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j WASHINGT ON. D, C. 20555 E# N June 9, 1980 w
ME!OPEDUM FOR:
DL Assistant Directors DL Branch Chiefs DL Project Managers DL Licensing Assistants FROM:
Darrell G. Eisenhut, Director Division of Licensing SU5dECT:
NO SIGNIFICANT MZARDS C0'iSIDERATION On February 29, 1930, the Commission approved a Notice of Proposed Rulemaking to amend 10 CFR Parts 2 and 50 to specify criteria for determining when a
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prcposed amendment to a construction permit or operating license involves no significant hazards consideration. The preamble of the proposed rule includes examples of arrendments that are "likely" and "n,t likely" to involve signifi-cant hazards consideration.
In approving the proposed rule, the Corr. mission requested that NRR procedures be revised to conform to the examples in the notice. These examples will be incorporated in operating procedures being developed for the new Division of Licensing.
In the meantime, this memo-randum complies with the Commission's request by supplementing procedures
-concerning significant hazards consideration which are currently contained in DDR Merorandum No. 5 and FM Operating Procedure 219.
The surary of the proposed rule states, in part:
"The Nuclear Regulatory Commission is propcsing to amend its regulations to specify criteria for determining whether a proposed amendment to an operating license or to a construction permit for a comercial or large production or utilization facility involves no significant hazards consideration.
If the Comission determines that no significant hazards considera-tion is involved, it may issue an amendment to an operating license er to a construction permit and then publish a notice of the ar.endment in the FEDERAL REGISTER. Otherwise, it must publish the notice at least 30 days before the amendment is is' sued."
7 Although the criteria specified in this rule, as now proposed, app 53r to apply only to amerdments involving comercial or large production or utiliza-tien facilities, at this time the staff will apply the criteria to amendments for power, testing, research reactors and critical facilities.
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In making a determination that a proposed amendment to a license or ccnstruction permit involves no significant hazards consideration, the staff will consider whether operation of the facility in accordance with the proposed amendment culd (1) involve a significant increase in the probability or consecuences cf an accident previously evaluated, (2) create the possbility of an accident cf a type different from any evaluated previously, or (3) involve a signiff-cant reduction in a margin of safety.
If the staff reaches a negative cen-
&sicr. on all criteria set forth above, the pr: posed c endment shall be c;nsidered to involve no si nificant hazards considera. ion.
5 8604170640 860327 PDR PR 2 45FR20491-PDA n
2 Evt :les of amend. Tents that are likely to involve significant hazards
- n!!cerations are listed in Enclosure' l.
Enc 1csure 2 lists examples
- i.endments that are considered not likely to involve significant "trirds considerations.
I Ihould be noted that in the event an amendment to an Operating license or construction permit involves no significant hazards con-s'diration, the staff will cause a notice of proposed action to be p.b'.ished in the FEDE?.AL REGISTER prior to acting on the amendment w' en it is determined, pursuant to 2.105(a)(4), that an opportunity f:r a public hearing should be afforded.
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uarrell G(. (psennut, Director Division of\\ Licensing E c.asures: As stated 0
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EXAMPLES OF AMENDMENTS THAT ARE CONSIDERED LIKELY TO INVOLVE SIGNIFICAtiT HAZARDS CONSIDERATI0tl A significant relaxation of the criteria used to establish safety limits.
1.
A significant relaAation of the bases for limiting safety system settings 2.
or limiting conditions for operation.
A significant relaxation in limiting conditions for operation not accom-3.
panied by compensatory changes, conditions, or actions that maintain a l
I ccm,ensurate level of safety.
4.
Renewal of an ' operating license.
Fcr a nuclear reactor, an increase in authorized maximum core power level 5.
1 not previously publicly noticed.
A change to Technical Specifications involving a significant unreviewed 6.
safety question.
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f EXAMPLES OF AME!!DME!!TS THAT ARE C0!iSIDERED tiOT LIKELY TO i
If4V0LVE SIGilIFICAtiT HAZARDS C0tiSIDERATI0tl 1.
A purely administrative change to technical specifications; for example, a change to the Definitions Sections, correction of an error, or a change in nomenclat'ure.
2.
A change that constitutes an additional limitation, restriction, or control not presently included in the technical specifications; for example, a more stringent surveillance requirement.
3.
For a nuclear power reactor, a change resulting from a nuclear reactor core reloading if no fuel assemblies significar.tly different from those found previously acceptable to the fir.C for a previous core at the facility in question are involved.
This assumes that no s1gnificant changes are made to the acceptance cr'iteria for the technical specifications, the analytical methods used to demonstrate conformance with the technical specifications _ and regulations are not significantly changed, and such methods previously have been found acceptable by the liRC.
.4.
A relief granted upon demonstration of acceptable operation from an operating restriction that was imposed because acceptable operation was not yet demonstrated.
5.
A relief granted upon satisfactory completion of construction from an operating restriction that was imposed because the facility construction was not yet completed, satisfactorily.
6.
A change which either increases the probability or consequences of a previously analyzed accident or reduces a safety margin but for which the results of the change are within regulation acceptance criteria; for example, resulting from the application of a small refinement of a previously used calculational model or design tethod.
7.
A change to make a license conform to changes in the regulations.
8.
An extension of the date, in a construction permit, for the completion of construction.
Federal Register / Vol. 45 No. 62 / Friday, March 28, 1980 / Proposed Ruhs NUCLEAR REGULATORY Utilization Facilities." ne purpose of ne petitioners
- proposed COMMISSION the amendments is to revise amendments to the regulations would jl 2.105(a)(3) 50.58(b) and 50.91 to require that the staff take into 10 CFR Parts 2 and 50 specify criteria for determining whether consideration, in determining whether a a proposed amendment to an operating proposed amendment to an operating No Significant Hazards Consideration license or to a constmetion permit for a license involves a significant hazards AGEncr. Nuclear Regulatory commercial or other large production or consideration, whether operation of the Commission.
utilization facility (one licensed under plant under the proposed license acnoot Proposed rule.
section 103 or 104(b)) or a testing amendment will(1) substantially facility licensed under 104(c) of the increase the probability or sussesARr.ne Nuclear Regulatory Atomic Energy Act of 1954, as amended consequences of a melor credible Commission is proposing to amend its
("the Act"), involves no significant reactor accident or (2) decrease the regulations to specify criteria for hazards consideration.ne proposed margins of safety substantially below determining whether a proposed amendments result from a petition for those previously evaluated for the plant amendment to an operating bcense or to rulemaking (PRM 50-17) submitted by and below those approved for existing a construction permit for a commercial letter to the Secretary of the licenses. It is proposed that,if the staff or large production or utilization facility Commission on May 7,1976, by Mr.
reaches a negative conclusion as to both involves no significant hazards Robert lowenstein of the law offices of of these criteria, the proposed consideration. If the Commission lowenstein.Newman Reis and amendment shall be considered not to determines that no significant hazards Axelrad, acting on behalf of the Boston involve a significant hazards consideration is involved, it may issue Edison Company, Rorida Power and consideration.
an amendment to an operating license or Ught Company and lowa Electric Ught ne petition (Docket 50-17) was to a construct'on permit and then and Power Company.ne petitioners published for comment in the Federal publish a notice of the amendment in the request the Nuclear Regulatory Register on June 14.1976 (41 FR 24006).
Federal Register. Otherwise, it must Commission to amend to CFR Part 2.
Comments have been received from publish the notice at least 30 days Rules of Practice for Domestic eight persons, four of whom are in favor before the amendment is issued.
Ucensing Proceedings," and 10 CFR Part of granting the petition and four of ne proposed amendments to the.
- 50. " Domestic Ucensing of Production whom are opposed. nose in favor regulaticas are in response to a petition and Utilization Facilities," with respect generally argued that the petitioners
- for rulemaking filed on May 7,1976, by to the issuance of amendments to proposed amendments,if adopted, Mr. Robert lowenstem on behalf of operating licenses for production and would help eliminate unnecessary three petitioners (Boston Edison utilization facilities.
delays in effecting amendments to an Company, Morida Power and Ught Section 189a of the Act provides that, operating license. nose opposed Company, and Iowa Electric Ught and upon thirty days notice published in the generally argued that the petitioners
- Power Company) requesting that criteria Federal Register, the Commission may propcsed amendments would be be specified to determine when no issue an operating license or an contrary to congressionalintent since significant hazards consideration is amendment to an operating licensc or an they would tend to eliminate public involved.
amendment to a construction permit for participation. Opposing arguasents were DATE: Comment period expires May 27.
a facility licensed under section 103 or also made to the effect that the 1980.
104(b), or a testing facility licensed petitioners' proposed amendments ADORESSEs:Allinterested persons who under section 104(c) without a public would change the standard of review desire to submit written comments or hearing if no hearing is requested by any from one of finding "non. significance" to suggestions for consideration in interested person. Ilowever, i 189a one of finding " substantial change." thus connection with the proposed permits the Commission to dispense shifting the burden of proof. One amendments should send them to the with such thirty days notice and Federal opposing commenter also stated that the Secretary of the Commission, U.S.
Register publication with respect to the amendments could result in lengthy Nuclear Regulatory Commission, issuance of an amendment to a litigation over the mes.Ings of the Washington. D.C. 20555. Attention:
construction permit or an amendment to criteria proposed by the petitioners.
Docketing and Service Branch, by May an operating license upon a After consideration of the petitioners
- 2 27.1980. Copies of comments received determination by the Commission that proposed amendments and public on the proposed rulemaking and the amendment involves no significant comments received the Commission comments received on the petition for hazards consideration. In cases where believes that the licensing process can rulemaking (PRM 50-17) may be the Commission determines that there is - be improved by specifying criteria with examined in the Commission's Public no significant hazards consideration, the respect to the meaning of "no significant Document Room at 171711 Street. N.W..
Commission may issue the amendment hazards consideration." The Washington, D.C.
and then publish a notice in the Federal Commission, however, does not agree 1
FOR FURTHER INFORMADON CONTACT:
Register. In such cases. interested with the petitioners
- proposeGr:qaria Mr. W. E. Campbell. Jr Office of members of the public who wish to because of the limitation to " major a
Standards Development. U.S. Nuclear object to the amendment and request a credible reactor accidents" and their 3
Regulatory Commission. Washington, hearing may do so. but a request for.
failure to include a :cidents of a type E
D.C. 20555. Phone 301-443-5913.
hearing does not, by itself, suspend the different from those previously SUPPLEMENTARY INFOResADON: ne effectiveness of the amendment.
evaluated.
