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{{#Wiki_filter:r my '. h*bY - A F F 1 R Fr A T T 0 N cc: otrcks l Roe' RESPONSE SHEET 48 i T0: SAMUEL J. CHILK, SECRETARY OF THE COMMISSION
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SUBJECT:
SECY-83-16B - REVISED REGULATIONS TO IMPLEMENT LEGISLATION ON (1) TEMPORARY OPERATING LICENSING AUTHORITY AND (2) NO SIGNIFICANT HAZARDS CONSIDERATION (THE "SHOLLY AMENDMENT") - SECY-83-16 AND 83-16A APPROVED N DISAPPROVED ABSTAIN ~ ~ .N0TPARTICIPATING) ' (OGC markup with modification to REQUEST DISCUSSION Encl. 2 page 19. Also NP markup of } COMMENTS: pp. I and 20 and TR markup of p. 26 Encl. 3 which were not picked up by OGC.) ~~ V f s s 0-i . ~. - ] td ((%1 l L WA ff)L I J Nf gg',,y awu'ntt km & d4e jui-kuuf A
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/ A 5t Ia ept, given.the understanding, as staff has / S16NAIURt. J, expressed in several Commission meetings, that th t 7 b/[ TMI venting would not have met these significant ekN[16d490e60327 l NSF [ bb 0491 PDR SECRETARIAT NOTE: PLEASE. ALSO.. RESPOND TO. AND/OR COMMENT ON.0GC MEMORANDUM IF ONE RAS BEEN ISSUED ON THIS PAPER. ~ NRC-SECY FORM DEC. 80 )
C. M 32 - (i) Use local media to infom the public in the area surrounding a licensee's facility of the licensee's amendment reouest and of its proposed detemination as described in paragraph (a)(2) of this section; (ii) Provide for a reasonable opportunity for the public to comment, using its best. efforts to make available to the oublic whatever means of communication it can for the Dublic to respond quickly; (hfi) Use its nomal public notice and comment procedures in paragraph s 5 (a)(2) of this section ~ --. __ where it detemines 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, Iquire an explanation from the licensee about the reason for the g {exigencyandwhythelicenseecannotavoiditCzed (.s e a- ,-- a..+ .,,,,oe+ .nos tnat tne iicconce c =.. i a^ ^ ' : ( m . _. -- 2. ^ '~~ .........m yu ..__. s e---- .a -g --.. 1 L j i C ' n ;'.. ... L_ 3; :: :'d. _.:...,...." 3 ~ Publish a notice of issuance under 5 2.106, providing an opportunity for a hearino and for oublic comment aften issuance lf #Y deiuNhMJ .Q fj4 dW(>dd thM po qMifuM.$a 2M Cow @3*Wj (b) State consultation. (1) At the time a licensee reouests an amendment, it must notify the State *in which its facility is located of its request by providing to that h
Jhcl 4 N -(QC 10-rYw 3 3 ~ (ob 0 clearly contemplate that the procedural framewo k is both useful and needo to govern the Comission's actions in exercising the new authority and to %$g J m preserve for the public its right to participate in licensing decisions. Proocsed Suboart C to 10 C.F.R. Part 2 Procedures Under Section 192 r Tor Ine issuance o iemocrary Ocerat ng Licenses." Q.s. i( s-y Subpart C would simply add procedural requirements.to 10 C.F.R. Part 2 needed to implement the temporary operating licensing authority in-section 192 of the Act as provided for in a new i 50.57(d) of 10 C.F.R. Part 50. Unlike the hearing process on the final operating license, the temporary operating licensing process would be subject neither to the hearin) U4' ' requirements of section 189a. of the Ac'M to the requirements of .h a subparts A $ all the reevirements of suboart G of the Rules of Practice in 10 C.F.R. Part 2. However, certain sections of suboart G would be aoolied to resolve needless controversy about such items as the filino of oaoers, service on parties, and so on.. These are 10 C.F.R. { 2.701, 2.702 and 2.708 - 2.712, relatine to service and filine of documents, maintaining a docket, and time comoutations and extensions; ! 2.713; relating to accearance. and oractice before the Comission; i 2.758, generally orchibiting challences to the Comission's rules; and i 2.772, generally grantino the Comission's i SItretarv the authority to rule on orocedural matters. It should be noted that 10 C.F.R. ? 2.719 and 2.780, relating to separation of ft ictions and .m &ft ~ ?.. ex carte ce=ranications, would not acoly. a .tr ql ~ n 8-~ m C= : - - ~ 8 =: : = =- i-n =
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pid 1 g7 \\ 7 o s ComiNion is sensitive to the concern e.. thathe v anfo cal contacts should not be extensive anc that they shculd not result ~ in sienificant data or arcument that is -both relied on by -he Comission N in its temocrarv operatinc licensinc decision and unavailable to the parties for coment before the decision.C:*, '" :::: : : :-
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..w=.4.w vinc.ee-.432. The Co nission's decision .\\ not to ao.31v separation of functions and ex carte rules to temocrary k. refier;tt a (WeffireWic. Oc't Si. 8ffp rukt (dimk1 fe ferrW4 TNd/ IypP operatino licensingmis based on the belie. that coerating licensino and proceMtu. Ctad[ temocrary coeratine licensine oroceedines on a given plant are separate oreceedines for the purpose. of acclication of the fornal hearinc recuirements g the Administration Procedure Act ( APA). The amencment to section 192 cf the Atomic Enerev Act ( Act) states that section 189a. of the Act does not .rooly to a temocrary operating licensing croceedinc; thus, if section 18e. a
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' nf tyifd,f, either. Consecuently, the Cent.ission's consideration of - '"-*e i Mc(Nd. co=unications with the carties in a_ temporary operating licensing proceeding would not prevent the Co=ission from eventually considerino, ad ,d y ~ necessary, issues arising from the coerating licensing proceedino.e, ' ,j ), 3 bears mention that the Conference Co=ittee noted that, under i s ction 192, the Comdission cannot issue a temporarv operating liten e before "all significant safety issues specific to the' faciiity in question =ve been U ~ resolved to the Comission's satisfaction." See Conf. P,ep. No. 97-88, 97th /y b:~ cDk Cong., 2d Sess. 35 (1982). L \\ -y6,,y i v.g. %wi.( $ %.c4 % scc ed,pwxtr#Ga-4dg ~. a m,0.u s w -:,sccuu timt>ss1-1 u r. r \\
bdt PCrC-M&lC W} reasons justifying the findings required by tha#t section and i 50.57(d). The order must be sent upon issuance to the Cemittees described before. The temporary operating license would contain such terms and conditions as the Comission may deem necessary, including the duration of the license and any provision for its extension. ~ The Comission would suspend the temporary operating license if it finds that the applicant is not prosecuting the application for the final operating license (and on which a hearing under section 189a. is being conducted) with due diligence. The Comission could, of course, suspend the license for other r,easons, such as in the interest of public health and safety. Section 192 provides that the Comission's authority to issue new y,. m temporary operating licenses shall expire on December 31, 1983. h w - > -.
