ML20155C254

Affirmation Response Sheet Approving as Modified in Encl, SECY-83-16B Re Revised Regulations to Implement Legislation on Temporary OL Authority & Nshc.Addl Documentation Encl

ML20155C254
Person / Time
Site:	05000000
Issue date:	03/15/1983
From:	Roberts NRC COMMISSION (OCM)
To:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
Shared Package
ML20150F521	List: ML20150F948 ML20150F999 ML20151B441 ML20151C135 ML20151E096 ML20151H083 ML20151H215 ML20151H792 ML20151H796 ML20151H923 ML20151H945 ML20151J034 ML20151K729 ML20151K824 ML20151K921 ML20151K924 ML20151L082 ML20151L310 ML20151L359 ML20154M312 ML20155B192 ML20155B196 ML20155B200 ML20155B205 ML20155B208 ML20155B391 ML20155B456 ML20155B483 ML20155B495 ML20155B576 ML20155B608 ML20155B613 ML20155B684 ML20155B699 ML20155B720 ML20155B861 ML20155B976 ML20155C010 ML20155C048 ML20155C076 ML20155C109 ML20155C161 ML20155C169 ML20155C189 ML20155C196 ML20155C201 ML20155C206 ML20155C214 ML20155C254 ML20155C258 ... further results
References
FRN-45FR20491, RULE-PR-2, RULE-PR-50 AA61-2-113, NUDOCS 8604160513
Download: ML20155C254 (46)

Text

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RESPONSE SHEET p

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SAMUEL J. CHILK, SECRETARY OF THE COMMISSION

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FROM:

C0 MISSIONER ROBERTS 4

SUBJECT:

SECY-83-16B - REVISED REGULATIONS TO IMPLEMENT LEGISLATION ON (1) TEMPORARY OPERATING LICENSING AUTHORITY AND (2) NO

'y N3 SIGNIFICANT HAZARDS CONSIDERATION (THE "SHOLLY AMENDMENT")

- SECY-83-16 AND 83-16A APPROVED k DISAPPROYED ABSTAIN'

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NOT PARTICIPATIN REQUEST DISCUSSION COMMENTS:

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B604160513 860327 2

SFR 0491 PDR

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UAlt SECRETARIAT NOTE:

PLEASE ALSO RESPOND TO. AND/OR COMMENT ON.0G MEMORANDUM IF ONE HAS BEEN ISSUED ON THIS PAPER.

' NRC-SECY FORM DEC. 80

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clearly contemplate. that the procedural framewohk is both useful and needed to govern the Comission's actions in exercising the new authority and to preserve for the public its right to participate in licensing decisions.

Procosed Suboart C to 10 C.F.R. Part 2

" Procedures Under Section 192 for tne Issuance of iemocrary Doerating Licenses."

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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 hearing requirements of section 189a. of the Act nor to the requirements of P'

subparts A or all the recuirements of subpart G of the Rules of Practice in

{

110 C.F.P.- Part 2.

However, certain sections of subpart G would be applied to idsolve needless controversy about such items as the filing of papers, service on parties, and so on.. These are 10 C.F.R. I 2.701, 2.702 and 2.708 - 2.712, relating to service and filing of documents, maintaining a docket, and time computations and extensions; i 2.713, relating to appearance and practice before the Comission; 6 2.758, g2nerally prohibiting ' challenges to the Cc= mission's rules; and i 2.772, generally granting the Comission's Secretary the authority to rule on procedural matters.

It should be noted

~ that 10 C.F.R. % 2.719 and 2.780, relating to separation of functions and ex carte communications, would not apply.

This would mean that the Comission's staff, ap'olicants and intervenors would be free to contact individual Comissioners as well as the Comission's Office of General cUscuss Counsel and Office of Policy Evaluation to r;= th: P cs.mcu.c g aitic.n ogec0 medn$c b M Y A U P vole.

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-aa-the temocrary operatine license.

The Comission is sensitive to the concern that informal contacts should not be extensive and that they shculd not result in significant data or argument that is both relied on-by the Comission in its temocrary operating licensinc decision and unavailable to the parties c' ;;rt; ;n.t_ u ir th; g-geg for co=ent before the decision.

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-n:t c;c.tc..-i c.;;; sci a d % iicensioy proceeduiys.

The Commission's decision not to apoly separation of functions'and ex parte rules to temporary

' ooerating licensing is based on the belief that operating licensing and temocrary ooerating licensing proceedings on a given plant are separate proceedings for the puroose of acclication of the fomal hearino reouirements of the Administration Procedure Act (APA).

The amendment to section 192 of the Atomic Eneroy Act (Act) states that section 189a. of the Act does not

. cooly to a temocrary operating licensing proceeding; thus, if section 189a.

does not acoly, then the APA's formal hearing recuirements do not apoly either.

Consecuently, the Comission's consideration of rivate co=unications with the parties in a temporary operating licensing proceeding would not prevent the Comission from eventually censiderino, as necessary, issues arising from the operating licensing proceeding.

In this context, it bears mention that the Conference Comittee noted that, under section 192, the Comission cannot issue a temporary operating license before "all significant safety issues specific to the facility in question have been resolved to the Comission's satisfaction."

See Conf. Rep. No.97-884, 97th Cong., 2d Sess. 35 (1982).

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te-isvelve-a-signifieast-kazardsceensideratiehs-aseerdinglys-a-mew-exasple (v??? -has-been-added-te-the-list-ef-examples-in-i-59,92(b)(1}-te-make eiear-that-a-veraek4sg-ef-a-spest-fwel-sterage-peel-shewid-be-treated-48 the-same-way-as-an-example-sensidered-44hely-te-4RVe V4Rg-a-sigR4f4e&Rt hazards-eensideratient--Hete-thats-WRder-i-13A-ef-the-MWelear-Waste-Eel 4ey

,Aet-ef-1982 a-hea74sg-4s-held-in-senneetien-with-this-type-ef-examples 3

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'bs t s N, 4t-wewid-take-the-ferm-ef-a 'Jhybrid"-hearingr has been oroviding, as a s

matter of oublic interest, prior notice and an opportunity for a prior hearing on amendment' recuests involving this issue.

As explained in the separate FEDERAL REGISTER notice, it will continue to offer prior notice for public comment of these and other amendment reouests.

It is not orecared to say, though, that a reracking of a spent fuel storage pool should or should not be treated in the same way as an example considered likely or not likely to involve a significant hazards consideration.

"Each such amendment reouest should be treated with respect to its own intrinsic circumstances, using the standards in i 50.92 of the rule to make a judgment about significant hazards considerations.

Consecuently, the Commission has decided not to include reracking of a spent fuel storage cool in the list of examoles or in the rule.

If it does determine that a particular reracking involves significant hazards considerations, it will provide an accortunity for a prior hearing, as exclained in the separate FEDERAL REGISTER notice.

Additionally, it should be noted that under section 134 of the Nuclear Waste Policy Act of 1982, an interested

""'--w-party may recuest a " hybrid" hearing;= ^'

?-- '*? in connection sith reracking, and may participate in such a hearing, if one is held.

The Commission will publish in the near future a FEDERAL e

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m ep or ! 50.22 or for a testing fa~cility will likely be found to involve significant hazards considerations, if operation of the facility in accordance with the proposed amendment it.volves one or more of the following:

(i) A significant relaxation of the criteria used to establish g

safety limits.

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(ii) A significant relaxation of the bases for limiting safety system settings or limitin.g 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 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 safety margins :f :=: significan$

reduced from those believed to have been present when the license was issued.