Nuclear Regulatory Commission has Sections 50.58(b) and 50.91,10 CFR, of During the past several years, the
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under consideration amendments to its the Commission's regulations Staff has been guided in reaching its regulations in 10 CFR Part 2. " Rules of implementing i 189a contain no criteria findings with respect to "no significant Practice for Domestic Ucensing for determining when an amendment hazards consideration" by staff criteria Proceedings," and 10 CFR Part 50 involves no significant hazards and examples of amendments likely to E
" Domestic Ucensing of Production and consideration.
involve, and not likely to involve, b
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Fed:ral Rssist:r / Vol. 45. No. 62 / Fridsy, March 28, 1980 / koposed Rules s!gnificant hazards considerations, the technical specifications and 104fc) shall be based on the criteria set These criteria and examples have been regulations are not significantly forth in i 80.91(b) of this chapter: or".
promulgated within the Staff and have changed, and such methods previously proven useful to the Staff.The have been found acceptable by the NRC PART 50-OOMESTIC IJCENSING OF Commission believes it would be useful (iv) A rellef granted upon PRODUCTION AND LJTILIZATION to consider incorporating these criteria demonstration of acceptable operation FACluTIES into the Commission's regulations for from an operating restriction that was use in determining whether a proposed imposed because acceptable operation l80.54 [M1 amendment to an operating license or to was not yet demonstrated.
- 2. Paragraph 50.5a(b) of to CFR Part 80 a construction permit of any production (v) A relief granted upon satisfactory is amended by revising the last sentence or utilization facility involves no completion of construction from an to read:If the Commission finds that no significant hazards consideration.
operating restriction that was imposed significant hazards consideration is Subsequent to the resolution of the because the facility construction was presented by an application for an comments received on the proposed rule not yet completed datisfactorily, amendment to a construction permit or the Commission intends to incorporate (vi) A change which either increases operating license, considering the into a Regulatory Guide the examples the probability or consequences of a critaria set forth in i 50.91(b), it may associated with the criteria.
previously analyzed accident or reduces dispense with such notice and Examples of amendments that are a safety margin but for which *he results publication and may issue the considered likely to involve significant of the change are within regulation amendment."
hazards consideration are listed below.
acceptance criteria: for example 3.10 CPR Part 50, 5 50.91 is amended (1) A significant relaxation of the resulting from the application of a small criteria used to establish safety limits.
refinement of a previously used by redesignating the present paragraph b
" and addi a[gra (b a d (c) to res as (ii) A significant relaxation of the calculational model or desi method.
bases for limiting safety system settings (vii) A change to make a icense g,gg,***
or limiting conditions for operation.
conform to changes in the regulations.
(iii) A significant relaxation in limiting (viii) An extension of the date,in a 1 80.81 leeuence of asserenant.
conditions for operation not construction permit, for the completion accompanied by compensatory changes, of construction.
(a)In dete'"I"I"8 whether * *
- conditions, or actions that maintain a It should be noted that in the event an n'b)In making a determination that a commensurate level of safety, amendment to an operating license or proposed amendment to a license ce (iv) Renewal of an operating license, construction permit involves no construction permit involves no (v) For a nuclear reactor, an increase significant hazards consideration, the signifh: ant hazards consideration the in authorized maximum core power staff will cause a notice of proposed CommJssion will consider whhther level not previously publicly noticed.
action to be published in the Federal operatio.o of the facility in accordance (vi) A change to technical Register prior to acting on the with the pmposed amendment would (1) specifications involving a significant amendment when it is determined, involve a sigrrificant increase in the unreviewed safety ouestion.
pursuant to 2.105(a)(4), that an probability or consequences of an Examples of amendments that are opportunity for a public hearing should accident previouslyevaluated. (2) create considered not likely to involve be afforded.
the posalbility of an accident of a type significant hazards consideration are Pursuant to the Atomic Energy Act of different from any evaluated previously, listed below.
1954, as amended, and section 553 of or (3) involve a significant reduction in a (i) A purely administrative change to title 5 of the United States Code, notice margin of safety, technical specifications: for example, a is hereby given that adoption of the (c)If the Commission reaches a change to the Definitions Sections, following amendments to 10 CFR Part 2 nagative conclusion on all criteria set correction of an error, or a change in and 10 CFR Part 50 is contemplated.
forth in (b)(1), (2) and (3)of this section.
nomenclature.
the proposed amendment shall be (ii) A change that constitutes an PART 2-RULES OF PRACTICE FOR considered to involve no significant additional limitation, restriction, or DOMESTIC UCENSING PROCEEDING hazards consideration.
control not presently included in the
- 1. Paragraph 2.105(a)(3) of 10 CFR Part technical specifications; for example a 2 is revised to read as follows:
(Secs. tell,180 as amended Pub. L 83-703. es more atringent surveillance requiremenL Stat. 948,955. Pub. L 85-2% 71 Stat. 576 (42 (iii) For a nuclear power teactor, a j 2.105 Nottco of propows action.
U.S.C. 22o1. 2M9h Sec. 201, Pub. L 93-438, 86 change resulting from a nuclear reactor (a) * *
- Stat.1243 (42 U.S.C. 5s411) core reloading if no fuel assemblies (3) An amendment of a license Dated at Washington, D.C this 21st day of significantly different from those found specified in paragraph (a)(1) or (2) of March, tm previously acceptable to the NRC for a this section and which involves a previous core at the facility in question significant hazards consideration.The For the Nuclear Regulatory Commission.
are involved.This assumes that no determination of significant hazards samuel t chn significant changes are made to the consideration for production and Secretary of the Commission.
acceptance criteria for the technical utilization facilities licensed under armoocswerro.d m sa..
specifications, the analytical methods sections 103 and 104(b) of the Act or a aumo cooe rsee-si-a used to demonstrate conformance with testing facility licensed under section
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. "'?i"" W COMMENTS BY THE' NATURAL RESOURCES DEFENSE COUNCIL AND THE UNION OF CONCERNED SCIENTISTS Md' ON PROPOSED AMENDMENTS TO 10 CFR PARTS 2 AND 50:
NO SIGNIFICANT HAZARDS CONSIDERATION These comments on the NRC's proposed rulemaking to define "no significant hazards consideration" are offered by the Natural Resources Defense Council, Inc. (NRDC) and the Union of Concerned Scientists (UCS).
NRDC is a non-profit public interest organization, with a membership of over 45,000 persons.
NRDC is dedicated to the defense and preservation of the human environment and the wise use of natural resources.
The organization has a strong interest l-in ensuring that the risks posed by nuclear energy are mini-mized and has actively participated in many proceedings before l-(;
the NRC.
UCS is a coalition of scientists, engineers and other professional, supportedby the financial contributions of over 90,000 public sponsors.
UCS has published a number of independent technical studies in the fiels of nuclear j
l safety and energy policy and, like NRDC, hks frequently par-
-l ticipated in proceedings before the NRC.
NRDC and UCS believe that the proposed rule is contrary to law and to sound policy.
The Atomic Energy Act, as amended, provides for a mandatory I
public hearing as a prerequisite to the nsuance of a construc-l tion permit for a nuclear power plant.
42 USC 52239 (a).
Prior to the 1962 amendments to the Act, a hearing was also required l-in all cases before the issuance of an operating license.
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. While P.L.87-615(1962) removed the requirement of a hearing at.the operating license stage, it balanced this by providing that amendments to the construction permit and operating license should be issued only after notice and the opportunity for hearing, except in cases involving "no significant hazards consideration."
The statutory language is as follows:
In any proceeding under this chapter, for the granting, suspending, revoking, or amending of any license or construction permit.
the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding.
. The Commission may dispense with such thirty days' notice and publication with respect to any application for an amendment to a construction permit or an amend-ment to an operating license upon a determination by the Commission that the amendment involves no significant hazards consideration.
42 USC 52239(a)
Thus, the law provides the opportunity for a hearing on all amendments, but permits the Commission to dispense with the prior notice provisions only in cases involving no significant hazards consideration.
The legislative history of the 1952 amendments shows that Congress was fully aware of the potential damage to the public interest from removing the mandatory operating license hearing and Congress specifically viewed the strict provisions for prior notice and opportunity for hearing on amendments as a major means to ensure that the public interest would not be compromised by indiscriminate changes to the proposal after it had passed through the period of public scrutiny.
The Senate Report addresses this issue as follows:
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This amendment'although relaxing.the mandatory hearing requirement, should not prejudice the public interest in reactor safety determinations.
A mandatory hearing will still be held at the critical point in reactor licensing - the con-struction permit stage - where the suitability' of the site is to be judged.
Succeeding regula-tory actions will-take place only upon publica-tion and sufficient advance ~ notice to afford an interested party the opportunity to intervene.
Finally, it is expected that the authority given AEC to dispense with notice and publication would be exercised with great care and only in those instances where the application presented no signi-ficant hazards consideration.
U.S. Code Cong. & Ad. News, 87th Cong.,
2.d.,
Sess. 2207, 2214-2215 (1962).
Emphasis added.
Further, the Senate Report took particular note that.the possibilities for mischief are increased proportionally to the number of issues which remain unresolved at the time the construction permit is issued.
In cases involving important post-construction permit unresolved safety problems, the legislators noted that the opportunity for a hearing on c.p.
amendments is not enough; the Commission was directed to order hearings on its own motion in these circumstances.
The Committee is cognizant of the provisional construction permit procedure wh'ich allows the issuance of a permit, subject to further re-search and development work, before becoming final.1/
When this research and development.
1/
Although the NRC no longer issues " provisional" construc-tion permits, it continues the practice of issuing construction permits subject to the later resolution of unresolved safety roblems.
Gulf States Utilities Company, (River Bend Station Units 1 and 2) ALAB-444, 6 NRC 760, 766 (1977).
Thus, the quoted comments from the Senate Report are still fully applicable.
See also, Northern Indiana Public Service Co.,
(Bailly Generating Station, Nuclear-1) CLI Dec. 12, 1979, S1.op.
at 3-4.
r work is directed toward the resolution of a difficult safety problem of unusual public importance it is expected that the Commission, on its own motion, would order a hearing before significant amendments or authorization of the final construction permit were issued.
Id. at 2214.
The plain words of the statute, combined with its legis-lative history, envision an orderly, fair and open process-which begins with public hearings on each construction permit application, followed by notice and the opportunity for hearing on all amendments and on the operation license and its later amendments.
The only narrow exception is that the prior notice provision may be waived for a certain class of amendments, those involving no significant hazards consideration.