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q ?;L s e, .,:p;...Lx". Since the Comission cannot . m.,. u.. .....e issue new temporary operating licenses after December 31, 1983, it expects any licensee that wishes to apply f,or such a licensee to do so before November 23, 1983, to allow it to act before its authority expires. (See i 2.301.) Licensees should also note that their licenses will not expire on that date. Section 192 simply states that the Comission's authority to issue a new emporary operating license will expire. It is also clear that the Comission retains its authority to suspend the temporary opera}ing license, if it finds that the applicant is not prosecuting its apdicatIon for the final operating license with due diligence. (See i 2.306.) Finally, where the Comission has o
WCel A Xtt fTicamCoi*P' i '~"" be f ct.L,f. 4 ~ the final operating license e applicant may file any such petition at any called fog by se,w Mction 192 of the Act and i 50.57(d) time after the documen y ' y-3 ry n p of this chapter Q-N O W (b) The initial petition for a temporary operating license for e,ach such facility shall, in accordance with section 192 of the Act and 5 50.57(d) of this chapter, be limited initially to a specified time and to a power level not to exceed 5 percent of the facility's rated full thermal power for that specified time. After the Commission issues a temporary operating license for any such facility, the licensee may file subsequent petitions with the Comission, using the procedure described in paragraph (a), requesting the Comission to amend the temporary operating license to allow ~ facility operatica at incremental stages,beyond the initial 5 percent level for specified times, up to and including operation at full power, pending completion of the proceeding on the final operating license. (c) The Comission has full discretion to determine the initial power level up to 5 percent and the incremental increases in power levels it will authorize and the period for which the authorization is granted. It will not grant a temporary operating license or an amendment to that license for a ' period lasting beyond the date the final operating license is granted, and the temporary operating license and any amendments to that license wil1 Eyexpire when the final operating license is issued. ? W 5 2.302 Contents of affidavits. 1 The applicant's petition for a temporary operating license or an amend-ment.to that license shall be accompanied by an affidavit or affidavits . setting forth the specific facts upon which the petitioner relies to justify
Fue3 (Mc a*y) _g_ for a nuclear power plant can become effectiv'e, if there has been a requestforhearing(oranexpressionofinterestinthesubjectmatter of the proposed amendment which is sufficient to constitute a request for ahearing). A prior hearing, said the Court, is required even wt en NRC has made a finding that a proposed amendment involves no significant hazards consideration and has determined to dispense with prior notice in the FEDERAL REGISTER. At the request of the Corr.ission and the Depart-ment of Justice, the Supreme Court agreed to review the Court of Appeals' g; interpretation of section 159a. of the Act. The Supreme Court has net M ~N yet-astederemanded the case to the Court of Acceals with instructions to ,m,,..,.]pggg4(4 git}yggiootgg,M[f[j C _. : _,1. 1. 4. u i.. "s st Ts recoui& Fits decWon iiligkk of % M Ic9 sic ticA. t 1 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 P.rocedure Act, i 9(b), 5 U.S.C. I 55B(c), section 161 of the Atomic Ene.rgy Act, and 10 C.F.R. 55 2.202(f) and 2.204. Similarly, the Court did not alter existing law with regard to the Commission'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 is, whether the person has demonstrated standing and identified one or more issues t6 b6 litigated. See, BpI v. Atomi$;Eneriy 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 Comission to require that the prospective intervenor first specify the basis for his request for a hearing." e 9 4
[oGc rna.<J. y) OncloFue 3 significant hazards consideration." The Comission believes that the standards coupled with the examples help draw as clear a distinction as practicable. Therefere, It has decided not to include the examples in the text of the rule in addition to the original standards, but, rather, to keeo them as cuidelines under the standards'for the use of the Office of Nuclear Reactor Regulation. License amendment requests falling within the examples in-new-E-5Gr92(b)(1J ~ lik '" to involve significant nazards or (b}{2} those likely to involve no significa hazards will normally be determined by operation of these-twe examples, unless there-are-senf ad-se4entifie-and-eng4neering \\ paragraphs, th reaseRs-te-the-e0Rs rve the specific circumstances of a license amendment reauest, when measure inst the standards, lead to a contrary conclusion. Those amendments that do not it into the 5-5Grg2(b)(i}-er-(b}{2) examples will be detemined'by application 'thestandardsinthe5-5Gr92fe), rule, which will orevail at all times. N W The Comission wishes licensees to note that when they conside.r license amendments f alling b >.=:Tii(4. c.' - " - e " -- l e - " :-t: n '-