(v444}--Revask4ng-ef-a-spent-fwel-S%9Fage-p994r

.(viii)

Permitting a significant increase in the amount of effluents or radiation emitted by a nuclear power plant.

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UNITED STATES 21 NUCLEAR REGULATORY COMMIS$10N

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M 3 0 1983 MEMORANDUM FOR: William Olmstead Regulations Division Director and Chief Counsel, ELD Edson G. Case, Deputy Director Office of Nuclear Reactor Regulation FROM:

G. Wayne Kerr, Director Office of State Programs

SUBJECT:

NOTIFICATION TO GOVERNORS' STATE DESIGNEES FOR NO SIGNIFICANT HAZARDS CONSIDERATION, SECY-83-16B Attached is a list of State designees to be used in carrying out the State consultation procedures for no significant hazards consideration for licensing amendments involving operating power reactors and test facilities.

Also attached is a suggested draft letter to be sent to each Governor notifying him of his State's designee. The State designees are presently receiving copies of all Licensee. Event Reports for operating reactors and test facilities in their States.

Please let me have your coments on the enclosed draft letter to the Governors by C.O.B. April 4, so that we can have the letters reatly to mail when the Federal Register Notice is signed.

After receiving your concurrence we will have Document Control set up the list of State designees in their system. We would expect NRR to transmit the list of State designees to appropriate licensees.

If you have any questions regarding the letter or list, please contact Sue Weissberg at 492-9877.

hl G. Wayn Kerr, Director Office of State Programs cc:

T. Rehm

Enclosures:

1.

List of State Designees 2.

Draft Ltr to Governors

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.-_._..m._.1 DRAFT GOVERNOR LETTER

's Dear Governor The Comis.sion is preparing to adopt #mendments to its "Me:; Mulationsk to reflect Public Law 97-415., enacted January 4,1983. Y O*

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to issue-temporary-m> =tirg 1!::- s -

gislation directs the Commission to promulgate, within 90 days of enactment, regulations which establish (a) standards for determining whether an amendment to an operating license involves no significant hazards consideration, (b) criteria for providing, or in emergency si"uations for dispensing with, prior notice and opportunity for public coment on such a determination, and (c) procedures for consultation on such a determination with the State in which the facility involved is located.

WithregardtotheStat!e t 6 l(d [*f /p E,,.

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guuh consultation procedures f:r Pdit: ' = 07

• A y(oa r- /NN, Q Mr. (Name and Title) is the designated State contact for State b w.

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% s preseqtly receiving copies of all NRC licensee event reports, n

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To implement thi legislation, the Comislio'n has prepared the enclosed regulations s

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for publication in the Federal Regis_ter. The Statement of Consideration describes (t

4 and explains -the. ;;92He in detail. A public announcement is also enclosedg /g N u r-i c A ry-A h,

Sincerely, William J. Dircks Executive Director for Operations

Enclosures:

As stated cc: State Liaison Officer State Designee L

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State Designees "No Significant Hazards" Alabama Ira L. Myers, M.D., State Health Officer State Department of Public Health State Office Building Montgomery, Alabama 36130 Tel.:

(205) 832-3120 Arkansas E. Frank Wilson, Director Division of Environmental Health Protection Department of Health 4815 West Markham Street Little Rock, Arkansas 72201 Tel.:

(501) 661-2301 California Joseph 0._ Ward, Chief

~

Radiological Health Branch State Department of Health Services 714 P Street, Office Building #8 Sacramento, California 95814 Tel.:

(916)322-2073 Colorado Albert J. Hazle, Director Radiation Control Division Department of Health 1

4210 East lith Avenue l

Denver, Colorado 80220 Tel.:

(303) 320-8333. Ext 6246 t

Connecticut Arthur Heubner, Director Radiation Control Unit Department of Environmental Protection State Office Building Hartford, Connecticut 06115 Tel.: (203)566-5668 Florida Ulray Clark, Administrator Radiological Health Services Departnent of Health and Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, Florida 32301 Tel.:

(9u4)487-1004

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Georgia l

James G. Ledbetter, Comissrioner Department of Human Resources 47 Trinity Avenue-Atlanta, Georgia 30334 Tel.:

(404)656-5680 Illinois Mr. Gary N. Wright, Manager

-Nuclear Facility Safety Illinois Department of Nuclear Safety 1035 Outer Park Drive, 5th Floor Springfield, Illinois 62704 Tel.:

(217)546-8100 Iowa Thomas Houvenagle Regulatory Engineer Iowa Commerce Comission Lucas State Office Building Des Moines, Iowa 50319 Tel.:

(515) 281-6592 Louisiana William H. Spell, Administrator

_ Nuclear Energy Division

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Office of Environmental Affairs P.O. Box 14690 Baton Rouge, Louisiana 70898 Tel.:

(504)925-4518 4

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Maine i

Wallace Hinckley, Manager Radiological Health Program Department of Human Services State House, Station 10 Augusta, Maine 04333 Tel.:

(207) 289-3826 Maryland Robert Corcoran, Chief Division of Radiation Control Department of Health and Mental Hygiene 201 West Preston Street Baltimore, Maryland 21201 Tel.:

(301) 383-2744

. 1:

Massachusetts r

Robert M. Hallisey, Director Radiation Control Program Massachusetts Department of Public Health 600 Washington Street, Room 770 02111 Boston,(Massachusetts 617)727-6214 Tel.:

Michigan Mr. Ronald Callen Supervisor Advance Planning and Review Section Michigan Public Service Commission

'6545 Mercantile Way P.O. Box 30221 5-48909 Lansing (, Michigan 517) 373-8690 Tel.:

Minnesota John W. Ferwan, Ph.D.

Nuclear Engineer Minnesota Pollution Control Agency 1935 W. County Road B2 Roseville, Minnesota 55113 Tel.:

(612)296-7276 Mississippi Alton B. Cobb, M.D., State Health Office State Board of Health P.O. Box 1700

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Jackson, Mississippi 39205 r'

Tel.:

(601) 354-6646 Nebraska H. Ellis Simmons, Director Division of Radiological Health Department of Health 301 Centennial Mall, South P.O. Box 95007 Lincoln, Nebraska 68509 Tel.:

(402)471-2168 New Jersey Frank Cosolito, Acting Chief Bureau of Radiation Protection Department of Environmental Protection:

380 Scotch Road 08628 Trenton, New Jersey Tel.:

(609)292-5586

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New York Jay Dunkleberger_

r Division of Policy Analysis and Planning New York State Energy Office Agency Buil. ding 2, Empire State Plaza Albany,(NewYork518)474-2178 12223 i

Tel.' :.