In con-trast to this statutorily mandated process, the commission has developed a two-pronged practice which operates to frustrate public participation and is inconsistent with Congressional.
intent.
First, the staff has actively discouraged the holders of construction permits from filing for amendments when changes are made to the plant during the process of construction. Since such amendments tend to cause administrative problems and require the commitment of staff resources, it is well known that the utilities are encouraged to wait until the operating license review to seek post-hoc approval of modifications.
The NRC has no regulations describing the situations which require filing for an amendment.
The result is that no con-struction permits have ever been amended for a design change.
'".In a recent case, the Commission requested the staff to describe in detail its practice in such cases:
The staff's response stressed the preliminary
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nature of the design information submitted at the construction permit stage, and the brevity and lack of specificity of the construction itself.
It noted that the Commission's regula-tions specifically authorize the issuance of a construction permit even though not all technical informat. ion has been supplied.
The staff con-trasted the preliminary design information supplied at the construction permit stage with the far more detailed review of final design information at the operating license review stage.
The staff observed that as neither the Atomic Energy Act nor the Commission's regulations spell out the commit-ment made by, or the authority granted to, holders of construction permits, design changes proposed after issuance of a construction permit have long been treated on an ad hoc basis by licensees and staff.
The staff stated that it learns of design changes during construction through formal or informal notification by licensees; through the inspection and enforcement effort; and sometimes only when the facility is ready for operating license review.
Depending on the degree of signi-ficance, a proposed change may receive detailed staff review, but more commonly, detailed review is deferred to the operating license review stage.
Although a sufficiently major change could warrant a construction permit amendment, a review of 88 extant construction permits indicated that none had been amended for a design change, according to the staff's submission.
Taken as a whole, the burden of the staff's submission was that the definitive safety review which must take place before the plant can be licensed to operate; and the opportu-nity for a public hearing at that time, are the principal mechanism for resolving issues, such as this one, which arise in the course of construction.
Northern Indiana Pacific Service Co. (Bailly Generating Station, Nuclear-1), CLI-
, Dec. 12, 1979, Sl.op. at 3-4.
It is self evident that the staff practice described above is one of systematic abuse of discretion and contraven-tion of the statutory mandate with respect to construction
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permit amendments.
Unless and until the Commission addresses, itself to the fundamental issue of requiring c.p. amendments when significant changes or additions are made to a design during construction, " refining" the criteria governing the prior notice provisions for non-existent amendments is a fraud on the pablic and patently meaningless.
It is true that the proposed regulations would also govern operating license amendments and it is at this point that the second prong of the staff's traditional practice become significa.L.
The legislative history makes it abundantly clear that cases involving "no significant hazards considera-(
tion" were to be an exception from the general rule that notice and the opportunity for hearing should precede the authorization of amendments.
The commission was specifically directed to use the exception "with great care."2/
Instead, "no significant hazards consideration" has been so broadly interpreted as to stand this principle on its head.
In essence, the presumption of the staff is that amendments do not involve a significant hazards consideration unless it can be shown otherwise.
Operating license amendments are granted without prior notice as a matter of routine.
The proposed ragulations incorporate and codify the staff's practice.
They establish three criteria for judging whether an amendment requires prior notice:
if it would 2/
Supra, p.3.
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(1) involve a significant increase in the pro-bability or consequences of an accident previously evaluated, (2) create the possibility of an acci-dent of a type different from any evaluated previously, or (3) involve a significant reduction in a margin of safety.
The application of these three criteria in many cases will necessarily require the resolution of substantial fact'ual questions.
Indeed, these questions largely overlap the issues which bear on the merits of the license amendment.. That is, if the amendment involves a significant increase in the probability or consequences of an accident or significantly
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I decreases a safety margin, presumably it ought'not to be per-mitted.
It is our view that the staff's confusion of the issues bearing on the merits with the issues bearing on whether prior notice is required accounts for its traditional misappli-cation of the "no significant hazards consideration" exception.
The staff is apparently reluctant to suggest the existence of any serious questions about the propriety of an amendment and may view the finding that some significant hazards consideration is involved as carrying a negative connotation on the merits.
In any case, it is clear that "no significant hazards consideration" is only a threshold test governing exceptions to the prior notice rule.
The use of criteria which gov'rn e
the merits of the amendment is inappropriate, as is the resolu-tion of substantial factual issues.
The approach to this threshold question should be entirely different; the presumption should be that prior notice is required unless the amendment
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Jinvolves no significant previously unrevised safety issue.
That is, the test should be completely. neutral as to the~ merit.
of the amendment and keyed instead to whether or not it involves issues not previously reviewed in a. proceeding subject to public participation.
This would be in-harmony with the-legis-lative intent'of 42 USC 52239(a) and with its clear language.
Indeed, it is implicit in the use of the phrase "no significant hazards consideration" that the focus should be on whether a previously unreviewed issue exists, not on its resolution.
Otherwise.the phrase would have read "no significant hazards."
4 Finally, the criteria proposed by the Commission imply a' level of detailed review of applications far beyond what-is, in reality, the case. -Specifically, criteria #1 inquires whether the amendment would " involve a significant increase in
.the pre?tability or consequences of an accident previously evluated."3/
As a practical matter, neither license applica-tions nor staff reviews contain any useful information en the probability of particular accidents sequences.
Over the years, certain accidents have become included in the design basis as an exercise of what can best be described as the collective subjective judgment of the staff, utilities and vendors.
To our knowledge, neither the PSAR, FSAR or SER's associate any 3/
We note that this precludes consideration of the effects of an amendment on the probability or consequences of major reactor accidents which have not been "previously evaluated."
It is NRDC's and UCS' view that this exclusion is contrary to law and has no rational basis or technical justification.
- This tiew is well known to the NRC and will not be discussed' at length herein.
If probability or consequences are to be con-sidered, they must include the probability and consequences of
-the Class 9 accidents which the staff has not previously evaluated.
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particular quantitative probability to any accidents.
There-fore it is exceedingly unlikely that, without a substantial technical effort, any meaningful answer can be given to the question of whether and to what degree an amendment increases the probability of an accident.
It should be remembered that even with the enormous technical effort involved in WASH-1400, the Risk Assessment Review Group found that the margins of uncertainty associated with the probability figures are very great.
Even if the inquiry were susceptible of yielding a reasonably objective answer, the question is far too complex to be usefully addressed as a threshold test for providing prior notice of amendments.
In sum, this criterion is inappro-priate because it cannot possibly be addressed well with 1.anited time and resources and arguably cannot be addressed well even with great time and resources, and because, to the extent it is relevant and useful, it goes to the merits of an amendment and not to whether prior notice is required.
It can be reasonably predicted that, if adopted, the effect of this criterion will be to generate boilerplate in support of a finding that no significant hazards consideration exists.
Criterion #2 asks whether the amendment would " create the possibility of an accident of a type different from any evaluated previously."
The meaning of this criterion is unclear.
In particular, the rule does not refer to any grouping of accidents by " type" that would be employed as the benchmark for applying this criterion.
It is further unclear whether the term " type" of accident refers to very broad groups (e.g., LOCA, loss of feedwater) or whether the level of detail of analyses
( will be required to demonstrate -hat no new potential " type" of accident uay be created by the amendment?
The third criterion addresses whether the amendment Vould
" involve a significant reduction in a margin of safety."
With-out amplification, we find this standard essentially unintelli-gible.
It lacks both quantitative and qualitative parameters.
In the vast majority of situations, no quantitative margin of safety has been associated with a component or design.
It is extremely difficult, therefore, to imagine how this criterion would be applied in most cases in any objective fashion and, similar to the other criteria, even in cases when it can be a useful tool for analysis, it is appropriate at the merits stage, not the threshold.
CONCLUSION In conclusion, the proposed rule represents an attempt to codify historical staff practice which, while long-standing, is contrary to law and sound policy.
First, the staff has perverted the intent of the statute by simply refusing to consider construction permit amendments.
Licensees are routinely permit-ted to make changes and additions to the approved design without filing for construction permit amendments.
By the time.of the operating license review, these are literally cast in concrete.
It becomes exceedingly expensive, if possible at all, to reverse the decisions made during construction.
All of the fine words of the Commission with regard to its legal authority at the operating license stage, and even the existence of a few
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exceptions, do not alter that fact.
Not only does this policy frustrate public participation, it also fundamentally compro-mises the ability of the agency to do its job.
The proposed j
rule would permit the practice to continue.
Second, the staff has traditionally confused the question of the ultimate propriety of an amendment with the question of whether prior notice can be wu'ved.
The proposed rule would codify that confusion.
The criteria proposed effectively establish the unlawful presumption that notice can be waived except in unusual cases.
The statutory languange and legisla-tive history compel the opposite presumption.
In addition, they inappropriately focus on the merits of the amendment.
The NRC should promulgate a rule holding that prior
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notice and opportunity for hearing should be provided for construction permit and operating licences amendmen'es in all cases except those involving no significant previously-unreviewed safety issue.
In contrast to present practice, such a role would be fully consonant with the Atomic Energy Act and with the objective of permitting meaningful public and' NRC scrutiny of significant amendments without inhibiting the staff's ability to approve those amendments which are warranted.
Respectfully submitted:
)
. /
/
Ellyn/R. Weiss SHELDON, HARMON & WEISS 1725 I street, N.W.,
Suite 506 Washington, D.C.
20006 (202) 833-9070 DATED; May 23, 1980 counsel for Natural Resources Defense Council and Union of Concerned Scientists
l}A(,l- >
PDk Ca.endar No.141 97nt CONGREse i SENATE L
Rtroirr i
N o.97-113 Ist bion
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AUTIIORIZIN G APP ROPRI ATIONS TO TIIE NUCLEAR REGULATORY COMMISSION
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M AY 15,1981.-Ordered to be printed 13 @gi3)ative day, Filed under authority of the order of the Senate of M Ai Aeart 27),1981 Mr. SIMPsoN, flotn the Comrrittee on Environment und Pubhc Works, submitted the followmg REPORT ITo accurnpany S.1207)
The Committee on I nvironment und Public Works, reports an to the N uclear original bill (S.1207) to authorize appropriations Regulatory Commission in accordance with ection 26) of the Atomic amended, and section 305 of the Energy Energy Act of 1954, a3 amended, and for other purpose.s Reorganization Act of 1974, as and recommends that the bill do pass.