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w,,, s. -;1_;:: e n i-- i u i- [_t :- ? _... m), the Comission may need additional time = foe 'tT/ rb6 rg-fras.A hemd4 Cpifder4ch4 d@tp/wsb4j ~ ~ [e-w-'- thus, they should factor this ......_...._~t: !g ' information into their schedules for developing and implementing such changes to facility design and coeration. n .y The interim final rule thu; goes a long way toward meeting the intent of the legislation. In this regard, the Conference Report stated: 1
(N nap.k bCl) i I' 19 - The conferees also expect the Com ssion, 'in promulgating the regulations required by the new subsection (2)(C)(i) of section 189c. 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 isstes and determine whether they involve significan' health, safety or environmental considerations. These standards shc ild be capable of being applied with ease and certainty, and shouh. ca ;ure 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. 7F/4: 37 (1982). ....3....:.n 7o'n:
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} h... ......... -. o a .com It should be noted that the Comission has attempted to draft standards that are as useful and as clear as possible, and it has tried to fomulate examples that will help in the application of the standards. These final standards are the product of a long deliberative process. As will be recalled, standards were submitted by a petition for rulemaking in 1976 for the ~ Comission's consideration. The standards and examples in-this-inter 4m-final Fwle are as clear and certain as, the Comission can make them -- and, to repeat the Conference Report, "should ensure that the NRC staff does not resolve doubtful or borderline cases with a finding of no significant hazards consider- ' ation." The Comission welcomes suggestions from the public to trake them clearer and more precise, recognizing, in the Senate Comittee's words, "that h reasonable persons may differ on whether a license amendment involves a sig-nificant hazards consideration." y r.<. Returning to the Senate Comittee Report noted above with respect to the issue of a rerackinc of a spent fuel pool, the Comission has-aiready-been-treat 4ng-a-verasking-e?-a-spent-fwel-peel-as-45-4t-were-44kely 9
p fl** * ' ' WFma,4]Y (% te-4Rvelve-a-s45mif4eant-haEaFds-eensideFatieR -asseFdike fy-a-n{W-exaEple T v.) (v 444 )-h a s -b e en-a d d e d-te-th e -44 s t-e f-e x aspi e s -i n 59,92 f b.) (1)-t e-mak e eieaF-that-a-FeFash4Rg,ef-a-speRt-fuel-steFuge-peel-sheWId-be-tFeated-4n the-same-way-as-an-example-sensidered-14kely-te-4avelving-a-signif4eant hazaFds-eensideFatteRe--Nete-that *WadeF-E-134-of-the-HveieaF-Waste-Pel4ey T Aet-ef-198Ey-4f-a-he5Fing-4s-heid-in-sennestien-with-th4s-type-et-example, 44-wswid-take-the-feFm-ef-a " hybrid"-heaf 4mgr has been providing, as a matter of oubiic interest, orier notice and an opoortunity for a prior hearing on amendment reauests involving this issue. As exclained in the separate FEDERAL REGISTER notice, it will continue to offer prior notice for oublic coment of these and other amendment reauests.. It is not ) ( orecared to say, though, that a rerackinc of a spent fuel storage cool .....__d sh cC a 9 -> m- --c w.. l M likely or not likely to involve a significant hazards consideration. / e Each such amendment recuest should be treated with resoect to its own i intrinsic circumstances, using the standards in i 50.92 of the rule to make a judement about significant hazards considerations. Consecuently, \\ the Co=ission has decided not to include reracking of a spent fuel storage ocol in the list of examples or in the rule. If it does determine that a particular reracking involves significant hazards considerations, it . will orovide an opoortunity for a prior hearing, as exclained in the ,i seoarate FEDEPAL REGISTER notice. Additionally, it should be noted that under section 134 of the Nuclear Waste Policy Act of 1982, an interested party may reauest a " hybrid" hearing rather than a formal adjudicatory hearing in connection with reracking, and may participate in such a hearing, if one is held._ The Comission will publish in the near future a FEDERAL e mim.
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- te -i nv elve-a-s 4 gni f 4 ea s t-h a E a rd s -e e R s i de Fa tit)RT-aFeeFd4R5iys-a-new-example (v444 -has-been-added-te-the-14st-ef-examples-4n-i-5Gr92fh)(1)-te-make e le a r-t h a1E -a - Fe Fa e k i n g-e f-a -s p e n t - f w e l-s t e Fa g e - p e e l-s h e w i d-b e - t F the-same-way-as-an-example-sensideFed-44keIy-te-4RYelV4n5-a-s4 R4f4eaRt 5
h a n a Fd s - e e R s 4 de Fa t i e R e --Ne t e - t h a t s - w n d e r-i-i 34-e f-t h e -Nu e Aet-ef-1982 a-heaf 4mg-45-held-4m-seRRestien-with-th4s-type-ef-exampley 7 4t-wevid-take-the-fers-ef-a thybF4d:-heaf 4Rgr has been providino, h prior no~tice and an occortunity for a prior _ hearing on amendment reouests involvino this issue.bos<awof %Q perc tiod As explained in the y seoarate FEDERAL REGISTER notice, it will continue to offer prior notice ,7 4 e e g 'a g 3g.h for public coment of these and other amendment reouests. It is not t $2 tt precared to say, thouch, that a rerackino of a spent fuel storage pool jIs3.W) should or should not be treated in the same way as an example considered g Je c' ) > j likely or not likely to involve a sionificant hazards consideration. S n 'Each such amendment reouest should be treated with respect to its own
- 1 intrinsic circumstances, using the standards in 5 50.92 of the rule to no make a judgment about significant hazards considerations.