North Carolina Dayne H. Brown, Chief Radiation Protection Branch Division of Facility Services Department of Human Resources e

P.O. Box 12200 Raleigh, North Carolina 27605 Tel.:

(919) 733-4283 Ohio i

Helen W. Evans, Director Division of Power Generation Ohio Department of-Industrial Relations

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P.O. Box 825 Columbus, Ohio 43216 Tel.:

(614) 466-2743 Oregon r

Donald W. Godard, Administrator i

Siting and Regulation Oregon Department of Energy l

Room 111, Labor and Industries Building i

Salem, Oregon 97310 l

Tel.: -(503) 378-6469 i

Pennsylvania Thomas M.'Gerusky, Director Bureau cf Radiation Protection Pennsylvania Department of Environmental Resources P.O. Box 2063 Harrisburg, Pennsylvania 17120 Tel.:

(717) 787-2480 South Carolina l

Heyward G. Shealy, Chief Bureau of Radiological Health South Carolina Department of Health and Environmental Control 2600 Bull Street Columbus, South Carolina 29201 Tel.:

(803) 758-5548 r

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Tennessee Michael H. Mobley, Directon Division of Radiological Health T.E.R.R.A. Building

- 150 9th Avenue North' Nashville, Tennessee 37203 Tel.:

(615) 741-7812 Vermont Richard Saudek, Commissioner Vermont Department of Public Service 120 State Street Montpelier, Vermont 05602 Tel.:

(802)828-2321 Virginia James B. Kenley, M.D., Commissioner Department of Health 109 Governor Street Richmond, Virginia 23219 Tel.:

(804)786-3561 Wisconsin Clarence Riederer, Chief Engineer Wisconsin Public Service Commission P.O. Box 7854 Madison, Wisconsin 53707 Tel.:

(608) 266-1567 k

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,f UNITED STATES NUCLEAR RE2ULATORY COMMISSION 2

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f "g ******e March 29,' 1983 h.

MEMORANDUM FOR:

Chairman Palladino Commissioner Gilinsky Commissioner Ahearne Commissioner Roberts Commissioner Asselstine FROM:

/.

Herzel H. E. Plaine, General Counsel

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SUBJECT:

SHOLLY REGULATIONS - SECY-83-16B (ENCLOSURE 3)

At last Friday's Commission meeting we made two substantive comments regarding the rulemaking notices in SECY-83-16B.

It was requested that we summarize the comments in writing, which relate to the treatment of (1) amendments having irreversible effects,

.and (2) NRDC's comment on the proposed rule.

We do so below and attach to this paper revisions to the Sholly regulations jointly developed by this office and ELD which partially answer OGC's concerns.

(1)

Irreversible Amendments The Sholly legislative history is very clear that, while

" irreversibility" is not the equivalent of "significant hazards consideration", the Commission is to be especially careful in examining amendments with irreversible consequences under the "no significant hazards consideration" statutory criterion.

Two examples of such " irreversible" amendments are offered in the legislative history -- an amendment authorizing operation with less than the full complement of safety systems operable, and an amendment authorizing an increase in allowable radioactive effluents from normal operation.

Joint Explanatory Statement of Conferees at 32, 38, Cong. Rec. S 13506, S 13292 (Oct. 1, 1982),

H 8823, 8825 (Dec. 21, 1982).

The proposed response to this concern is set forth in the rule preamble at page 24.

The two examples cited in the legislative history are included in the preamble's listing of amendments likely to involve a significant hazards consideration.

However, it is not at all clear how the effluent increase example fits within the rule itself, which is controlling over the examples and which, as drafted, does not appear to contemplate that gag effluent increase could ever fail the "no significant hazards consideration test".

i contacts:

Martin G. Malsch, OGC, 41465 Michael B. B'lume, OGC, 41493 e

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'(2)'

NRDC Comment NRDC filed opposing comments on the proposed rule.in 1980.

It argued that the proposed rule impermissibly intertwined the determination of "no significant hazards consideration" with the ultimate decision on the merits of the amendment itself -- the "no undue-risk" finding.

NRDC argued in support of this view that despite the Commission's ostensible intent to use the three l

proposed criteria regarding probat'.lities and consequences of accidents, types of accidents, and margins of safety, NRC safety

[

evaluations do not contain any useful information on the probabilities'or_ consequences of particular accident sequences, do not categorize " types" of accidents, and do not specify l

" margins of safety."

Because NRC reviewers would have no I

meaningful information on which to make conclusions based on these criteria, NRDC argued, the criteria were meaningless and j

would lead NRC reviewers to conclude simply that if an amendment was safe, then it presented no significant hazards consideration.

The comment is. equally applicable to the draft final rule since the text of the proposed and draft final rule are nearly the same.

Moreover, Congress agreed with the essential premise of the NRDC comment -- that the no significant hazards consideration statutory criterion should not be confused with the no undue risk standard for the merits of the amendment.

E.g.,

S. Rep. No.97-113 at 15; Joint Explanatory Statement of Conferees at 37.

However, the notice of rulemakin'g does not respond to this NRDC comment.

NRC has an obligation to respond to comments of this

. sort.

Part of the response can be found in the legislative history which, on the Senate side, includes the following colloquy discussing the NRC's proposed rules:

Mr. DOMENICI.

Indeed, prior to the court decision NRC had already proposed regulations to which I have referred.

NRC's approach is a tough one which appears responsible [ sic] to the expressed intention of the conference report that its standards should to the extent practicable draw a distinction between those

)

amendments which do or do not involve a "significant l

hazards" determination.

Accordingly, I would like the gentleman's assurance that nothing in the bill or conference report is intended to relax or in any way restrict the stringent standards which NRC has in the past and now proposes to continue to apply in making such determinations.

Mr. Simpson.

You have my assurance.

My friend from New Mexico is indeed correct.

Cong. Rec. S 15315 (Dec. 16, 1982).

See also H.R. Rep. No.

97-22, Part 2 at 26; S. Rep. No.97-113 at 15.

However, ultimately NRC must use its own technical judgment in analyzing and responding to the comment.

3 As noted above, we have discussed both of these concerns with staff, reaching full agreement on the first problem (see Enclosure at 24-28,38), and partial agreement on the second (see Enclosure at 17-18).

Our partial agreement on the second problem can be seen from a review of the revisions to.the "Sholly rule" preamble (at 17-18), where an argument similar to that set out above, which relies on Congress' awareness and apparent endorsement of the proposed standard to respond to the NRDC comment, has been added.

However, the staff could not agree with us that a technical justification for th, 50.92 (no significant hazards consideration) criteria in response to the NRDC comments was both possible and necessary.

We realize that it may be late at this point to put such a statement into the interim final rule.

Hence, we recommend that the Commission request the staff to draft a technical response to the NRDC comment within a week so that the Commission will have time to evaluate it for use in the preambic to the eventual final rule.

We make this recommendation in light of severe judicial criticism in several recent review proceedings for doing a poor job in drafting technical and policy justifications for rulemaking decisions.

If we leave the Sholly rule in its present form, it could inspire similar criticism.

Attachment:

Revision to SECY-83-16B, cc:

OPE SECY ELDw/'

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[7590-01]

NUCLEAR REGULATORY COMf11SSI0ft 10 CFR Part 50 Standards for Determining Whether License Amendments Involve.No Significant Hazards Considerations AGENCY:

Nuclear Regulatory Comission.

ACTION:

Interim final rule.

L SUPNARY:

Pursuant to Public Law 97-415, NRC is amending its regulations to specify standards for determining whether requested ' amendments to operating

~ licenses.for certain nuclear power reactors and testing ' facilities involve no significant ha.:ards considerations. These standards will help NRC in its evaluations of these requests.

Research reactors are not covered.

However, the Comission is reviewing the extent to which and the way such standards should be applied to research reactors.

EFFECTIV'E DATE:

The Comission specifically requests comments 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 as to comments received on or before-this date.

• /

~30 days following publication in the FEDERAL REGISTER. This footnote will be deleted after the Comission has acted.

[r L ADDRESSES: Written coments should be sent to the Secretary of the Comission, U.S. Nuclear Regulatory Comission, Washington, D. C. 20555, Attention: Docketing and Service Branch.