GENERAL STATEMENT The bill, as reported, authorizes $495,700,000 for salaries and expenses of the Nuclear Regulatory Commission (N RC) for fiscal year 1982. The authorization is $5 mdlion below the Commi-sion' requ~t for $500,700,000 the fiscal year cluded in the bill is an increase of $43.4 million overTne committee's 1981 funding level for the agency of $452,300,000.
recommendation will permit an increase of 96 permanent staff post-tions, from 3300 in fiscal year 1981 to 3396 in fiscal year 1982.for salaries and e The bill also authorizes $530,000,000 the agency for fiscal year 1983. This is the amount requested by the N RC for fiscal year 1983.
The committie recognizes the high priority of the nuclear regulatory including the need to assure the protection of the public health and safety. The committee al+o recognizes the need to addrew
. pr ogram, the present nuclear power plant licensing backlog. llowever, the committee also determined that the N RC must bear at least some 79--oio o af e
'>y e-S f
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14 to create an additional lengthening of the hearing process, as well as to add further confusion to the process. The Committee intends to monitor the Commission's efforts to further expedite the licensing process by, administrative means to assure that this statutory re-qutrement is carried out.
SnoLLY Aurxourxr (SzcTios 202)
SUMMAnY The bill amends section 189 n. of the Atomic Energy Act of 19M, as amended, to authorize the NRC to issue and to make immediately effective an amendment to a license upon a determination by the Commission that the amendment involves no significant ha'zards consider *ttion, notwithstanding the pendency before it of a request for a hearing.
Dtset'ssioN The NRC, on March 11, 1981, submitted to the Committee pro-posed legislation that would expressly authorize the NRC to issue a license amendment involving no significant hazanis consideration prior to hohling a requested public hearing. The legislation was mtroduced by request as S. 912.
On November 19,19S0, the United States Court of Appeals for the District of Columbia Circuit,in SAolly v. NRC, * *
- F.2d * *
- held that the NRC may not issue a license amendment, even if it involves no significant hazardt consideration, prior to holding a hearing requested by an interest ed person under section 189 a. of the Atomic Energy Act of 19M, as ar ended.
The case arose out of a determination by the NRC that a license amendment permitting the venting of krypton gas from the contain-ment building at the Three Mile Island Unit 2 facility into the at-mosphere involved no significant hazan!s consideration and therefore that the venting couhl take place notwithstanding a pending request for a hearing on the proposed order. Rejecting the NRC's interpreta-tion ofits authority under section 189 a., the U.S. Court of Appeals held that seation 189 n. entitles a person who so requests to a hearmg before a license amendment becomes efTective, irrespective of whether the amendment involves no significant hazards consideration. The Com-mittee provision, in effect, overrules the decision in Sholly v. NRC.
By including this provision, the Committee seeks to address the cancern expressed 1 y the Commission that a requirement that the NRC grant a requested hearing prior to mnking efTective a license amendment involving no significant hazards consideration could result in unnecessary disruption or delay in the operation of a nuclear power plant and could impo-e unnecessary regulatory burdens upon the N RC
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that are not related to significant safety benefits. At the same time, the Committee expects the NRC to exercise its authority under this sec-tion only m the case of amendments not involvmg sigmficant safety questions. Moreover, the Committee stresses its strong desire to pre-serve for the public a meanin:.:ful right to participate in decisons regarding the commercial use of nuclear power. Thus, the provision does not dispense with the requirement for a hearing, and the N RC, if requested, must conduct a hearing a ter the license amen iment f
takes e1Tect.
. n..
3 15 j
i i
This provision should he read in conjunction with section 302 of the bill directing the S F('. within 90 days after enactment. to promulgate regulations estabhshme stan lards f or tieternuning u hether an amenJ'
. 5 ment to a license involves no significan' hazards consideratioli[cInterin foDroviding or dispensing with prior notice ami pubhc coiiiQi, int on sU'cl determination and procedures for consultaugn __9n 2uch deternunation with t5 htate in w hich the facility is locatml The
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authority granted tha Commission under section 202 of the hdl does f
f ' noi tuhe' et ect until he Comminion has promulgated the standtird-T i'eQuired by secdonIQ1 for determining w hether a license amendment e
iiiioNes no sienificant haeard, consideratmn.
The Conunittee recogmzes that reasonable persons may ihtfer on
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whether a heense amendment mvolves a siemlicant hazards considera-tion. Therefore the Comnuttee expects the ('omnussmn to develop and promulgate standards that, to the mnxinutm extent praFTIFinde draw a clear dist'inction between heense amendments that involve a sienificant hazank considerution imd those t hat myolve no sigmticant
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hazards consideration. The Conniiiltee anticipates for example. that.
con 3btent with prior practice, the ('ommi-ion'- standard, u oubl not a "no significant hazards consideration" deternuna tion for
/ permit hconse amendments to permit rerackme of spent fuel pools. Wreover.
it expects that the ('omnussion. to the extent practicable, wdl develop and pronudgate standards shat can be upphed with ease and certamty.
In addition. he determinat mn of "no si. nificant hazards considera-tmn" shoubl represent a judement on the nature of the issues rased by the license amendment rather than a concluston about the merits
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of those issues.
Recogrizing that the rulemakin;7 prore-- often can take a seni-ticant period of time, the Comnut ter encouraue-the ('ommi--ton to I
beem preparme it, propo-ed -t andard-a- -oon a-po--ib:e, even prmi I
to enactment of ths piovsmn. In that re2ard, the t 'omnut tee notr-that t he ( 'oninn-ion has already i-ned for pubhc comment i ule i
melmhne standard-for deternumne w het hei an amendment mvolve-1 i
no -icm tica n t hazard-con-nlerai mn. The ( 'om nu t t re beheves t hat the ('omnu-ion -hould be able to tuuhl upon t hs pa-t etim t. and it e x per t - the ( 'om nu-mn to art expeihtioudy m promulca t mu the g
retplu ed -t andard-w it hm t he time -pecified m -ertion 301.
g
---4 The rmpurement m -ertion 301 t hat t he ( 'omnu-ion promul;a te V
i criteria for provbbn2 or di-pen ing with odof n6tice anil mIhhr
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aunemhnent conunent on a orono-ml determmation that u
involve-no sienitirant hazarJ-con-iderntion refiert-the mtent of the
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('oinnut tee t hat, w herever practirable, the ('onims-lon -houhl publ' h s
G notice of, and provale for puhhc comment on. -urh a propo-ed deter-3
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mination. The ('omms-ion ha-advsed the ('omnuttre that m -ome cases tFe need to s-ne t he propo-ed amendment u dl arse epm kly, and fadure to urt on the amendnwnt may result m t he -but-dow n or deratme of the plant. The ('onumt tee rm oemze-ihat the need to si promptly m <ich 4t uation, may form lo-e the oppor t unit y for art poor pubhr not we and comment. liowever, in all ot her ca-e-the I
t 'onum t t ee e x per t - the (5nnnu-ion to exerese it, aut hor it y m m.au,er tha' u nl provule for pnor pubbe notice at d comment.
s A %c t mn 301 of t he bdl al-o requa e-t he ( 'omnu-. sn to promul a t e prm edun - for ron-ult m2 uith a State m JTm h IEJ i, Tevniif imilit i E
16 is located on a determination that an amendment to the facilitt license involves no significant hazanis consideration. The requiremen't complements the directive in section 202 that the ('ornmirion, in determining whether an amemirnent mvolves no significant hazards consideration, shall consult w nh the situs State. The ('ommittee expects that the procedures for State consultatmn wi 1 melude the following elements:
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(1) The State wouhl he notified of a licensee,.equest for an a mend men t ;
(2) The State woubl he advised of the N R("s evaluation of the amendment request ;
i3) The N R("s proposed det ernu na t ion on w het her the license amendment involves no sigmtirant hazanis considera-tion would he discus-ed w ith the st ate and t he N R("s reasons for naiking that deternunation would he exphiined to t he state; (4) The N RC w ould listen to and ron-ider any comment s rovided by the State offiiial de-tenated to cons 0lt with the
.' RC; and d) The N R(' w ould nuike a good faith at tempt to ron-ult with the State prior to t-suing the brense amenilment.
At t he -a me time, how ever, t he proceduie-for St at e con-ult ation u olild not :
right to veto the pr opo-eil N R('
- 51) Crive the State a iletermin alion ;
(2) Cnive the Ntate a right to a hearing on t he N N(' ilelermina-tion before the amendment heromes ef fec t ive (3) tiive the State the richt 'o in-ist upon a postponement of the N RC determin ition or iruunce of the amendment oi i
(4) Alter present provi.sion, of iaw that reserve to the N R('
)
excliisive responsihihty for set,ing and enforring radioloctral
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healtb and safety requirements for nuclear power plant 3.
In regiiiring the N R(' to exerri-e gooil faith in runsulting with y
f a state in deteimining whether a license amendrnent involves no j
signitir ant hazards consideration, the ( 'o m mit t ee reroenizes that a limited niunber of rases may mise w hen the N R(', depite its cood faith etTorts. i annot contact a responsible State official for purposes of ['rior con 3 nit ation. Inahdit y to consult with a responsible State oflirial followine cood faith athmr ts shoubt not prevent the N W' from making eIIeEtive license amendinent invohiii[~no siemfiNat
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hazards consiileration. if the N HC deems it necesary to doiil the 3 hut ilown of a pow er phint.
~The Committe e directs that the N R(' report to it monthly on its determination 3 under section 2P2 of the hill.
S A bot AG E alien D\\t ENT ( S EM ion 203) sCM \\f A RY The hili amends section 236 of the Atoonc Energy Art of 1 %4, as amended, by.nbling a new subsei tion h. that s u bj ec t s to crunund penalties any person u ho intentionally and wdifully causes or at tempt s to c a u se an mterru pt mn of the nm und operation of any f aiihty specifies :n subsect ion a. t hrough t he una ut horved u se of, or t.im p. rme w it h, t a m.o h mery, com ponen t s, or < om rob of such f arihty.
24 particularly if the Commis ion seeks to carry out its statutory au-thority to protect public health and safety and to keep the Corigress
" fully and currentiv informed."
Be'cause of unresolved questions about the role the Commission should play during an emergency at a nuclear facility, the Committee decided to restrict the amount of fumis available' for e-tablishing a nuclear data link system until the Commi<sion has submitted a report to Congress wfiich, among other things, discusses the specific role or roles of the NRC Operations Center personnel in responding to nuclear power plant accidents, the information needs of such per-sonnel to carry out each such role, and the costs and benefits of alternative systems for satisfying such information need<.