Consecuently, JPj)'- c 3he Commission has decided not to include reracking of a spent fuel storace, canevt pool in the list of examples or in the rule. If it h detertnine that / 4 a carticular reracking involves 10sionificant hazards considerations, it f I Nill provik an occortunity for a orier hearino, as explained in the p seoarate FEDERAL REGISTER notice. Additionally, it should be noted that under section.134 of the Nuclear Waste Policy Act of 1982, an interested Nft s n carty may reouest a " hybrid" hearinof:- % ' ' ' f %ew --; lin connection with rerackingkand may carticipate in such a hearino, ~ ra if one is held. The Commission will publish in the near future a FEDERAL es e 0
O0 C. ' 3 T) or i 50.22 or for a testing facility will likely be found to involve significant hazards considerations, if operatiori cf the facility in accordance with the crocosed 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 co.mensurate level of safety (such as allowing a plant to operate at full power during 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 hdC approval 7FA *' involving a significant unreviewed safety question. 11 (vii) A change in plant operation designed to improve safety but i / which, due to other factors, in fact allows plant operation with h safety margins :' ::n significan reduced from those believed to have been present when the license was isqued. (v444)--Reraeking-ef-a-spent-fwel-sterage p'ee4'r (viii) Pemitting a significant increase in the amount of effluents or radiation emitted by a nuclear power plant. O e
CMC.I '".8 -(Nt'#"0"h [7590-01] NUCLEAR REGULATORY COMMISSION 10 CFR Part 50 Standards for Detemining Whether License Amendments Involv'e No.Significant Hazards Considerations AGENCY: Nuclear Regulatory Comission. ^ ACTIONi_ Interim final rule.
SUMMARY
Pursuant to Public Law 97-415, NRC is amending its regulations to specify standards for determinin~g whether requested amendments to operating licenses for.certain nucigar power reactors and testing facilities involve no significant hazards considerations. These standards will help NRC in its ~ Research reactors are not covered". evaluations of these requests. EFFECTIVE DATE: The Comission specifically requests coments on this interim final rule by
- Coments received after this date will be considered if it is practical to do so, but, assurance of consideration cannot be given except 7.s to coments received on or before this date.
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30 days followin~g publication in the FEDERAL REGISTER. This fcotnote e x will be deleted after the Comission has acted. X b Cv 0;^ i 'fD kp.cw t -{hr % m usin 13 tf V in9 4 a a.. ~i n wa.y :n + 4 as a & pp m AtkG1c.l &cckv. ~ e
~ consideration is involved, it would handle this request in the same way it does now, by issuing an individual notice of proposed ;ction and providing an opportunity for a hearing under i 2.105. The only change in its present procedure would be that it could notify the public of the final disoosition of the amendment by noting its issuance or denial in the nonthly FEDERAL REGISTEo notice instead of in an individual notice. Another possibility might be that the Cor nission receives an amendment request and finds 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 determines, among other thinos, 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 orior notice for public,coment and might therefore use its present procedu-e, publishing an individual notice of issuance under i 2.106 (which provides an opportunity for a hearina after the amendment is issued.) Additionally, the Comission's monthly FEDERAL REGISTER M: notice system would note the Comission's action on the amendment reouest and, ~ ih thereby, orovide an occortunity for public corrnent. In connection with emer-to appiv for license gency requests, the Comission expects its li nsee ~ cje io. chrpevie k,M4 no1,t.e ard ccwM " WE.t.14 M u tss tsynt9ca4 bragrdJ Ccettec{wil amencments' iri a timely fashion. It cl$s,*tttrk t waw.e.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 O e WP
$M Mt W { OM WW' , l The Comission will use these procedures sparingly and wants to make sure that its licensees will not take advantage of these procedures. Therefore, it will use criteria, somewhat similar to the ones it will use with respect to emergency situatio.ns, to decide whether it will shorten the comment period and change the type of notice normally provided. Consequently, in connectiori with requests indicating an exigency, the Commission 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 amend-ment in order to create the exigency and to take advantage of the exigency ~ provision. Whenever a licensee wants to use this provision, it will have to explain to the Comission the reason for the exigency and why the licensee cannot avoid it; the Comission 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 act. ion at some later time. hreover, e the Comission will grant an amendment request in an exige , and change its it finds that the normal notice and public coment procedures, oniv ' l'icensee's action pursuant to its requee' g) is authorized by law and will not endanger life or propertv ne common defense and security and is [otherwise in the pu.. interest -- this is the standard used for specific exemptier der i 50.12(a) -- and (2) involves no significant hazards .siderations Another different circumstance may also present itself to the Comission. For , instance, it could receive an amendment request with respect to which it O O G
yp LUh MEN ) ~ o - 31 '- amendment, unless it detemines that a significant hazards consideration is involved. (5) Where the Comission finds that an emergency situation exists., in that failbre to act in a timely way would result in derating or shutdown of a nuclear power olant, it ma' issue a license amendment involving no significant hazards consideration without prior notice and epoortunity for a hearing or for public coment. In such a circumstance, the Comission will not publish a notice of proposed determination on no significant hazards consideration, but will publish a notice of issuance under i 2.106, g: providing for opportunity for a hearing and for public coment after issuance. The Comission expects its licensees to apply for license amendments in a tw decai,s.to cliepore uaw us,a mz coeuruet oug<g timely fashion. It will L. _N. "c'- ..c .....u......c... it 5 g p*41Y [ detemines that the licensee has failed to make a timely application ccp8 li for the amendment in order to create the emergency and to take advantage of the emergency provision. Whanever a threatened closure or derating is involved, a licensee requesting an amendment must explain why this emergency situation occurred and why it could not avoid this situation, and the Comission will a,ssess the licensee's reasons for failure to file an application sufficiently in advance of that event. It fg ' (6) Where the Comission finds that exigent circumstances exist, in that a licensee and the Comission must act quickly;end that time does not pemit the'Coi=11ssion to publish a FEDERAL REGISTER notice allowing 30 days for prior public coment, it will: f