Copies of the documents discussed in this notice and of the coments received on the proposed rule and interim final rules may be examined in the Comission's public Document Room at 1717 H Street, N.W., Washington, D. C.

FOR FURTHER INFORMATION CONTACT:

Thomas F. Dorian, Esq., Office of the Executive Legal Director, U.S. Nuclear Regulatory Comission, Washingtcn, D.C. 20555. Telephone:

(301)492-8690.

SUPPLEMENTARY INFORMATION:

INTRODUCTION Pursuant to Public Law 97-415, NRC must promulgate, within 90 days of enactment, regulations which establish (a) standards for determining whether an amet.dment to an operating license involves no significant hazards considerations, (b) criteria for providing or, in emergency situations, for dispensing with prior notice and reasonable opportunity for public coment on any such determination, and (c) procedures for consultation on any such determination with the State in which the facility involved is located.

Proposed regulations to specify standards for determining whether amendments to operating licenses or construction permits for facilities licensed under 99 50.21(b) or 50.22 (including testing facilities) involve no significant

, hazards considerations (item (a) above) were published for coment in the FEDERAL REGISTER by the Comission on March 28, 1980 (45 FR 20491).

Since the Comission rarely issues amend;nents to construction permits and has never issued a construction permit amendment involving a significant hazards consideration, it has decided not apply these standards to amendments to construction permits and to handle these case-by-case. This is in keeping with the legislation which applies only to operating license amendments.

Additionhlly, these standards will not now be applied to research reactors.

The Comission is currently reviewing whether and how it should apply these or similar standards to research reactors.

In sum, the interim final rule will amend Part 50 of the Comission's regulations to establish standards for determining whether an amendment to an operating license involves no significant hazards consideration.

The rule takes account not only of the new legislation but also the public coments received on the proposed rule.

For the sake of clarity, affected prior legislation as well as the Comission's regulations and practice are discussed as background information.

Simultaneously with the promulgation of these standards in 5 50.92, the Comission3-as-required-by-the-new-legislatten, is publishing an interim final rule which contains criteria for providing or, in emergency situations, for dispensing with prior notice and reasonable opportunity for and public coment on a determination about whether an amendment to an operating license involves a significant hazards consideration (item (b) above).

This rule also specifies procedures for consultation on any such a

, determination with the State in which the facility involved is located (item (c)'above).

The rule appears separately in the FEDERAL REGISTER.

These regulations are issued as final, thcugh in interim form, and comments will be considered on them. 'They will become effective 30 days after publication in the FEDERAL REGISTER. Accordingly, interested persons who wish to connent are encouraged to do so at the earliest possible time, but not later than 30 days after publication, to permit the fullest consideration of-their views.

BACKGROUND A.

Affected Legislation, Regulations and Procedures When the Atomic Energy Act of 1954 (Act) was r.dopted in 1954, it contained no provision which required a public hearing on issuance of a construction permit or 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 construction permit and an operating license for power reactors and certain other facilities.

Public l aw 85-256 (71 Stat. 576) amending 9 189a. of the Act.

The 1957 amendments to the Act were interpreted by the Commission as requiring a " mandatory hearing" before issuance of amendments to construction permits and operating licenses.

(See,e.g.,HearingBefore the Subcommittee on Legislation, Joint Committee on Atomic Energy, 87th Cong., 2d. Sess. (April 17, 1962), p. 6.) Partially in response to the administrative rigidity and cumbersome procedures which this g.

7 en

. interpretation forced upon the Comission (see, Joint Comittee on Atomic Energy Staff Study, " Improving the AEC Regulatory Process", March 1961, pp. 49-50), 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 permit for a power or testing facility.

As stated in the report of the Joint Committee on Atomic Energy which recommended the airendments:

l Accordingly, this section will eliminate the requirements for a mandatory hearing, except upon the application for a construction permit for a power or testing facility. Under this plan, the issuance of amendments to such construction permits, and the issuance of operating licenses and amendments to such construction permits, and the issuance of operating licenses and amendments to 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 amendment to a construction permit, or issuance of l

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 Commission to dispense with the 30-day notice requirement where the application presents no significant hazards consideration. This criterion is presently 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 hazards consideration."

In sum, section 189a. of the Act, now provides that, upon thirty-days' notice published in the FEDERAL REGISTER, the Commission 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 k.-

g

._ by any interested person.

Section 189a..also permits 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 determination by the Comission that the amendment involves no significant hazards consideration.

These

-provisions have been incorporated into 952.105,2.106,50.58(a)and(b) and 50.91 of the Comission's regulations.

The regulations 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 55 2.105(a)(3) and 50.91.

Hence, if a requested license amendment is found to involve a si5nificant 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 FE05RAL REGISTER on each application for a construction permit for a production or utilization facility which is of a -type described in 5 50.21(b) or 9 50.22 or which is a 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 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 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 Comission finds that no significant hazards consideration is presented by an application for an amendment to a construction permit or operating

I license, it may dispense with such notice and publication and may issue the amendment.

Thus, it is very importint to note that a determination that a proposed

}

license amendment does or does not present a "significant hazards consider-ation" has-geReFally-beer-60Wpled-te-nwhas involved the hearing and

[

I attendant notice requirements.

Consequently, under its present rules the w

?

Commission has generally coupled its determination about whether it should v

4sswe-aR-ameRdRORt provide a hearing before issuing an amendment with its determination about whether it should issue a prior notice, afteF-the-fast, and the central factor in both determinations has been the determination about "no significant hazards consideration."

It_has been charged that in

/

practice this has meant that the staff has sometimes coupled the decision 1

about the merits of an amendment to the decision about when it should notice the amendment, i.e., whether it should give prior notice or post notice.

Additionally, there has been some concern that the Act and the regulations have not defined the term "significant hazards consideration" and that they have not established criteria for determining when a proposed amendment involves a "significant hazards consideration." Section 50.59 does set I

forth criteria for determining when a proposed change, test or experiment involves an "unreviewed safety question," but it is clear that not every such question involves a "significant hazards consideration."

In any event, the Connission's practice with regard to license amendments involving no significant hazards consideration (unless, as a matter of discretion, E

prior notice was given) was to issue the amendment and then publish in the FEDERAL REGISTER a notice of issuance.

See 9 2.106.

In such a case, interested members of the public who wished to object to the amendment and 1

i i

. 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, have occurred after the amendment was issued.

~

It is aise very, important to bear in mind that there is no intrinsic safety ~

l significance to the "no significant hazards consideration" standard.

Whether or not an action requires prior notice, no license and no amendment may be issued unless the Comission concludes that it provides reasonable assurance that the public health and safety 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., 5 50.57(a). _ Also, whether or not an amendment entails prior notice, no-amendment to any license may be issued unless it conforms to all applicable Comission safety standards. Thus, the "no significant hazards consideration" standard has been a procedural standard only, governing whether public notice of a proposed action must be provided, before the action is taken by the Comission.

In short, the "no significant hazards consideration" standard has been a notice standard and has had no substantive safety significance, other than that attributable to the process of prior notice to the public and reasonable opportunity for a hearing.

B.

The Sholly 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

7....

p t

[

9-(1980)t..rehiearingdenied,651F.2d792(1980), cert. granted 101 S.Ct.

