 17 (NU) would agree) that i 2.105(a)(4)(1) -- which explains how NRC may make an amendment immediately effective -- be clarified to make clear that NRC will not provide notices of proposed action on amendment requests it received before May 6, 1983 (the effective date of the rule) that do not involve significant hazards considerations. Commenter 2 suggests that the Comission should publish instead notices of issuance of amendments pursuant to 6 2.106.
Comenter 18A (CP&L) suggests expedited treatment for amendment requests received before May 6, 1983, when these relate to refueling outages scheduled by licensees before that date.
9.
Notice and Consultation Procedures 9.1 Coments Comenter 5 (D&L) proposes the following changes (endorsed by comenter 18A (CP&L)) to the notice procedures to shorten the coment period and to clarify the method of publication:
Routine, minor amendments should be published in the monthly accorded. gister compilation only and a ten-day coment period Federal Re There should be no individual Federal Register notice in routine cases. An individual notice should be published in the Federal Register for requests that are not routine, such as for instance, steam generator modifications or raracking. These.
r requests could also be published in the monthly compilation, but the comment period should run from the date of the individual notice. As is the case for routine amendments, we propose a ten-day comment period.
In exigent circumstances, which could encompass either routine or non-routine requests, we propose that notice be published individually in the Federal Register and that a reasonable comment period be accorded taking into account the facts of the particular case.
The commenter argues that expedited notice procedures would satisfy the statutory requirements, would eliminate a large source of delay, and would be recognized by the courts, since expedited procedures are the appropriate solution when notice and hearing are statutorily required but time is of the essence.
Commenters8(AIF)and12(BG&E)arealsoconcernedaboutthe potential for delay in the new notice procedures. Comenter 12 requests that the rule indicate the normal time NRC needs to process routine and emergency applications.
9.2 Coments Comenter 15 (Maine) argues that the consultation procedures created by the interim final rule do not meet Congress' intent br.cause they leave it up to a State to decide whether it wants to constit based on the licensee's amendment request and NRC's proposed determination.
It seeks " formal, active consultation" (before NRC makes its proposed determination and publishes a Federal Register notice) through the
" scheduling of formal discussions between the State and the NRC on the proposed determination, with the foregoing of such only upon written waiver of the State." Additionally, it seeks incorporation of the State's comments in the Federal Register notice together with an
. explanation of how NRC resolved these. Finally, it requests that NRC t
always telephone State officials before issuing an amendment, rather than merely " attempting" to telephone them as, it states, the rule provides.
Commenter 20 (NY) is satisfied with the notice and consultation procedures, stating that "the regulations give the State no more authority in regulating the operation of the reactor then it had in the past, but they serve notice on the reactor operator that the State is an interested party in all nuclear operations within the State."
- 10. Notices in Emergency Situations or Exigent Circumstances Comment Commenter 2 (Lowenstein) recommends that the Commission clarify that it intends to issue a post notice under 6 2.106 rather than a prior notice under i 2.105 when it has determined that there is an emergency situation or exigent circumstances and that an amendment involves no significant hazards consideration. The commenter suggests that, in 6 2.105(a)(4)(ii) the words "it will provide notice of opportunity for a hearing pursuant to i 2.106" should be deleted and the words "instead of publishing a notice of proposed action pursuant to this section, it will publish a notice of issuance pursuant to 6 2.106" should be substituted.
- 11. Procedures To Reduce the Number of Amendments Comment Connenter 5 (D&L) suggests that many of the routine matters which require amendments should not be subject to the license amendment process.
It argues that greater use should be made of 6 50.59 (involving changes, tests and experiments without prior Commission approval, where these do not involve an unreviewed safety question or a technical specification incorporated in a license) for changes involving routine matters by not placing such changes into the technical specifi-
)
cations and thereby avoiding the need to issue license amendments.
Commenter 5 and Consnenter 17 (NU) also generally endorse the Consnission's proposed rule (published on March 30, 1982 in 47 FR 13369) that would reduce the volume of technical specifications now part of an operating license, thereby reducing the need to request license j
amendments.
1 i
i
- 12. License Fees l
Comment i
Conmenter 17 (NU) argues that licensees should not be assessed additional fees to finance activities involving determinations about no significant hazards considerations. It states that in a recent proposed rule (47FR52454, November 22,1982) NRC proposed to amend the existing regulations governing payment of fees associated with, among other l
l things, the processing of license amendment requests. The key element of the proposed changes relates to assessment of fees based upon actual NRC resources expended, rather than upon fixed fee for various classes of amendments.
It goes on to note that, if the Part 170 changes are issued as proposed, after May 6,1983--the effective date of the interim final rule--NRC resources expended as part of the notice and State consultation process would be financed by the requesting licensee.
It states that licensees would not be the " identifiable recipient of benefits" resulting from this more involved process; as such, licensees should not be assessed fees for any expenses resulting from the public
_ -.. notice, State consultation, and other consequential or follow-up activities which may result. And it argues that the legislative history behind Public Law 97-415 makes it clear that licensees are not the prime beneficiaries of this new license amendment process.
- 13. Regionalization Comment Commenter 17.(NU) recommends that, before NRC's headquarters transfers authority to the Regions to process " routine" (mendments, a clear understanding be reached among the licensee, the Region and NRC's headquarters about the ground rules for what would constittte " routine" versus " complex" amendments and for the ways the amendments would be processed from the times they are requested, throtch notice and State consultation, to their grant or denial.
- 14. Exemption Requests Comment Commenter 17 (NU) is concerned that NRC might automatically l
consider exemption requests as license amendments.
It believes that exemption requests need not automatically be considered license amendments, even though NRC has occasionally elected to notice such requests in the Federal Register or has assigned license amendment numbers to the issuing documents.
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