f ~ LAW CFFICM LOWENSTEIN, NEWMAN, REIS & A.XELHAD, P. C. 4025 CON NECTICUT AVENUE, N. W. WAS HIN GTON, D. C. 2 0 03 6 ma.oto r...is m.u.<t. a. L.* O 202 662-8400 Off.Mk..N M..M.. m....... .e.... 10 pow.La or Coww. 6 ..<.. r... .e... [***",*,',,",'"" May 2, 1983 m o....... m, .... m.... Mokkf.5. U NO.M &8 Mr. Samuel J. Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Attn: Docketing and Service Branch Re: Interim Final Rules on " Standards for Deter-mining Whether License Amendments Involve No Significant Hazards Considerations" and " Notice and State Consultation" (48 Fed. Reg. 14,864-80)
Dear Mr. Chilk:
On April 6, 1983, the Commission published " interim final rules" on the foregoing subjects and requested comments thereon by May 6, 1983. In response to such request, these comments are being submitted on behalf of Iowa Electric Light and Power Company and Florida Power & Light Company. For the reasons set forth in more detail below, we suggest that the regulations and the Commission's intent be clarified as to the situations that could constitute an " emergency" or an " exigency," as to the transitional pro-visions applicable to requents for amendments received prior to May 6, 1983, and as to the use of post-notices under Section 2.106 in lieu of pre-notices under Section 2.105 in specified circumstances. " Emergency Situations" Under new 10 C.F.R. S 50.91(a) (5), the Commission may issue a license amendment involving no significant hazards consideration without prior notice and opportunity for hear-ing "[w]here the Commission finds that an emergency situa-c D
.e .1.owrstatw, NawwAw, C s3 O ArtmA% R C Mr. Samuel J. Chilk May 2, 1983 Page Two tion exists, in that failure to act in a timely way would result in derating or shutdown of a nuclear power plant. Neither " shutdown" nor "derating" is defined in the regulation.*/ Although neither term is precise,-in our view the logical intent must be for the regulation to include any interruption or reduction in the normally expected supply of electricity from a plant which has been in operation, under circumstances where such interruption or reduction would cause unnecessary economic injury or impact on a generating system. Thus, an " emergency" either could result from an interruption of operation or decrease in operating capacity or could exist because a plant, which has been shutdown or operated in a derated modo, is not permitted to return to operation or to increase its power output. However, a narrower -- and we believe mistaken -- reading of the terms " shutdown" and "derating" might attempt to limit the regulation only to circumstances where a plant is actually in operation and suspension of operation or reduction of power generation would result unless the license amendment is timely issued. So interpreted, the provision would not apply to an amendment needed prior to return to power by a plant which has not been in operation (e. g., because of refueling, maintenance, interruption of transmission capacity, etc.). Nor would it apply to an amendment re-quired prior to an increase in power output by a plant which, for any one of a number of similar reasons, is operating at a lower level of generation. Because of this ambiguity, we strongly suggest that Section 50.91(a) (5) be amended to make it clear that an emergency situation can exist whenever it is necessary that a plant not in operation return to operation or for a de rated plant to operate at a higher level of generation. We believe that there is no impediment to this proposal in either Public Law 97-415 itself or its legislative history.
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The discussions of emergencies in the Statement of Considerations (4 8 Ped. Reg. 14,876, 14,877) does not assist in this interpretative effort. l
n-e LoWENiTE12, NEWMAN, R213 O Axct. man P C. Mr. Samuel J. Chilk May 2, 1983 Page Three On the contrary, our proposal corresponds with our view of the legislative intent. It is clear that Section 12(a) of that legislation does not stand in the way of the proposal. The only relevant language is contained in the new Section 189a(2) (c) which directs the Commission to promulgate regulations establishing (ii) criteria for providing or, in emergency situations, dispensing with prior notice and reasonable op-portunity for public comment on any such determination, which criteria shall take into account the exigency of the need for the amendment involved; The provision does not define " emergency" or " emergency situations" but it does direct the Commission to "take into account the exigency of the need for the amendment involved." So far as economic need and system reliability are concerned, when power is needed the " exigency of the need" is essentially no different whether power is obtainable from a plant which can remain in operation or be operated at a high power level or from a plant which can be returned to operation. We are aware that the language of Section 50.91a(5) is derived from similar language in the Conference Report: In the context of subsection (2) (C) (ii), the conferees understand; (sic) the term " emergency situations" to encompass only those rare cases in which immediate ac-tion is necessary to prevent the shutdown or derating of an operating commercial reactor. (The Commission already has the authority to respond to emergencies involving imminent threats to the public health or safety by issuing immediately effective orders pursuant to the Atomic Energy Act or the Administrative Procedure Act. And the licensee itself has authority to take whatever action is necessary to i
r 4 LOWmMSTar:2,NewwAw,Er3O Ax":t m EC, Mr. Samuel J. Chilk May 2, 1983 Page Four respond to emergencies involving imminent threat to the public health and safety.) */ However, the language of the first sentence quoted above has no more precision than does the regulation. On the other hand, the immediately following language contained in the parentheses makes it clear that the term " emergency situations" does not involve " imminent threats to the public health or safety" in the sense that those terms are used in the Atomic Energy Act. Rather the " emergency situations" must relate to other kinds of events and situations, including dislocation because of power outages or inability to return a plant to operation and of economic losses resulting from the unavailability of an economic means of generating power. For the foregoing reasons, we recommend that Section
- 50. 91 (a) (5) be amended by inserting after the words "derating or shutdown of a nuclear power plant" the following words:
(" including any prevention of either resumption of operation or increase in power output)". " Exigent Circumstances" At 48 Fed. Reg. 14,877 the Commission explains an " exigency" as a situation "where a licensee and the Com-mission 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 for public comment." We agree with the breadth of that definition by the Commission. However, the two examples then given by the Commission appear to us unnecessarily narrow since both involve obvious improvements in safety and both involve potentially lost opportunities to implement such improve-ments during a plant outage.. Although no amendment to the regulations is required, we suggest that the Commission make clear that these examples were not meant to be limiting in any respect, and that a determination of " exigency" can be considered whenever a proposed amendment involves no sig-nificant hazards consideration and the licenseo can demon-strate that avoiding delay in issuance will provide a sig-nificant benefit (safety, environmental, reliability, economic, etc.).