9 3004 (1981) (Sholly). -In that case the U.S. Court of Appeals for the District of Co)umbia Circuit ruled that, under section 189a. of the Act,

/?

c

.NRC must h'old.'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 oftheproposed?amendmentwhichissufficienttoconstitutearequestfor s

p

[

a hearing). A prior hearing, said the Court, is required even when'NRC I

hasmade;a0findinhthataproposedamendmentinvolvesnosignificant hazards considera, tion and has det' ermined to dispense with prior notice in the FEDERAL REGISTER. At the request of-the Comission and the Depart-ment of Justice, the Supreme Court agreed to review the Court of Appeals' interpretation of section 189a. of the Act. The Supreme Court has net yet-astederemanded the case to the Court of Appeals with instructions to FeG9RSideF-4%-4R-light-Of-the-leg 4Sla%40Rt vacate it if it is moot and, if it is not, to reconsider its decision in light of the new legislation.

The Court of Appeals' decision did not involve and has no effect upon the Comission's authority to order immediately 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. 5 558(c),

section 161 of the Atomic Energy Act, and 10 C.F.R. 55 2.202(f) and 2.204.

Similarly, the Court did not alter existing law wit.h 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 is,

p I whether the person has demonstrated standing and identified one or more issues to be litigated. See, BPI v. Atomic 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 Comission to require that the prospective intervenor first specify the basis for his request for a hearing."

i However, 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 L

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 unwarranted disruption or delay in the operations of nuclear power plants and could impose regulatory burdens upon it and the nuclear industry that are not related to significant safety matters.

Subsequently, on March 11, 1981, the Comission submitted proposed legislation to Congress (introduced as S.912) that would expressly authorize it to issue a license amendment before holding a hearing requested by an interested person, when it has made a determination that no significant hazards consideration is involved in the ainendment.

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

c

.i.

.. 'following with respect-to license amendments involving no significant hazards consideration:

(2)(A) The Comission may issue and make immediately effective any amendment to an operating license, upon a determination 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 determining 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 cate of publication of the last such periodic notice.

Such notice shall, with respect to each amendment or proposed amendment (1) 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 determining whether any amendment to an operating license' involves no significant hazards consideration; (ii) criteria for providing or, in emergency situations, dispensing with prior notice and reasonable opportunity for public coment on any such determination, 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."

Section 12(b) of that law specifies that:

(b) The authority of the Nuclear Regulatory Comission, 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 immediately effective an amendment to an operating license upon a determination that the amendment involves no significant hazards

x '

consideration, even though NRC has before it a request for a hearing from an interested person. At the same time, however, the legislative history makes it clear that Congress expects NRC to exercise its authority only

-in the case of amendments not involving significant safety questions.

The 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.

Id. at p. 37.

In this regard, the Senate stressed:

its strong desire to preserve for the public a meaningful right to participate in decisions regarding the comercial use of nuclear power. Thus, the provision does not dispense with the requirement for a hearing, and the NRC, if requested [by an interested person],

must conduct a hearing after the license amendment takes effect.

S. Rep. No.97-113, 97th Cong., 1st Sess. 14 (1981).

It should be also noted, in light of the previous discussion about the coupling of the decision on the merits of an amendment with the decision about when to notice the amendment, that Section 12 of Public Law 97-415, by providing for pri'r public notice and comment, in effect uncouples the determination about 9rior versus post notice from the determination about whether to issue an am ndment.

In sum, the Comission is promulgating as an interim final rule the proposed standards in 5 50.92 for determining whether an amendment to an operating license involves no significant hazards consideration, and it

e

o; -is publishing separately an interim final rule to establish (a) procedures for noticing operating license amendment requests for an opportunity for a hearing, (b) criteria for providing or, in emergency situations, dispensing-with~ prior notice and reasonable opportunity for public comment on any proposed determination on no significant hazards consideration, and (c) procedures for consulting with the requisite State on any such determination.

INTERIM FINAL RULE ON STANDARDS FOR DETERMINING WHETHER AN AMENDMENT TO AN OPERATING LICENSE INVOLVES N0 SIGNIFICANT HAZARDS CONSIDERATIONS AND EXAMPLES OF AMENDMENTS THAT ARE CONSIDERED LIKELY OR NOT LIKELY TO INVOLVE SIGNIFICANT HAZARDS CONSIDERATIONS A.

Petition and Proposed Rule The Comission's interim final rule on standards for determining whether an amendment involves no significant hazards consideration completes,its actions on the notice of proposed rulemaking (discussed above), which was issued in response to a petition for rulemaking (PRM 50-17) submitted by letter to the Secretary of the Comission on May 7,1976, Mr. Robert Lowenstein.

For the reasons discussed below, the petition is denied. However, the Comission is promulgating standards, as intended by the petitioner, though not the standards petitioned for.

(PRM-50-17 was published for comment in the FEDERAL REGISTER on June 14, 1976 (41.FR 24006)).

The staff's recomendations 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 (45 FR 20491). The staff's recommendations on the interim final rule are in SECY-81-366, 81-366A, 83-16,83-16A and 83-168.

(These documents are available for examination in the Comission's Public Document Room at 1717 H Street, N.W. Washington, D.C.)

v i

d The petitioner requested that 10 C.F.R. Part 50 of the Commission's regulations be amended with respect to the procedures for issuance of amendments to operating licenses for. production and utilization facilities.) The petitioner's proposed amendments to the regulations would have required that the staff take

~

into. consideration (in determining whether a proposed amendment to an operating license involves no significant hazards consideration) whether operation of the plant under the proposed license amendment would (1) substantially increase the consequences of a major credible reactor accident or (2) decrease the margins of safety substantially below those previously evaluated for the plant and below those approved for existing licenses. Further, the petitioner proposed that, if the staff reaches a negative conclusion about both of these standards, the proposed amendment must be considered not to involve a significant hazards consideration.

In issuing the proposed rule, the Commission sought to improve the licensing. process by specifying in the regulations standards on the meaning of no significant hazards consideration.

These standards would have applied to amendments to operating licenses, as requested by the petition for rulemaking, and also to construction permits, to whatever extent considered appropriate. As mentioned before, the Commission now believes that these standards should not be applied to amendments to construction permits, not only because construction permits do not normally involve a significant hazards consideration but also because such amendments are very rare; the proposed rule has been modified accordingly.

Additionally, the Commission is reviewing the extent to which and the way standards should be applied to research reactors.

The Commission will handle

k x case-by-case any amendments requested for construction permits or for research reactors with respect to the issue of significant hazards considerations.

In the statement of considerations which accompanied the proposed rule, the Comission explained that it did not agree with the petitioner's proposed standards because of the limitation to " major credible reactor accidents" and the failure to include accidents of a type different from those previously evaluated.

During the past several years the Comission's staff has been guided, in reaching its determinations with respect to no significant hazards consideration, by standards very similar to those now described in this interim final rule as well as by examples of amendments likely to involve, and not likely to involve, significant hazards considerations.

These have proven useful to the staff, and the Comission employed them in developing the proposed rule. The notice of proposed rulemaking contained standards proposed by the Comission 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 significant 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, they had to be used together with standards te-be-applied-where-the-examples-were-net-definitive in determining whether or not a proposed amendmentinvolved significant hazards considerations. #

A

o

S' 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.

Before responding to the specific comments on the proposed rule, it should be noted again that it was structured so that the three standards would have been used to decide not only whether the Commission would publish prior notice of an amendment request (as opposed to notice after the amendment was issued) but also to decide whether to grant an opportunity for hearing before issuance of the amendment (as opposed to granting the opportunity after issuance). As explained before, the standards were not meant to be used to make the ultimate decision about whether to issue an amendment -- that final decision is a public health and safety judgment on the merits, not to be confused with the decisions on notice and reasonable opportunity for a hearing.