Based on the Commission's te-timony on this i-sue, the Committee supports the nuclear data link conce'pt for several reasons. First, it will enable the NRC to monitor an accident from its Operations Center during the period (2 to 6 hours6.944444e-5 days <br />0.00167 hours <br />9.920635e-6 weeks <br />2.283e-6 months <br /> after notification of an accident) before the NRC Director of Site Operations arrives at the plant site.
Second, it will enable a larger pool of experienced technicians to analyze data from a plant suffering an accident and to participate in discussions on appropriate measures to resolve the problems. Third, it will assist the Commission in fulfilling its re<ponsibility to make recommendations on what, if any protective action, a st' ate should take in response to an emergency at a nuclear facility. Fourth, because it can instantaneously transmit key plant paramenters to the NRC Operations Center, it can reduce the mterference with site operations l
and the transmission of potentially inaccurate data that can occur when the Commission must rely upon telephone communication of
+
information from its on-site representative. Finullv, it will enable the NRC to exercise its statutorv responsibility in'those rare cases when a licensee, faced with a choice between' damaging expensive I
equipment or releasing radiation into the environment that could harm the public, may wish to take the latter cour-e even though the f< mer alternative is an equally efTective response.
1 IIEAntNGS The Committee, and its Subcommittee on Nuclear Regulations, held four hearings and heard from 26 witnesses to develop a public record for committee review and action on the bill.
On February 26,1981, the Committee held an authorization hearing to review the' NRC's fiscal years 1982 and 1983 proposed budget.
A broad overview of the NRD's fiscal years 1982 and 1983 programs was presented by then-Chairman John F..thearne, and Commissioners Joseph M. Hendrie, Victor Gilinsky, and Peter.\\. Bradford. Support-ing testimony for the record was supplied by: William J. Dircks, Executive Director for Operations; Harold 'R. Denton, Director, Office of Nuclear Reactor Regulation; Victor Stello, Jr., Director, Office of Inspection and Enforcement: John G. Davis, Director, OGice of Nuclear Af aterial Safety and SafeI*lescarch; and Learned W.
'I uards; Robert B. Minogue, r
Director, Office of Nuclear Regulatory Barry, Controller.
On March 31,1981, the subcommittee held another authorization h
J hearing, focusing on delays in the NRC licensing process and the impact of the SAolly v. NRC judicial decision. Testifying on behalf m
m m
25 of the Commission on both topics were Chairman Joseph AI. Hendrie, and Commissioners John F. Ahearne, Victor Gilinsky, and Peter A.
Bradford. William S. Lee, President and Chief Operating OfIicer, Duke Power Company, accompanied by Alichael Atiller, Chairman, Atomic Industrial Forum Lawyers Committee; and Ellvn R. Weiss, General Counsel, Union of Concerned Scientists, testified on delays in the NRC licensing process. Robert Hager, Christic Institute; Jay E. Silberg, Shaw, Pittman, Potts & Trowbridge; and John J. Brown, International Union of Operating Engineers, testified on the impact of the Sholly v. NRCjudicial decision.
A third authorization hearing was held on April 27,19S1, focusing on State and local radiological emergency response planning and Federal radiological emergency response preparedness. Chairman Josepn AI. Hendrie, accompanied by Victor Stello, Jr., Director, OfIice of Iapection and Enforcement, and Brian K. Grimes, Director, Division of Emergency Preparedness, testified on behalf of the Com-mission on both topics. John AlcConnell, Acting Director of the Federal Emergency Afanagement Agency, accompanied by John Dickey, Director, Radiological Emergency Preparedness IJivision, and George Jett, General Counsel, testified on behalf of FEAIA on both topics. Testifving on the subject of federal radiological emergency response prepare (Iness were: Joseph P. Hile, Acting Assistant Ad-mmistrator for Regulatory Affairs, Food and Drug Administration; and Edwant F. Tuerk, Acting Assistant Administrator for Air, Noise, and Radiation, Environmental Protection Agency.
Finally, on April 29,1981, the subcommittee held an Ituthorization hearing focusing on the NRC's research program. Chairman Joseph AI. Hendrie and J. Carson Alark, Chairman, Advisory Committee on Reactor Safeguards, testified for the Commission. Accompanying Chairman Hendrie were Robert B. Alino-ue, Director, Office of Nuclear Regulatorv Research, and Denwoo8Ross, Deputy Director, Office of Nuclear llegulatory Re3earch Cosr or Lraisi.rrios Section 252. (a)(1) of the Legislative Reorganization Act of 1970 requires publication of the Committee's estimate of the costs of reported legislation, together with estimates prepared by any Federal agency. The estimate for fiscal year 1982 is $495.7 million, I percent below the Commission's budget request of $500.7 million. The esti-mate for fiscal ', ear 1983 is $530 million.
While it is cimtemplated that most programs will continue beyond
" ~
fiscal year 19S3, future funding levels depend upon decisions which a
have not yet been made. Following are estimates for projected NRC budget authority, based upon NRC information:
ratimere i
Fiscal years :
( = 6me ne p
=
1982..__._____..__...___._.............._____.__.....___.. 5495.7 F
19S3.__... ____............._____....__....__............ 530 1984............ __________............_____..__._ ____..__ 530 3:
19M _....... _____.....______....._~................____..__ 530 1986._____......____....___.
........______..........___.... 530
!E Section 403 of the Congressional Budget and Impoundment Con-trol Act requires each bill to contain a statement of the cod of such bill prepared by the Congressional Budget Office That report follows-
~~
--_a
1 1
30 The [ temporary] interim operating license shall become ejhetire upon issuance and shall contain such tenus uml comlitions as the Com-mimion may deem necessary, including the duration of the licen-e and any provision for the extension thereof [und the requirement that the beenwee not retire or di-mantle any of its existing generating capacity on the ground of the availability of the enpacity from the facility which is operating under the temporary license]. Any [deci-sion or other document]fnal order authorizing the iswance of any
[te,mporary] interim operating license pursuant to this section shall recite with specificity the reasons justifying the [ issuance] fndings under this subsec: ion, and shall be transmitted upon such issuance to the Committees on interior and Insulari1 fairs and Energy and Commerce of the House of Representatires and the Committee on Environment and Public it'orks of the Senate. The final order of the Commi-ion with
~
re<pect to the issuance of [a tempornry] an interim operating license shall be subject to judicial review pursuant to the Act of December 29, 1950, as amended (ch. 1189,64 Stat.1129). The requirements of uction 189 a. of this ilet seith respect to the issuance or amendment of. facility licenses shall not apply to the issuance or amendment of an interim operating license under this section.
- c. [The] ilny hearing on the application for the final operating license for a facility otherwise required pursuant to section IS9 n.
shall be conchided as promptly as practicable. The Commirion shall
[ vacate the temporary) suspend the interim operating license if it finds that the applicant is not pro-ecutin~ the application for the final operating license with due diligence. [ssuance of [a temporar an intmm operating license [ pursuant to] under sub-ection h.y]f o
this section shall be without prejudice to the [po<ition] right of any party to [the proceeding in which] raise any usue in a hearing
[is otherwise] required pursuant ta section 189 n.; and failure to j
assert any ground for demal or limitation of [a temporary] an interim operating heense shall not har the assertion of such ground in con-nection with the issuance of a subsequent final operating license.
ilny party to a hearing required pursuant to section 189 a. on the jnal operating license for a facility for schich an interim operating license has been issued under subuction b., and any member of the <1tomic Sa and Licensing Board conducting such hearing, shall promptly not the Commission of any information made availabic as part of hearing, that the terms and conditions of the interim operating suc license are not bring met, or that such terms and conditions are not suf-fcient to comply teith the prorisions of paragraph (2) of subsection b.
- d. [The authority under this section shall expire on October 30, a
1973.] The Commission is authori:ed and directed to adopt such ad, min-sstrative remedies as the Commwswn deems approprsate to mammuze sectw,need for issuance of interim operating licenses pursuant to this
-?
the n.
- e. The authority under this section shall expire on December 31,
=
1983.
2239. Hearings and Judicial Review.-
revoking, or amending of any h Act, for the granting, suspending,g
- a. In any proceeding under this eense or construction permit, or g
application to transfer control, and in any proceeding for (Lc issuance sc 7
r 31 or modification of rules and regulations dealing with the activities of licensees, and in any proceedmg for the payment of compensation, un
[
award, or royalties under sections 153,157,186 c., or 188, the Com-mission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall ndmit unv such person as a party to such proceeding. The Commission shall hohl n hearing after thirty days' notice und publiention once in the Federal
[
Register, on each application under section 103 or 104 b. for a con-struction permit for a facility, and on any upplication under section 104 c. for a construction permit for a testing facility. In cases where such a construction permit has been issued following the holding of such a hearing, the Commission may, in the nbsense of a request therefore by any person whose interest may be affected, iysue an operatmg heense or an amendment to a construction permit or nn amendment to an operatinglicense without a hearing, but upon thirty g
days' notice and publication once in the Federal Register of its intent
=
L to do so. The Commission may dispense with such thirty days' notice and publication with respect to any application for an amendment
[
to a construction permit or an amendment to an operating license EE upon a determination by the Commission that the amendment in-E volves no significant hazards consideration. The Commission is au-5 thorized to issue and to make immediately efecture an amendment to a
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a license upon a determination by the Commissnon that the amendment K
intwirea no signifcant hazards consideration, notttithstanding the pen-w k
dency before it of a requestfor a hearingfrom anyperson. In determining under this subsection whether an amendment sntwires no signufcant
_=-
hazards consideration, the Commission shall consult seith the State en w
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whrch thefacility is located. The authority under this subsection to tasur u
5 and to make immediately efectice an amendment to a license shall take G
Q efect upon the promulgation by the Commission of standards for detcr-T f
mining tchether an amendment to a license snvoices no sign ufcant C'
hazartis considerelion.
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22&l. Sabotage of Nuclear Facilities or Fuel.-
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- a. Any person who intentionally and willfully destroys or cau+cs p-physical damage to, or who intentionally and willfully attempts to r
c destroy or cause physical damage to-E (1) any production facility or utilizetion incility liceased under s
y this Act,
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(3) any nuclear waste storage facility licensed under this Act, or e
(3) an nuclear fuel for such a utilization facility, or any spent
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c nuclear uel from such a facility, shall be fined not more than $10,000 or imprisoned for not more than f
ten years, or both.