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H.R. Rep. No. 884, 97th Cong., 2nd ben.. 18 (1982). l
Lowsmstraw, NawwAw, Cata O AxOscAD, P. C. Mr. Samuel J. Chilk May 2, 1983 Page Five Amendment Requests Received Before May 6, 1983 In its statement of consideratio' 1 (48 Fed. Reg. 14,877), the. commission specified ths with respect to amendment requests received before May 6, 1983, the Com-mission intends to keep its present p ocedures and not provide prior notice of amendments that involve no sig-nificant hazards considerations. In our view, not only is this approach valid and appropriate under the statute, but it is essential in order to avoid both the potential logjam in NRC licensing activities that could result from the publication of an omnibus listing of pending amendment requests and the unnecessary delays that could result in the processing of any particular pending request. To assure that the foregoing Commission intent is carried out, how-ever, we believe that the newly adopted Section 2.105(a) (4) (i) should be clarified. As promulgated, the section does not explicitly distinguish between requests received before May 6 and those received thereafter. In order to avoid reliance solely on the Commission's statement of its intent we suggest that the regulation be amended as follows: In Section 2.105 (a) (4) (1), delete the words "though it will provide notice of opportunity for a hearing pursuant to this section," and substitute the following: "though it will publish a notice of proposed action pursuant to this section (except in the case of an application for amendment received prior to May 6, 1983, where it will instead publish a notice of issuance pursuant to S 2.106),". Several of the other contemporaneous 1y adopted regula-tions also do not deal explicitly with amendment requests filed before May 6, 1983. Although corresponding clarifica-tions could be considered, we do not believe that they are necessary. In order to avoid any misunderstanding as to the Commission's intent, however, we urge that the Commission explain clearly the overall effect of the new regulations on amendment requests still pending on May 6. For the con-venience of the Commission, we enclose a proposed explana-tion which could be published in the statement of considera-l tions.1ealing with the revision of the interim rule. l l t e
r Low,1mstanw, NawwAx, C~na O Ax:s.cAn, P. C. Mr. Samuel J. Chilk May 2, 1983 Page Six Issuance of Post-Notices Under Section 2.106 It is the obvious intent of the new Section 2.105(a) (4) (11) that, under the circumstances there specified (a determination of an emergency or exigent situation and an amendment involving no significant hazards consideration), a notice of proposed action would not be published under Section 2.105 and, instead, a notice of issuance would be published under Section 2.106. However, to avoid the possible misunderstanding that the Section 2.106 notice is in addition to, and not a substitute for, a Section 2.105 notice, we suggest that the regulation be amended as follows: In Section 2.105(a) (4) (ii), delete the words "it will provide notice of opportunity for a hearing pursuant to S 2.106" and substitute the following: "instead of publishing a notice of proposed action pursuant to this section it will publish a notice of issuance pursuant to S 2.106". Although this amendment might be viewed as an overabun-dance of caution, we believe it to be desirable to avoid possible future controversy. ery truly yours, -[ x t Lowenstein, Newm n, Reis & Axelrad KHStjcj Attachment bec: Guy II. Cunningham t
r _,e ATTACHMENT Proposed Statement Pertaining to Amendment Requests Received Before May 6, 1983 As was indicated in the statement of considerations (48 Fed. Reg. 14,877), with respect to amendment requests received before May 6, 1983,-the Commission intends to keep its present procedures and not provide prior notice of amendments that involve no significant hazards considerations. Since the new Sectior. 2.105(a) (4) (1) adopted in the interim final rule did not. implement our intent with complete clarity, we are revising the final version to make it more explicit.j* Thus, as to any such application for amendment still pending on May 6, the NRC, if the standards of Section 50.58 are satisfied, will issue the amendment and publish a notice of issuance pursuant to Section 2.106. If a hearing is requested before such notice is published, the amendment may nevertheless still be made immediately effective and the hearing granted thereafter. L No corresponding clarification of Section 2.105(a) (4) (ii) is required since, with respect to applications received before May 6, 1983, which involve no significant hazards consideration, the present procedures of the NRC (which remain applicable thereto) do not require a determination that an emergency or exigent situation exists in order to omit a notice of opportunity for a hearing prior to NRC action. Similarly, although Sections 50.58(b) and 50.92 do not explicitly distinguish between applications received before May 6, 1983, and those received thereafter, no clarification of these sections is required since Section 2.105(a) (4) (1), as explained above, now makes the Commission's intent clear.
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We are also clarifying that the notice published under Section 2.105 is a notice of proposed action, which includes a notice of opportunity for a hearing. l
e.
- e..