I As a result of the legislation, under the final rule the three standards would no longer be used to make a determination abouc whether or not to issue prior notice of an amendment request. As fully' described in the separate FEDERAL REGISTER notice mentioned before, the Conraission has formulated separate notice and State consultation procedures that will provide in all (except emergency and some exigent) situations prior notice of amendment requests.

The standards and the examples will usually be limited to a proposed determination and, when a hearing request is received, to a final determination about whether or not significant hazards

r

. 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 is meant t'o remain one that, as a separate matter, is based on public health and safety.

B.

Comments on the Proposed Rule 1.

General Nine persons submitted. comments on the petition for rulemaking and nine persons submitted comments on the proposed amendments. The comments on the petition are in SECY-79-660. The comments on the proposed rule are i

in SECY file PR-2, 50 (45 FR 20491). A summary of the comments and initially-proposed responses to the comments are in SECY-81-366, available for examination at the Commission's Public Document Room.

In light of the legislation, the Commission has decided to make its approach more precise (as described below) and has, therefore, revised its response to the comments. The new response is found in SECY-83-16A and 83-16B.

One of the commenters stated that all three standards are unclear and useless in that they imply a level of detailed review of amendaent applications far beyond what the staff normally performs.

It is the Commission's considered judgment that the standards have been and will continue to be useful in making the necessary reviews. Moreover, the Commission believes that the standards when used together with the examples will enable it to make the requisite decisions.

In this regard, it should be noted that

-Congress was more than aware of the Commission's standards and proposed their expeditious promulgation.

For example, Senate Report 97-113, cited above, stated:

f,... the Committee notes that the Commission has already issued for Jublic comment rules including standards for determining whetler an amendment involves no significant hazards consideration.

The Committee believes that the Commission should be able to build upon this past effort, and it expects the Commission to act expeditiously in promulgating the required standards within the time specified in section 301 Li.e., within 90 days after enactment].

I'd.

at 15.

Similarly, the House noted:

The committee amendment provides the Ccmmission with the authority to issue and make immediately effective amendments to licenses prior to

~

the conduct or completion of any hearing required by section 189(a) when it determines that the amendment involves no significant hazards consideration.

However,the authority of the Commission to do so is discretionary, and does not negate the requirement imposed by the Sholly decision that such a hearing, upon request, be subsequently held. Moreover, the Committee's action is in light of the fact that the Commission has already issued for public comment rules including standards for determining whether an amendment involves no significant hazards considerations. The Commission also has a long line of case-by-case precedents under which it has established criteria for such determinations....

H.R. Rep. No. 97-22 (Part 2), 97th Cong., 1st Sess., at 26 (1981) (Emphasis added).

A number of commenters recommended, in regard to the second criterion in

-the 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 comment was not accepted. Setting a threshold level for accident 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 previously evaluated.

It is possible, for example, that there may be a class of license amendments sought by a licensee which, while designed to improve or i

i

y

'~

y

. increate safety may, on balance, involve a significant hazards consider-

.ation 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).

Such amendments typically 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 Commission added to the list of examples considered likely to involve a significant hazards consideration a new example (vii).

When the legislation described before was being considered, the Senate Comittee on Environment and Public Works commented upon the Comission's proposed rule before it reported S.1207.

It stated:

The Comittee recognizes that reasonable persons may differ on whether a license amendment involves a significant hazards consideration. Therefore, the Committee 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 permit a "no significant hazards consideration" determination for license amendments to permit reracking of spent fuel pools.

Id., at p. 15.

The Comission agrees with the Comittee "that reasonable persons may differ on whether a license amendment involves a significant hazards consideration" L__

p-4, and it has 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." 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 keep them as guidelines under the standards for the use of the Office of Nuclear Reactor Regulation.

The Comission wishes licensees to note that when they consider license amendments outside the examples, falling-within-the-examples-ef-amendments 14 kely-te-invelve-s ign i f f ea n t-haz a rd s-ee n s ide ra tien s -e r-ne t-f a lling-wi th i n-a ny ef-the-examples-but-enly-within-the-standards, the Comission may need additional time for its determination on no significant hazards considerations; fer-aetien-en-amendments-ef-this-typet thus, they should factor this information into their schedules for developing and implementing such changes to facility design and operation.

The interim final rule thus goes a long way toward meeting the intent of the legislation.

In this regard, the Conference Report 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

3

i..

doubtful or borderline cases with a finding of no significant hazards consideration.

Conf. Rep. No.97-884, 97th Cong., 2d Sess, at37(1982).

This-statement-sheuld-be-read-in-light-ef-the-prev 4eus-diseussient It should be noted that the Commission has attempted to draft standards that are as useful and as clear as possible, and it has tried to formulate examples that will help in the application of the star.dards.

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 Commission's consideration. The standards and examples in-this-interim-final rule are as clear and certain as the Commission 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 Commission welcomes suggestions from the public to make them clearer and more precise, recognizing, in the Senate Committee's words, "that reasonable persons may differ on whether a license amendment involves a sig-nificant hazards consideration."

With respect to the Conference Committee's statement, quoted above, that the " standards should not require the NRC staff to p. rejudge the merits of the issues raised by a proposed license amendment," as will be recalled, it has been the Commission's general practice to couple the determination about prior versus post notice with the determination about issuanee-ef-an amendmentt provision of a prior hearing versus a hearing after issuance of the amendment; thus, occasionally, the issue of prior versus post notice was seen by some as including ineluded-with a judgment on the merits about of, issuance of an amendment.

ER-the-same-eenteMty Consequently, one Commenter

s suggested that application 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. The implication of the comment was that the Comission at the prior notice stage could lock itself into a decision on the merits.

Conversely, the commenter 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 constituting a negative connotation on the merits.

In any event, the legislation has made these coments moot by requiring separation of the criteria used for providing or dispensing with public notice and comment on no significant hazards consideration determinations from the standards used to make a determination about no significant hazards consideration. Under the legislation, the Comission's criteria for public notice and coment would not be the same as its standards on the determination about no significant hazards consideration.

In fact, the Comission will normally provide prior notice (for public coment and for an opportunity for a hearing) for each operating license amendment request.

thereby,-nermally-uneewpling-4ts-determinatiens-abeut-prier-versus post-net 4ee-frem-4ts-determinatiens-abeut-4sswanee-ef-the-amendmente (The Comission's criteria on public notice and coment are discussed in the separate FEDERAL REGISTER notice noted before.) Additionally, the Comission believes that use of these standards and examples will 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.

L_

{-

1 about-helding-as-eppesed-te-net-helding-a-prier-hearing-en-a-requested amendment, It holds this belief because the standards and the examples are merely screening devices for a decision about whether to hold a hearing before as-opposed to after an amendment is issued and cannot be said to prejudge the

.Comission's final decision to issue or deny the amendment request. As explained above, that decision is a separate one, based on separate public l

health and safety findings.

2.

Reracking of Spent Fuel Pools Returning to the Senate Comittee Report noted above with respect to the issue of a reracking of a spent fuel pool, the Comission has been providing prior notice and an opportunity for a prior hearing on amendment requests involving this issue.

The Comission has not been prepared to say, though that, as a technical matter, a reracking should necessarily be treated as involving a significant hazards consideration.

The Congress has addressed this subject.

As shown by the legislative history of Public Law 97-415, Section 12a, the Congress was aware of the Comission's. practice in these cases and wanted it to continue.