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- b. Any person who intentionally and willfully causes or attempts to e
cause an snterruption of normal operation of any suchfacility through
~
the unauthorized use of or tampering with the machinery, components or
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controls of any such facility, shall be jned not more than $10,G00 or imprisonedfor not more than ten years, or both.
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I U M N:t? % R April 17,1980 Pl.YvJige gig (45 FR 204qQ Secretary of the Commission ATTN: Docketing and Service Branch
- U. S. Nuclear Regulatory Commission Washington, D. C.
20555
Dear Sir:
We have reviewed the proposed amendments to 10 CFR Parts 2 and 50_per-taining to "No Significant hazards Consideration" (Federal Register Vol. 45, No. 62, March 28,1980, Page 20491).
'Ihe following comment is offered on Section 50.91(b2):
A Commission determination that no significant hazard con-sideration exists because operation in accordance with a proposed license amendmcnt does not " create the possibility of an accident of a type different from any evaluated pre-viously" could pose major problems of interpretation and litigation.
There are infinite numbers of insignificant types of accidents that can be postulated for any license amendment, particularly by individuals whose interest is to needlessly delay nuclear plant operation and to utilize the public hearing process as a publicity forum for their broader objective of shutting down necessary generating plants. This pro.-icion of the proposed 10 CFR 50 amendment should be deleted. Alternatively, the phrase should be restated as follows:
"...(2) create the possibility of a credible accident of a type dif ferent f rom any evaluated previously, and having potential consequences approaching those specified in 10 CFR Part 100, o r..."
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V Podlan:f GeneralElectricCompany Secretary of the Commission April 17,1980 Page 2 The following comment is offered on Section 50.58(2):
A provision should be added to state that proposed license amendments need not be prenoticed in the Federal Register if they result from conditions that are prescribed by an Atomic Safety and Licensing Board. Prior approvals by the Commission that must be granted for facility changes meet-ing established criteria that are prescribed by license conditions or Technical Specifications should also be exempt from prenoticing in the Federal Register.
Your serious consideration of these comments is appreciated.
Since rely,
s)
[. ny- - - -,
W. J.
d Vi resident Engineering-Cons truction WJL/JWL/ma
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H5 FR.20%l Docketing and Service Branch US NRC May 21,1980 Samuel J. Chilik, Secty, of the Commis sion U. S. Nuclear Regulatory Commission Washington, D. C. 20555 re: Proposed rule, Fed.
Register Vol. 45, No. 62, Friday, Mar. 28,1980
Dear Sirs:
No Significant Hazards Consideratioa 10 CFR Parts 2 and 50 The term "significant Hazard 88 appears repstedly throughout the proposed rulemaking yet it is no where defined specifically, leaving "significant" to be anything that may be either politic or expeditiohs at any given time.
The proposed rule lists " examples of amendements*8 either likely or Not likely to involve significant hazards consideration. Amende ments that are to be considered $t likely to involve significant hazards consideration, and so would be excluded from having a public hearing when the Commission issues an operating lic(nse or an amendment to an operating license or consturction permit for a facility, should be specifically stated in any "No Significant Hazards Conside-ation".
CLR A Obiection is hereby noted to example Not likely to involve significant (vi) A change which either hazards consideration increases the probability or consequences of a previously analyzed accident or reduces a safety margin but for which the results of the change are within regulation acceptance criteria; The U.S. NRC, particularly after TMI, and with all the other problems of nuclear safety, should NOT accepts a change, even "within regulation" that may increase the probability of an accident or reduce a safety margin.
The nuclear industry has enough trouble trying to meet the requirements that now exist, in an attempt to ensure the health and safety of the public, without being permitted to downgrade this safety, even within " regulation acceptance criteria", when,in fact, these regulations need up-grading. The last thing the nuclear industry needs is another step backwards, and without a public hearing at that.
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M5 FR 20fid COMMENTS BY THE NATURAL RESOURCES DEFENSE M
COUNCIL AND THE UNION OF CONCERNED SCIENTISTS ' N r'
ON PROPOSED AMENDMENTS TO 10 CFR PARTS 2 AND 50:
NO SIGNIFICANT HAZARDS CONSIDERATION These comments on the NRC's proposed rulemaking to define "no significant hazards consideration" are offered by the Natural Resources Defense Council, Inc. (NRDC) and the Union of Concerned Scientists (UCS).
NRDC is a non-profit public interest organization, with a membership of over 45,000 persons.
NRDC is dedicated to the defense and preservation of the human environment and the wise use of natural resources.
The organization has a strong interest in ensuring that the risks posed by nuclear energy are mini-mized and has actively participated in many proceedings before the NRC.
UCS is a coalition of scientists, engineers and other professional, supportedby the financial contributions of over 90,000 public sponsors.
UCS has published a number of independent technical studies in the fiels of nuclear safety and energy policy and, like NRDC, has frequently par-ticipated in proceedings before the NRC.
NRDC and UCS believe that the proposed rule is contrary to law and to sound policy.
The Atomic Energy Act, as amended, provides for a mandatory public hearing as a prerequisite to the issuance of a construc-tion permit for a nuclear power plant.
42 USC 52239 (a).
Prior to the 1962 amendments to the Act, a hearing was also required in all cases before the issuance of an operating license.
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4-s.-. While P.L.87-615(1962) removed the requirement of a hearing at.the operating license stage, it balanced this by providing that amendments to the constrilction permit and operating license should be issued only after notice and the opportunity for hearing, except in cases involving "no significant hazards consideration."
The statutory language is as follows:
In any proceeding under this chapter,'for the granting, suspending, revoking, or amending of any license or construction permit
. the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding.
The Commission may dispense with such thirty days' notice and publication with respect to any application for an amendment to a construction permit or an amend-ment to an operating license upon a determination by the Commission that the amendment involves no significant hazards consideration.
42 USC S2239(a)
Thus, the law provides the opportunity for a hearing on all amendments, but permits the Commission to dispense with the prior notice provisions only in cases involving no significant hazards consideration.
l The legislative history of the 1952 amendments shows that Congress was &;11y aware of the potential damage to the public 1
interest from removing the mandatory operating license hearing and Congress specifically viewed the strict provisions for prior notice and opportunity for hearing on amendments as a major means to ensure that the public interest would not be compromised by indiscriminate changes to the proposal after it had passed through the period of public scrutiny.
The Senate Report addresses this issue as follows:
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5 This amendment although relaxing the mandatory hearing requirement, should not prejudice the public interest in' reactor safety determinations.
A mandatory hearing will still be held at the critical point in reactor licensing - the con-struction permit stage - where the suitability' of the site is to be judged.
Succeeding regula-tory actions will'take place only upon publica-tion and sufficient advance ~ notice to afford an interested party the opportunity to intervene.
Finally, it is expected that the authority given AEC to dispense with notice and publication would be exercised'!_'th great cara and only in those instances where the application presented no signi-ficant hazards consideration.
U.S.
Code Cong. & Ad. News, 87th Cong.,
2.d.,
Sess. 2207, 2214-2215 (1962).
Emphasis added.
Further, the Senate Report took particular note that the possibilities for mischief.are increased proportionally to the number of issues which remain unresolved at the time the construction permit is issued.
In cases involving important post-construction permit unresolved safety problems, the
-legislators noted that the opportunity for a hearing on c.p.
+
amendments is not enough; the Commission was directed to order hearings on its own motion in these circumstances.
The committee is cognizant of the provisional construction permit procedure wh'ich allows the issuance of a permit, subject to further re-search and development work, before becoming final.1/
vhen this research and development.
1/
Although the NRC no longer issues " provisional" construc-tion permits, it continues the practice of issuing construction permits subject to the later resolution of unresolved safety problems.
Gulf States Utilities Company, (River Bend Station Units 1 and 2) AuAB-444, 6 NRC 760, 766 (1977).
Thus, the quoted-co:mments from the Senate Report are still fully applicable.
See also, Northern Indiana Public Service Co.,
(Bailly 5
j Generating Station, Nuclear-1) CLI Dec. 12, 1979, Sl.op.
l at 3-4.
i
.c
. c work is directed toward the resolution of a difficult safety problem of unusual public importance it is expected that the Commission, on its own motion, would order a hearing before significant mmendments or authorization of the final construction permit were issued.
Id. at 2214.
The plain words of the statute, combined with its legis-lative history, envision an orderly, fair and open process' which begins with public hearings on each construction permit application, followed by notice and the opportunity for hearing on all amendments and on the operation license and its later amendments.
The only narrow exception'is that the prior notice provision may be waived for a certain class of amendments, those involving no significant hazards consideration.
In con-trast to this statutorily mandated process, the Commission has developed a two-pronged practice which operates to frustrate public participation and is inconsistent.with Congressional intent.
First, the staff has actively discouraged the holders of construction permits from filing for amendments when changes are made to the plant during the process of construction. Since such amendments tend to cause administrative problems and l
require the commitment of staff resources, it is well kncwn that the utilities are encouraged to wait until the ope ating license review to seek post-hoc approval of modifications.
The NRC has no regulations describing the situations which require filing for an amendment.
The result is that no con-struction permits have ever been amended for a design change.
L.In a recent case, the Commission requested the staff to describe in detail its practice in such cases:
The staff's response stressed the preliminary nature of the design information submitted at the construction permit stage, and the brevity-and lack of specificity of the construction itself.
It noted that the Commission's regula-tions specifically authorize the issuance of a construction permit even though not all technical information has been supplied.
The staff con-trasted the preliminary design information supplied at the construction permit stage with the'far more detailed review of final design information at the operating license review stage.
The staff observed that as neither the Atomic Energy Act nor the Commission's regulations spell out the commit-ment made by, or the authority granted to, holders of construction permits, design changes proposed after issuance of a construction permit have long been treated on an ad hoc basis by licensees and staff.
The staff stated that it learns of design changes during construction through formal or informal notification by licensees; through the inspection and enforcement effort; and sometimes only when the facility is ready far operating license review.
Depending on 1egree of signi-ficance, a proposed change mal 4.ve detailed staff review, but more commonly, o cailed review is deferred to the operating lice se review stage.
Although a sufficiently major change could warrant a construction permit amendment, a review of 88 extant construction permits indicated that none had been amended for a design change, according to the staff's submission.
Taken as a whole, the burden of the staff's submission was that the definitive safety review whi:h must take place before the plant can be lice.' sed to operate; and the opportu-nity for a public hearing at that time, are the principal mechanism for. resolving issues, such as this one, which arire in the course of construction.
Northern Indiana Pacific Service Co. (Bailly Generating Station, Nuclear-1), CLI-
, Dec. 12, I
1979, Sl.op. at 3-4.