/' ~ @e uw c rreem 1.OWENSTEIN, NEWMAN, REIs & AXELHAD, P. C, 8035 CONNECTICUT AVENUE, N.W. W AS HI NGTO N, D. C. 2003 6 m oso r..ti. m.v.<t. net..o 3o3.ee3 3400 e......... oo n....... .o...,io. ..,c ws) PoWELL c' Coum.tk c....T........ J.a gf E. ECat. i','l '",; ,'"" May 2, 1983 .er,. . m.... .c46,es.unOgm.m .ot.. ..w Mr. Samuel J. Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Attnt Docketing and Service Branch Ret Interim Final Rules on " Standards for Deter-mining Whether License Amendments Involve No Significant Hazards Considerations" and " Notice and State Consultation" (4 8 Fed. Reg. 14,864-80)
Dear Mr. Chilk:
On April 6, 1983, the Commission published " interim final rules" on the foregoing subjects and requested comments thereon by May 6, 1983. In response to such request, these comments are being submitted on behalf of Iowa Electric Light and Power Company and Florida Power & Light Company. For the reasons set forth in more detail below, we suggest that the regulations and the Commission's intent be clarified as to the situations that could constitute an " emergency" or an " exigency," as to the transitional pro-visions applicabic to requests for amendments roccived prior to May 6, 1983, and as to the use of post-notices under Section 2.106 in lieu of pre-notices under Section 2.105 in specified circumstances. " Emergency Situations" Under new 10 C.F.R. S 50.91(a) (5), the Commission may issue a license amendment involving no significant hazards consideration without prior notice and opportunity for hear-ing "[w]here the Commission finds that an emergency situa-e. D
~ lowansvar2, Nawwut, Cia O Ax n. man P. C. Mr. Samuel J. Chilk May 2, 1983 Page Two tion exists, in that failure to act in a timely way would result in derating or shutdown of a nuclear power plant Neither " shutdown" nor "derating" is defined in the regulation.*/ Although neither term is precise, in our view the logical intent must be for the regulation to include any interruption or reduction in the normally expected supply of electricity from a plant which has been in operation, under circumstances where such interruption or reduction would cause unnecessary economic injury or impact on a generating system. Thus, an " emergency" either could result from an interruption of operation or decrease in operating capacity or could exist because a plant, which has been shutdown or operated in a derated mode, is not permitted to return to operation or to increase its power output. However, a narrower -- and we believe mistaken -- reading of the terms " shutdown" and "derating" might attempt to limit the regulation only to circumstances where a plant is actually in operation and suspension of operation or reduction cf power generation would result unless the license amendment is timely issued. So interpreted, the provision would not apply to an amendment needed prior to return to power by a plant which has not been in operation (e.g., because of refueling, maintenance, interruption of transmission capacity, etc.). Nor would it apply to an amendment re-quired prior to an increase in power output by a plant which, for any one of a number of similar reasons, is operating at a lower level of generation. Because of this ambiguity, we strongly suggest that Section 50.91(a) (5) be amended to make it clear that an emergency situation can exist whenever it is necessary that a plant not in operation return to operation or for a de-rated plant to operate at a higher level of generation. We believe that there is no impediment to this proposal in either Public Law 97-415 itself or its legislative history. i
- /
The discussions of emergencies in the Statement of Considerations (48 Fed. Reg. 14,876, 14,877) does not assist in this Interpretative effort.
( s. Iowsmsvatw, NswmAw, Ezia a Axrtme, P. C. Mr. Samuel J. Chilk May 2, 1983 Page Three on the contrary, our proposal corresponds with our view of the legislative intent. It is clear that Section 12(a) of that legislation does not stand in the way of the proposal. The only relevant language is contained in the new Section 189a(2) (c) which directs the Commission to promulgate regulations establishing (ii) criteria for providing or, in emergency situations, dispensing with prior notice and reasonabic op-portunity for public comment on any such determination, which criteria shall take into account the exigency of the need for the amendment involved: The provision does not define " emergency" or " emergency situations" but it does direct the Commission to "take into account the exigency of the need for the amendment involved." So far as economic need and system reliability are concerned, when power is needed the " exigency of the need" is essentially 1 no different whether powcr is obtainable from a plant which can remain in operation or be operated at a high power level I or from a plant which can be, returned to operation. l We are aware that the language of Section 50.91a(5) is derived from similar language in the Conference Report: In the context of subsection (2) (C) (ii), the conferees understands (sic) the term " emergency situations" to encompass only l those rare cases in which immediate ac-tion is necessary to prevent the shutdown or derating of an operating commercial reactor. (The Commission already has the authority to respond to emergencies involving imminent threats to the public health or safety by issuing immediately effective orders pursuant to the Atomic Energy Act or the Administrative Procedure Act. And the licensee itself has authority to take whatever action is necessary to h-
LowzNsixxx, NzwxAN, Dt] O AxTLaAD, R C. Mr. Samuel J. Chilk May 2, 1983 Page Four respond to emergencies involving imminent threat to the public health and safety.) */ However, the language of the first sentence quoted above has no more precision than does the regulation. On the other hand, the immediately following language contained in the parentheses makes it clear that the term " emergency situations" does not involve " imminent threats to the public health or safety" in the sense that those terms are used in the Atomic Energy Act. Rather the " emergency situations" must relate to other kinds of events and situations, including dislocation because of power outages or inability to return a plant to operation and of economic losses resulting from the unavailability of an economic means of generating power. For the foregoing reasons, we recommend that Section
- 50. 91 (a) (5) be amended by inserting after the words "derating or shutdown of a nuclear power plant" the following words:
(" including any prevention of either resumption of operation or increase in power output)". " Exigent Circumstances" At 48' Fed. Reg. 14,877 the commission explains an " exigency" as a situation "where a licensee and the Con-mission must act quickly and where time does not permit the Commission to publish a Federal Regictor notice soliciting public comment or to provide 30 days ordinarily allowed for public comment." We agree with the breadth of that definition by the Commission. However, the two examples then given by the Commission appear to us unnecessarily narrow since both involve obvious improvements in safety and both involve potentially lost opportunities to implement such improve-ments during a plant outage. Although no amendment to the regulations is required, we suggest tr.at the Commission make clear that these examples were not meant to be limiting in any respect, and that a determination of " exigency" can be considered whenever a proposed amendment involves no sig-nificant hazards consideration and the licensee can demon-strate that avoiding delay in issuance will provide a sig-nificant benefit (safety, environmental, reliability, economic, etc.).