(The report on the Senate side has been quoted above; the discussion in the House is found at 127 Cong. Record H 8156, Nov. 5, 1981.)

In light of this legislative history, the Comission has decided that it would put its previous practice on a more formal footing.

Therefore, as a matter of policy, it will include reracking in 6 2.105 of the rule, and, thereby, continue to provide both prior notice and an opportunity for a prior hearing.

. Additionally, it should be noted that under section 134 of the Nuclear Waste Policy Act of 1982, an interested party may request a " hybrid" hearing rather t h a n -a - fe ma l-a dj u d 4 e a t e ry-he a ri R 9 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 REGISTER notice describing this type of hearing with respect to expansions of spent fuel storage capacity and other matters concerning spent fuel.

3.

Amendments Involving Irreversible Consequences The Conference Report stated:

The conferees intend that in detennining 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 permitting 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 3rotections).

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)

Id. at 37-38.

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 paragraph 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 Senator clarify that, please?

F, e

. 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 Commission's use of that authority beyond the statutory provision in section 189a.

Under that provision, the only determination which the Commission 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 haz'ard which is important, not whether the action is irreversible. Clearly, there are many irreversible actions which would not pose a hazard. Thus where the Commission 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) S. 13056 (daily ed. Oct. 1, 1982).

The scatement was further explained in a colloquy between Senators riitchell 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 the 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 krypten 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 significant hazards issues will take effect prior to a public hearing.

Id. (Part III) at S. 13292.

I

C y n In light of the Conference Report and colloquies quoted above, the Comission wishes to note that it will make sure "that only those amendments that clearly raise no significant hazards issues will take effect prior to a public hearing."

It will do this by providing in 9 50.92 of the rule that it will review proposed amendments with a view as to whether they involve irreversible consequences; if one does (by, for example, permitting a significant increase in the amount of effluents or radiation emitted by a nuclear power plant), the Commission may treat it as involving significant hazards considerations.

In this regard, 44-has-deelded-te-add-the-twe examples-deseribed-in-the-Genferenee-Repert-te-4ts-list-ef-examples, in-i-50,92(a),--Aseerdingly,-a-new-example-(viii)-has-been-added-te-the 14st-ef-examples-4n-6-50,92(al-and example (iii) has-been-rev4 sed-te makes clear thats-as-a-matter-ef-publie-pelley, an amendment which invelves sweh-4rreversible-eensequenees-as-fin-example-(v444))-a-signiffeant-4nerease in-the-ameent-ef-effluents-er-radiatien-a-fae414ty-emits-er-as-(in-revised example-(444))-allewing allows a plant to operate at full power during which one or more safety systems are not operable would be treated in the same way as *ke other examples considered likely to involve a significant hazards consideration.

Eaeh-amendment-request-falling-within-the s-twe-examples w ( 11 -be -e x am i n e d -e a re f u lly -by-t h e - Gemi s s ie n - i n -l i g h t -e f-t h e -a p p l 4 e a n t i s spee4ffe-eirewmstanees, Finally, it is once again important to note that the examples in-i-50,92(b)(1) and-(b)(2) do not cover all possible examples and may not be representative of all possible problems and concerns. As-problems-are-reselved-and-as As new infonnation is developed, the Commission will refine these examples and

. add new examples, in keeping with the standards in % 50.92 of the interim final rule -- and, if necessary, it will tighten the standards themselves.

The Commission has left the proposed rule intact to te ! extent that the rule states standards with respect to the meaning of "no significant hazards consideration." The standards in the interim final rule (new-5-50,92(e))

I are substantially identical to those in the proposed rule, though the attendant language in new % 50.92 as well as in i 50.58 has been revised (1) to make the determination easier to use and understand.i-(2)-te-4neerperate-the-examples (fermerly-4n-the-preamble-ef-the-prepesed-rule)-4nte-the-rule-fi-50,92(b)(1) and-(b)(2))-4n-erder-te-better-earry-eWt-the-intent-ef-%he-legislatieni-(3) and-te-ensure-sens4steney-between-the-4nterim-f4Ral-rule-and-the-prepesed-vvier To supplement the nandards that are being incorporated into the Commission's regulations, the examples will be incorporated into the procedures of the Office of Nuclear Reactor Regulation, a copy of which will be placed in the Commission's Public Document Room.

EXAMPLES OF AMENDMENTS THAT ARE CONSIDERED LIKELY TO INVOLVE SIGNIFICANT HAZARJS CONSIDERATIONS ARE LISTED BELOW Unless the specific circunstances of a license amendment request, when measured against the star dards in 6 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 Q 50.21(b) or 6 50.22 or for a testing facility will likely be found to involve

r significant hazards considerations, if operation of the facility in accordance with the proposed amendment involves one or more of the followinji (1) 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 safety margins ef-seme significantly reduced from those believed to have been present when the license was issued.

(v444)--Repask4ng-of-a-spent-fuel-sterage-peel, (v444)--Perm 44 ting-a-signif4eant-4nerease-4n-the-amewnt-ef-effluents er-radiatien-emitted-by-a-nwelear-pewer-plant,

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. LEXAMPLES OF AMENDMENTS THAT ARE CONSIDERED NOT LIKELY TO INVOLVE SIGNIFICANT HAZARDS CONSIDERATIONS ARE LISTED BELOW Unless the specific circumstances of a license amendment request, when measured against the standards in 5 50.92, lead to a contrary conclusio' then, pursuant to the procedures in 9 50.91, a proposed amendment to ar operating license for a facility licensed under 6 50.21(b) or 6 50.22 ar 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 core 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 assunes that no significant changes are made to the acceptance criteria for the technical specifications, 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.

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(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 satisfaction of the criteria is essentially self-evident.

(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 essentially self-evident whether construction has been completed satis-factorily.

(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 u' sed 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 l

l ownership shares among co-owners already shown in the license.

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. Paperwork Reduction Act Statement This final rule contains no new or amended requirements for record keeping, reporting, plans or procedures, applications or any other type of information' collection.

Regulatory Flexibility Certification In accordance with tne Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b),

the Commission 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 C.F.R. Part 121.

Since these companies are dominant in their service areas, this rule does not fall within the purview of the Act.

Regulatory Analysis The Comission has prepared a regulatory analysis on these amendments, assessing the costs and benefits and resource impacts.

It may be examined at the address indicated above.

Pursuant to the Atomic Energy Act of 1954, as amended, the Energy Reorgani-zation 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 amend-l

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'.ments to Title 10, Chapter I, Code of Federal Regulations,10 C.F.R.

. Parts 2 and 50, are published as a document subject to codification.

' 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.

o Part 50 Antitrust, Classified information, Fire prevention, Inter-governmental relations, Nuclear power plants and reactors, Penalty, Radiation protection, Reactor siting criteria, Reporting requirements.

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, asamended(42U.S.C.2201, 2231); sec. 191, as amended, Pub. L.87-615,76 Stat.409(42U.S.C.2241);

sec.201,88 Stat.1242,asamended(42U.S.C.5841);5U.S.C.552.

Section 2.101 also issued ur. der secs. 53, 62, 63, 81, 103, 104, 105,

.68 Stat. 930, 932, 933, 935, 936, 937, 938, asamended(42U.S.C.2073,

P ~2092, 2093, 2111, 2133, 2134, 2135); sec. 102, Pub. L.91-190, 83 Stat.

I 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(42U.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 (42U.S.C.5846).

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(42U.S.C.2135).

2.