It is self evident that the staff practice described above is one of systematic abuse of discretion and contraven-tion of the statutory mandate with respect to construction
]
L. '
permit amendments.
Unless and until the Commission addresses itself to the fundamental issue of requiring c.p. amendments when significant changes or additions are made to a design during construction, " refining" the criteria governing the prior notice provisions for non-existent amendments is a fraud on the public and patently meaningless.
It is true that the proposed regulations would also govern operating license amendments and it is at this point that the second prong of the staff's traditional practice become significant.
The legislative history makes it abundantly clear that cases involving "no significant hazards considera-tion" were to be an exception from the general rule that notice and the opportunity for hearing should precede the authorization of amendments.
The Commission was specifically directed to use the exception "with great care."2/
Instead, "no significant hazards consideration" has been so broadly interpreted as to stand this principle on its head.
In essence, the presumption of the staff is that amendments do not involve a significant hazards consideration unless it can be shown otherwise.
Operating license amendments c*e granted without prior notice as a matter of routine.
The proposed regulations incorporate and codify the staff's practice.
They establish three criteria for judging whether an amendment requires prior notice:
if it would 2/
Supra, p.3.
E
_7 (1) involve a significant increase in the pro-bability or consequences of an accident previously evaluated, (2) create the possibility of an acci-dent of a type different from any evaluated previously, or (3) involve a significant reduction in a margin of safety.
~
The application of these three criteria in many cases will necessarily require the resolution of substantial factual questions.
Indeed, these questions largely overlap the issues which bear on the merits of the license amendment.. That is,-
if the amendment involves a significant increase in the probability or consequences of an accident or significantly l
decreases a safety margin, presumably it ought not to be per-
~
mitted.
It is our view that the staff's confusion of the l
issues bearing on the merits with the issues bearing on whether prior notice is required accounts for its traditional misappli-cation of the "no significant hazards consideration" exception.
l The staff is apparently reluctant to suggest the existe,nce of any serious questions about the propriety of an amendment and i
may view the finding that some significant hazards consideration l
[
is involved as carrying a negative connotation on the merits.
In any cas.. it is clear that "no significant hazards i
l consideration" is only a threshold test governing exceptions L
to the prior notice rule.
The use of criteria which govern the merits of the amendment is inappropriate, as is the resolu-i
(
tion of substantial factual issues.
The approach to this threshold question should be entirely different; the presumption should be that prior notice is required unless the amendment
~
. involves no significant previously unrevised safety issue.
That is, the test should be completely neutral as to the merit of the amendment and keyed instead to whether or not it involves issues not previously reviewed in a-proceeding subject to public participation.
This would be in harmony with the legis-lative intent of 42 USC S2239 (a) and with its clear language.
Indeed, it is implicit in the use of the phrase "no significant hazards consideration" that the focus should be on whether a previously unreviewed issue exists, not on its resolution.
Otherwise the phrase would have read "no significant hazards."
Finally, the criteria proposed by the Commission imply
~
a level of cstalled review of applications far beyond what is, in reality, tha case.
Specifically, criteria #1 inquires whether the ameniment would " involve a significant increase in the probability or consequences of an accident previously evluated."3/
As a practical matter, neither license applica-tions nor staff reviews contain any useful information on the probability of particular accidents sequences.
Over the years, certain accidents have become included in the design basis ar an exercise of what can best be described as the collective subjective judgment of the staff, utilities and vendors.
ro i
our knowledge, neither the PSAR, FSAR or SER's associate any 3/
We note that this precludes consideration of the effects Mof an amendment on the probability or consequences of major reactor accidents which have not been "previously evaluated."
It is NRDC's and UCS' view that this exclusion is contrary to law and has nn rational basis or technical justification.
This view is well Anown to the NRC and will not be discussed at length herein.
If probability or consequences are to be con-sidered, they must include the probability and consequences of the Class 9 accidents which the staff has not previously evaluated.
l
4 particular' quantitative probability to any accidents.
There-I fore it is exceedingly unlikely that, without a substantial
- technical offort, any meaningful answer can be given to the question of whether and to what degree an amendment increases the probability of an accident.
It should be remembered that even with the enormous technical effort involved in WASH-1400, the Risk Assessment Review Group found that the margins of uncertainty associated with the probability figures are very great.
Even if the inquiry were susceptible of yielding a reasonably objective answer, the question is far too complex j
to be-usefully addressed as'a threshold test for providing L
prior notice of amendments.
In sum, this criterion is inappro-priate because it cannot possibly be addressed well with-limited time and resources and arguably cannot be addressed well even with great time and resources, and because, to the extent it is relevant and useful, it goes to the merits of an amendment and not to whether prior notice is required.
It can be reasonably predicted that, if adopted, the effect of this criterion will be to generate boilerplate in support of I
a finding that no significant hazards consideration exists.
Criterion 42 asks whether the amendment would " create the possibility of an accident of a type different from any evaluated previously."
The meaning of this criterion is unclear.
I l
In particular, the rule does not refer to any grouping of c
accidents by " type" that would be employed as the benchmark for applying this criterion.
It is further unclear whether the term " type" of accident refers to very broad groups (e.g., LOCA, l
loss of feedwater) or whether the level of detail of analyses
. will be required to demonstrate that no new potential " type" of accident may be created by the amendment?
The third criterion addresses whether the amendment'would
" involve a significant reduction in a margin of safety."
With-out amplification, we find this standard essentially unintelli-gible.
It lacks both quantitative and qualitative parameters.
In the vast majority of situations, no quantitative margin of safety has been associated with a component or design.
It is extremely difficult, therefore, to imagine how this criterion would be applied in most cases in any objective fashion and, similar to the other criteria, even in cases when it can be a useful tool for analysis, it is appropriato at the merits stage, not the threshold.
CONCLUSION
~
i In conclusion, the pr.>osed rule represents an attempt to codify historical staff practice which, while long-standing, is contrary to law and sound policy.
First, the staff has perverted the intent of the statute by simply refusing to consider construction permit amendments.
Licensees are routinely permit-ted to make changes and additions to the approved design without filing for construction permit amendments.
By the time.of the operating license review, these are literally cast in concrete.
l It becomes exceedingly expensive, if possible at all, to reverse the decisions made during construction.
All of the fine words of the Commission with regard to its legal authority at the i
operating license stage, and even the existence of a few
^
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l exceptions, do not alter that fact.
Not only does this policy frustrate public-participation, it also fundamentally compro-l-
mises the ability of the agency to do its job.
The proposed j
rule would permit the practice to continue.
Second, the staff has traditionally confused the question
.of the ultimate propriety of an amendment with the question of whether prior notice can be waived.
The proposed rule j
would codify that confusion.
The criteria proposed effectively establish the unlawful presumption that notice can be waived l
except in unusual cases.
The statutory languange and legisla-tive history compel the opposite presumption.
In addition, they inappropriately focus on the merits of the amendment.
The NRC should promulgate a rule holding that prior notice and opportunity for hearing should be provided for i
construction permit and operating licences amendments in all i
cases except those involving no significant previously-unreviewed safety issue.
In contrast to present practice, such a role would be fully consonant with the Atomic Energy Act and with the objective of permitting meaningful public and' l
NRC scrutiny of significant amendments without inhibiting the staff's ability to approve those amendments which are warranted.
I Respec tfully submitted:
i l
f7 8LL M HD Ellyn/ R.
Weiss SHELDON, HARMON & WEISS l
1725 I Street, N.W.,
suite 506 1
l Washington, D.C.
20006 (202) 833-9070 DATED; May 23, 1980 Counsel for Natural Resources Defense Council and Union of Concerned Scientists
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i ISHAM, LINCOLN & BEALE COUNSELORS AT LAW CN C FIR ST N ATIONA L p.A2 A FOHTV-SCCONO FLOOR CmeC AGO. ILLINol$ 606C3 TELEPHONE 312-558 7500 TC;.tx: 2 5286 waSMtNGTON CFFICC n20 CONhCCtecut avtwt.N W May 27, 1980
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3J ATTENTION:
Docketing and Service Branch V7.,
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Dear Sir:
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This law firm has been requested by Common Edison Company to submit comments on its behalf in respect of the NRC's proposed rule on "Significant Hazards Considera-tions," 10 CFR 550.91.
The proposed rule was published for comment on March 28, 1980 at 45 Fed. Reg. 20491.
l In general we believe the proposed rule would be an improvement.
At the outset, it is clear that Section 189a of the Atomic Energy Act of 1954 (the "Act") contemplates that while all licensing actions must be accompanied by the opportunity for a public hearing, only those involving "sig-nificant hazards considerations" must be preceded by such hearings, if requested.
The Act itself strikes this balance between the competing policies of fostering public partici-pation and the need for efficiency in the licensing process.
Thus any criticisr. of the proposed rule on the grounds that it might tend to limit public participation is not well taken.
In the past, the Commission's interpretation of "significant hazards considerations" has seemed ad hoc, arbitrary and inscrutable; the proposed rule is a welcome attempt to increase the predicability of the NRC's decisions in this area.
The parallelism between the definitions of "unreviewed safety question" in 10 CFR 550.59 and "signifi-cant hazards considerations" in the proposed rule seems appropriate, since a finding that the former exists requires the licensee to apply to the NRC for a license amendment, while the latter finding, that the requested change is "significant" from a safety standpoint, leads the NRC to w:newheW by ca d.6 M.'mdC.:J; A
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S. Nuclear Regulatory Commission Page Two May 27, 1980 pre-ritice the issuance of the requested amendment.
- However, it is important that one point be clarified.
Licensees make their judgments whether "unreviewed safety questions" exist based on the safety analysis reports and technical specifications for their individual facilities.
The Commission, on the other hand, should be free to look at safety analyses previously done either generically or with respect to other facilities in determining whether a "significant hazards consideration" exists for purpose of proposed 10 CFR 550.91.
Section 189a of the Act clearly calls for the Commission's best judgment as to whether significant hazards considerations exist.
It would be artificial and counter-productive for the Commission to put on blinders in making this determination.
We support the Commission's intent to incorporate in a regulatory guide examples of significant hazards consid-crations.
The particular examples set forth in the " supple-mentary information" accompanying the proposed rule are in some cases rather vague, and should be supplemented by more specific illustrations.