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H.R. Rep. No. 884, 97th Cong., 2nd Sess. 38 (1982). I
.m g. y
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LOWEN7,TEIN, NEwMAN, Rzza Cr AxEthAD, RL ,s p Mr. Sanuel d'." Ch' ilk ~ , - ~ May 2, 1983 e Page.Five_. ces s, ' Amendment Requests Received Before May 6, 1983' ~ In its statement of considerations (48 Fed. Reg. 14,877), the Commission specified that, with respect to amendment requests received before May 6, 1983, the Com-mission. intends to keep its present procedures and not provide pilor notice of amendments that involve no sig-nificant hazards considerations. In our view, not only is this approach valid and appropriate under the statute, but it is essential in.crder to avoid both..the potential logjam in NRC licensing avtivities that could result from the pub 31~ cation of an Omnibus listing of pending amendment request ( and the unnecessary delays that could rectult in the processing of any particular pending req,uest. To assure that. the foregoing Commission inten't is carried out, how-ever, we believe that the newly adopted Section 2.105(a) ~ (4) (i)- should be clarified. As promulgated, the section does not explicitly distinguish between requests rece{ved before May 6 and those received thereafter. In order,~to avoid reliance solely on the Commission's statement'of its intent we suggest that the regulation be amended as follows: In Section 2.105 (a) (4) (i), delete the words "though it wil'1 provide notice of opportunity for a hearing pursuant to l this section,", and substitute the following: "though it j will publish a notice of proposed action pursuant to this j section (except in the case of an application for amendment received prior,to May 6, 1983, where it will instead publish ] a notice of issuance pursuant to S 2.106),". Several of the other contemporaneous 1y adopted regula-tions also.do not deal axplicitly with amendment requests filed before May 6, 1983. Although corresponding clarifica-tions could be considered, we do not believe that they are necessary. In order to-avoid any misunderstanding as to the Commissisn's intent, however, we urge that the Commission explain cleap.17,tivy overall effect of the new regulations on cmendment requests still pending on May 6. For the con-venience of;th'e commission, we enclose a proposed explana-tion which could_be published in the statement of considera-tions dealing with the revision of the interim rule. .3 m. ~ x
- Vk g
A W w l
d.' Lownwxtw, NawuAx, Rats O Ax 1.cAn, P. C Mr. Samuel J. Chilk May 2, 1983 Page Six Issuance of Post-Notices Under Section 2.106 It is the obvious intent of the new Section 2.105(a) (4) (ii) that, under the circumstances there specified (a determination of an emergency or exigent situation and an amendment involving no significant hazards consideration), a notice of proposed action would not be published under Section 2.105 and, instead, a notice of issuance would be published under Section 2.106. However, to avoid the possible misunderstanding that the Section 2.106 notice is in addition to, and not a. substitute for, a Section 2.105 notice, we suggest that the regulation be amended as follows: In Section 2.105 (a) (4) (ii), delete the words "it will provide notice of opportunity for a hearing pursuant to I S 2.106" and substitute the following: "instead of publishing a notice of proposed action pursuant to this section it will publish a notice of issuance pursuant to S 2.106". Although this amendment might be viewed as an overabun-dance of caution, we believe it to be desirable to avoid possible future controversy. ery truly yours, t Lowenstein, Newm n, Reis & Axelrad KHS:jcj Attachment bec: William Olmsted
o* ATTACHMENT Proposed Statement Pertaining to Amendment Requests Received Before May 6, 1983 As was indicated in the statement of considerations (48 Fed. Reg. 14,877), with respect to amendment requests received before May 6, 1983, the Commission intends to keep its present procedures and not provide prior notice of amendments that involve no significant hazards considerations. Since the new Section 2.105 (a) (4) (i) adopted in the interim final rule did not implement our intent with complete clarity, we are revising the final version to make it more explicit.*/ Thus, as to any such application for amendment still pending on May 6, the NRC, if the standards of Section 50.58 are satisfied, will issue the amendment and publish a notice of issuance pursuant-to Section 2.106. If a hearing is requested before such notice is published, the amendment may nevertheless still be made immediately effective and the hearing granted thereafter. No corresponding clarification of Section 2.105 (a) (4) (ii) is required since, with respect to applications received before May 6, 1983, which involve no significant. hazards consideration, the present procedures of the NRC (which remain applicable thereto) do not require a determination 'that an emergency or exigent situation exists in order to omit a notice of opportunity for a hearing prior to NRC action. Similarly, although Sections 50.58(b) and 50.92 do not explicitly distinguish between applications received before May 6, 1983, and those received thereafter, no clarification of these sections is required since Section 2.105(a) (4) (i), as explained above, now makes the Commission's intent clear.
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We are also clarifying that the notice published under Section 2.105 is a notice of proposed action, which includes a notice of opportunity for a hearing.
~~ ~ ggj4 poz cc: Dircks I_ ~ RsSp0NSESHFET 0'h s
- -an. _
hj,pu }y ~ (i ~':1" TO: SAMUEL J'. CHILK, SECRETARY OF THE COMMISSION ibi >d FROM: COMMISSIONER ASSELSTINE L'd f [/
SUBJECT:
STANDARDS FOR DETERMINING WHETHER LICENSE AMENDMENTS INVOLVE NO SIGNIFICANT HAZARDS CONSIDERATIONS 10 CFR PART 50 - MAjiCH 29, 1983 VERSION - APPROVED / DISAPPROVED ABSTAIN NOT PARTICIPATING REQUEST DISCUSSION COMMENTS: ~.- lh, - o, _f / SIGNAIURt. / .?-3e P3 s:3u(.4'/.DMdi_ if DAlb SECRETARIAT NOTE: PLEASE ALSO RESPOND TO.AND/OR COMMENT ON.0GC/0PE MEMORANDUM IF ONE HAS BEEN ISSUED ON THIS PAPER. 'NRC-SECY FORM DFc. 80}}