In 5 2.105, paragraphs (1)(4) through (a)(8) are redesignated as paragraphs (a)(5) through (a)(9) and a new paragraph (a)(4) is added to read as follows:

(a)

(4) An amendment to an operating license for a facility licensed under 9 50.21 or 5 50.22 or for a testing facility as follows:

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(i) -If the Comission determines under i 50.58 that the amendment involves no significant hazards consideration, though it will provide notice of opportunity for a hearing: pursuant to this section, it may make the amend-ment immedic.cly effective and grant a hearing thereafer; or (ii) 'If the Commission determines under i 50.58 and i 50.91 that an emergency or exigent situation exists and that the amendment involves no i

~

significant hazards considerations, it will provide notice of opportunity for a hearing pursuant to 6 2.106 (if a hearing is requested it will be held after issuance of the amendment); or (iii)

If the amendment in"olves a reracking of a spent fuel poul, the Comission will provide notice of opportunity for a hearing pursuant to this section and will provide an opportunity for a prior hearing if one is i

requested.-

3.

In i 2.105, redesignated paragraph (a)(6) is revised to read as follows:

(a)

(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 su:h a license, when such amendment would authorize actions which may significantly affect the health and safety of the public; or....

6,..

' 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 (42U.S.C.2133,ik134,2201,2232,2233,2236,2239,2282); 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 under sec.122,68 Stat.939(42U.S.C.2152). Sections 50.80 and 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 U.S.C. 955 (42 U.S.C 2236).

For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2273),

9550.10(a),(b),and(c), 50.44,50.46,50.48,50.54,and50.80(a)are issued under sec. 161b, 68 Stat. 948, as amended (42 U.S.C. 2201(b));

ll50.10(b)and(c)and50.54areissuedundersec. 1611, 68 Stat. 949, asamended(42U.S.C.2201(1));and5550.55(e),50.59(b),50.70,50.71, l

50.72, and 50.78 are issued under sec. 1610, 68 Stat. 950, as amended 1

(42U.S.C.2201(o)).

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, 5.

In 5 50.58, paragraph (b) is revised to read as follows:

550.58 Hearings and report of the Advisory Committee on Reactor Safeguards.

(b) 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 $50.21(b) or 950.22 of this part, or which is a testing facility. When a construction permit has been issued for such a facility following the holding of a public hearing and an application is I

made for an operating license or for an amendment 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 i

publication once in the FEDERAL REGISTER of its intent to do so.

If th'e Commission finds, in an emergency situation, as defined in 9 50.91, that no significant hazards consideration is presented by an application for an amendment to a-eenstewstien-permit-er-te an operating license, it may dispense with public sweh notice and publieat4en 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.

Both in an emergency situation and in the case of exigent I,i g

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, 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.

The Commission will use the standards in 5 50.92 to determine whether a significant hazards consideration is presented by an amendment to an operating iicense for a facility of the type described in 5 50.21(b) or 5 50.22, or which is a testing facility, and may make the amendment immediately 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.

6.

Section 50.91 is redesignated as 5 50.92 and revised to read as follows:

5 50.92 Issuance of amendment.

(a)

In determining whether an amendment to a license or construction permit will be issued to the applicant, the Commission will be guided by the consider-ations 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 prior to the issuance of the amendment to the license.

If the amendment involves a significant hazards consideration, the Commission will give notice of its proposed action pursuant to 5 2.105 of this chapter before acting thereon.

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'. The notice will be issued as soon as practicable after the application has

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been docketed.

(b).,The Comission will be particularly sensitive to a license amendment 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) and may treat one that does as if it involves significant hazards considerations.

(d) The Comission 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 6 50.21(b) or 5 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.

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Dated at Washing. ton, D.C. this day of

, 1983.

For the Nuclear Regulatory Comission, L

Samuel J. Chilk

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Secretary for the Comission l

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WASHINGTON. C.C. 20510 March 24, 1983 The Honorable Nunzio J. Palladino Chairman Nuclear Regulatory Cecmission 1717 H Street, N.W.

Washington, D.C.

20555

Dear Mr. Chairman:

I am writing to confirm our telephone conversation of March 23rd.

I appreciate your making the effort to know further my views on the question of reracking as it pertains to the Commission's proposed implementing regulations for

, the Sholly provision in the Fiscal Year 1982-1983 NRC Authorization Act.

As I stated in our conversation, I believe the Senate Co=mittee made explicitly clear its position that reracking should be listed in the rule as an example of an event that poses significant hazar,ds consideration.

The stipulation in the' Senate Co=mittee Report.(No. 972113) represents an un-equivocal signal to the Co= mission which was in no way contradicted or opposed in the House or Conference Reports.

The letter of March 15 signed by myself and Senators Simpson and Hart clearly defines the basis for the unified Senate Committee cosition on the matter..

Moreover, the letter expressly reflects our opposition to the Commission's proposed case-by-case approach to reracking (e.g. SECY 83-163) or to any other approach which may allow a reracking case to be treated as posing no significant hazards consideration.

I would also reiterate that, should the Commission decide to exclude from the rule reracking as an example which poses significant hazards consideration, I will closely consider introducing legislation which would mandate this requirement by law.

Such legislation would reaffirm for the Commission the determination already made by the Senate in the Committee Report, that the Commission should treat reracking.as posing a significant hazards consideration.

3/24...To OCA for Appropriate Action..Cpys to: Rk,EDO.83-1613

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r The Honorable Nunzio J. Talladino March 24, 1983 Page two.

Again, I appreciated the opportunity to discuss this r.atter with you.. I will look forward to reviewing the deliberations of the Conunission on the Sholly rule.

Sincerely,

.l Ge J. Mitchell United States Senator e. O 9

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9)Cnifeb Sinfea Senate WASHINGTON, D.C. 20510 s 7-C? L-S March 24, 1983 The Honcrable Nunzio J. Palladino Chairman Nuclear Regulatory Commission 1717 H Street, N.W.

Washington, D.C.

20555

Dear Mr. Chairman:

I am writing to ccafirm our telephone conversation of March 23rd.

I appreciate your making the effort to know further my views on the question of reracking as it pertains to the Commission's proposed implementing regulations for the Sholly provision in the Fiscal Year 1982-1983 NRC Authorization Act.

As I stated in our conversation, I believe the Senate Committee made explicitly clear its position that reracking should be listed in the rule as an example of an event that poses significant hazards consideration.

The stipulation in the Senate Committee Report (No.97-113) represents an un-equivocal signal to the Commission which was in no way contradicted or opposed.in the House or Conference Reports.

~

The letter of March 15 signed by myself and Senators Simpson and Hart clearly defines the basis for the unified Senate Committee position on the matter.

Moreover, the letter exp.ressly reflects our opposition to the Commission's proposed case-by-case approach to reracking (e.g. SECY 83-16B) or to any other approach which may allow a reracking case to be treated as posing no significant hazards consideration.

I would also reiterate that, should the Commission decide to exclude from the rule reracking as an example which poses significant hazards consideration, I will closely consider introducing legislation which would mandate this requirement by law.

Such legislation would reaffirm for the Commission p

the determination already made by the Senate in the Committee Report, that the Commission should treat reracking as posing a significant hazards consideration.

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The Honorable Nunzio J. Palladino March 24, 1983 Page two Again, I appreciated the opportunity to discuss this matter with you.

I will look forward to reviewing the deliberations of the Comission on the Sholly rule.

Sincerely,

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Ge rge J. Mitchell United States Senator e

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