In particular, we assume that NRC start-up orders following shutdown of facilities for lack of concurrence in state and local emergency plans pursuant to the proposed emergency planning rule, 44 Fed. Reg. 75167 (December 19, 1979) would fall within the category of "A relief granted upon demonstration of acceptable operation from an operating restriction that was imposed because acceptable operation was not yet demonstrated,"
and therefore would not constitute a "significant hazards consideration."
Similarly, NRC decisions not to require shut-downs despite nonconcurrence in state and local emergency plans should not constitute significant hazards considerations.
We believe these and other reasonably foreseeable NRC actions should be specifically addressed in the proposed Re'gulatory Guide, since the purpose of such a document is to enhance the pre-dictability of the regulatory process.
Respectfully submi ted, f(
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PRO'#00'ED RULE N
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Secretary of the Cc==ission U S nuclear Eegulatory Consission Washington, DC 20555 Att Docket;..; and Service Branch The following ec= cent concerning the March 28, 1980, Federal Register notice dealing with 10 CFR Part 2 and 50, "No Significant Hazards Consideration", is presented for your consideration.
Censumers Power Company endorses the NEC's effort to clarify the meaning of the phrase, "no significant hazards", and to this end, suggests a change to the proposed wording of 50.91(b)(2). As currently stated, this criterion could be interpreted very broadly, thereby leading to entangled objections similar to those HEC is attempting to avoid.
The following, more precise word-ing is suggested as a replacement for 50.91(b)(2):
" create the possibility of an accident which would have significant consequences, a significant probability of occurrence and which is of a type different frc= any evaluated previously, or..."
Please consider this con =ent in future actions concerning 10 CFR 3.
I Q-e David P Hoffman Nuclear Licensing Administrator DPH-66-80 Aano*Wped by card 5.!TA!fo.m L
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MISSISSIPPI POWER & LIGHT COMPANY Helping Build Mississippi EmmhiWands P. O. B 0 X 16 4 0, J A C K S O N, MISSISSIPPI 39205 PROQuCTION D E P A R T ed E N T May 28, 1980 i N'-
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JUN 419 P-U. S. Nuclear Regulatory Commission k;g,.
Washington, D. C. 20555 Off a #I W # 1 wn t w
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- Docketing and Service Branch Cv th \\
SUBJECT:
Grand Gulf Nuclear Station File 0260/L-8600.0/16684 Proposed Rule Change Regard-ing Determination of No Significant Hazards Consideration in Amending an operating license or construction permit-Federal Register AECM-80/106 We feel that the NRC is capable of making this determination and that no public interest is served by requiring the 30 day wait before issuing such anendments to operating licenses or to construction permits when it is determined that no significant hazards consideration exists.
We favor the proposed rule change to 10CFR2.105, 10CFR50.58 and 10CFR50.91 as it appears in Federal Register /Vol. 45, No.62/ Friday, March 28, 1980.
Yours truly, l
of
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/ L. F. Dale Nuclear Project Manager MRK/JDR;gks cc:
Mr. N. L. Stampley Mr. R. B. McGehee Mr. T. B. Conner Mr. Victor Stello, Jr., Director Division of Inspection & Enforcement U. S. Nuclear Regulatory Commission Washington, D. C.
20555
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M.' NLE NS-TMA-2263 (45 FR 2b4H) py Mr. Samuel J. Chilk, Secretary N N U.S. Nuclear Regulatory Comission DOCKETT.3 eg.
1717 H Street, N.W.
M U3'N Washington, D.C.
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,5 JUN.18 G80 > i ATTN: Docketing and Service Branch g g.,
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Subject:
No Significant Hazards Consideration gnms sy
Dear Mr. Chilk:
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- This is in response to the notice of the Comission's proposal to amend its regulations which appeared at 45 Fed. Reg. 20491.
The proposed amend-ments to 10CFR Parts 2 and 50 would specify criteria for determining whether a proposed amendment to an operating license or to a construction permit for a commercial or large production or utilization facility involves no signi-ficant hazards consideration and therefore require no prior notice. Westing-house believes that the specification of criteria is needed; however, the particular criteria as proposed are too broad and would require prior notice in many instances where such notice is unwarranted.
Pursuant to 10CFR50.59, the holder of an operating license may make changes in the factility or operating procedures and conduct tests or experiments without prior Comission approval unless the change test or experiment in-volves a change in a technical specification or an unreviewed safety question.
It is clear from experience that not all unreviewed safety questions involve significant hazards considerations which would require prior notice.
- Yet, the criteria for an unreviewed safety question specified in 10CFR50.59 are essentially the same as those proposed for determining whether or not a significant hazards consideration exists. The obvious result is that every Comission decision involving any matter subaitted to the Commission because it involves an unreviewed safety question would, under the proposed rules, require prior notice. This is unwarranted.
Prior notice should not be required for approval of changes involving matters which did not require prior notice in the first place.
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Mr. Samuel J. Chilk June 13,1980 NS-TMA-2263 Accordingly, Westinghouse recommends the following changes in the pro-posed criteria of paragraph 50.91:
50.91(b) should read:
... the Commission will consider whether the operation of the facility in accordance with the proposed amendment would be within acceptance criteria prescribed by the Commission's regulations which have been previously accepted or approved in connection with any construction permit or operating license proceeding."
50.91(c) should read:
If the Commission reaches a positive conclusion on the question set forth in (b) of this section, the proposed amendment shall be considered to involve no significant hazards consideration."
Westinghouse appreciates the opportunity to comment on these important matters and would be pleased to discuss our recommendations with the NRC Staff.
V ry truly yours,
/
p Nuclear Safety Department T. M. Anderson, Manager
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Docketing and Service Branch
Subject:
Proposed Amendment to 10 CFR Parts 2 and 50 -
No Significant Hazards Consideration 45 FR 20491
Dear Sir:
i The Atomic Industrial Forum's Committee on Reactor Licensing and Safety has reviewed the subject proposed amendment and has the following comments:
PARAGRAPH 50.91 The word "significant" as used in sections b(1) and b(3) of this paragraph can be interpreted very broadly.
The use of this word may therefore preclude consistency in NRC determinations that a proposed amendment to a construction permit or a license involves "no signifi-cant hazards consideration".
In addition, section b(2) which reads " create the possi-bility of an accident of a type ditferent from any evaluated previously" may, in our judgment, cause major problems of interpretation.
Any number of different types of accidents having conaequences which fall weil within regulation acceptance criteria may be postulated for virtually any construction permit or license amend-ment.
The postulation of such accidents should not pre-clude a determination by NRC that a proposed amendment to a construction permit or license involves "no signifi-cant hazards consideration".
For the above reasons, we suggest that paragraph 50.91 be re-worded as follows:
50.91 section (b) should read: "In making a determination that a proposed amendment to a license or construction permit involves no significant hazards consideration, t
the Commission will consider whether operation of the facility in accordance with the proposed amend-ment would be within applicabic acceptance criteria prescribed by the Commission's regulations which I
have been previously accepted or approved in connection l
with any Construction Permit or Operating License Proceeding."
G,Jeyty:>oStt
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june 18, 1980 50.91 section (c) should read: "If the Commission reaches a positive conclusion on the criterion set forth in item (b) of this section, the proposed amend-ment shall be considered to involve no signifi--
cant hazards consideration."
We.thank you for the opportunity to comment'on these proposed amendments and we would be pleased to answer any questions you may'have on the-above comments.
Sincerely, fh D. C. Gibbs, Chairman Committee on Reactor Licensing and Safety-l-
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t'S d Secretary of the Co==ission M,g U S Nuclear Regulatcry Commission
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Washington, DC 20555 Attention Docketing and Service Branch The following comments concerning the March 26, 1960, Federal Register Notice dea'ing vith 10 CFR Parts 2 and 50, "No Significant Hazards Consideration", are presented for your consideration.
1.
The first sentence of proposed paragraph 50.91(b) states that the subject criteria are intended to apply to both licenses and construction permits.
However, the same sentence states that the basic "significant hazards" determination depends only on "whether operation of the facility...vould" involve any cf the three enumerated criteria.
Consumers Power Company believes that the basic significant hazards determination should be based on construction and operation considerations. Therefore, Consumers Power Cc=pany suggests the following verding for 50.91(b):
"...the Commission vill consider whether construction or operation of the facility in accordance with the proposed amendment would (1)..."
2.
Item y under the examples of amendments that are considered likely to involve significant hazards consideration deals with increases in power levels which were "not previously publicly noticed".
Consumers Power Company believes that the fact the increase in power level was not publicly noticed is not relevant to a significant hazards finding.
Rather, th6 real basis is whether or not the technical arguments compel an affirmative determination. Therefore, Consumers Power Company suggests that the phrase "not previously publicly noticed" be replaced with the phrase "not previously reviewed by NRC".
These comments supplement those sent to you previously by Consumers Power Company by letter dated ::ay 27, 1930. Even though they are submitted beyond the due date, please consider them in future actions concerning 10 CFR Part 50.
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a David P Hoffman Nuclear Lf:ensing Administrator DPH-82-60 Acknowieoged / card.k 27 D.MO.
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'i LAW OFFICES Or DEBEVOISE & LIBERMAN 12 00 S CVC N YCC N'M ST8tCET N w wA S.4 s N G TO N 0-C 20036 w
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Attention:
Docketing and Sersice Branch s
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Comments on Proposed Rule Regarding No I
l Significant Hazards Consideration 45 Fed. Reg. 20491 (March 28, 1980) i
Dear Mr. Chilk:
I.
INTRODUCTION On March 28, 1980, the Nuclear Regulatory Commission
("NRC" or " Commission") published in the Federal Register (4 5 Fed. Reg. 20491-93) a proposed rule that would establish criteria for determining whether proposed amendments to power reactor construction permits or operating licenses " involve no significant hazards consideration" and consequently need not be noticed in the Federal Register prior to issuance pursuant to Section 189(a) of the Atomic Energy Act of 1954, as amended, 42 U.S.C. c2239(a).
The Commission requested that intereste'd persons v wish to file comments on the proposed rule do so by May 27, 1980.
As a holder of construction permits for two power l
reactors, Texas Utilities Generating Company ("TUGCO") is vitally interested in the outcome of this proceeding and hereby submits its comments on the proposed rule.
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-6 II.
BACKGROUND Section 189(a) of the Atomic Energy Act, 42 U.S.C.
52239 (a), was amended in 1962 1/ to provide that if the Com-mission determines that a proposed amendment to a power reactor construction permit or operating license " involves no signifi-cant hazards consideration" the requirement that applications for such amendments be noticed in the Federal Register at least 30 days prior to issuance thereof is waived.
This pro-
-vision was implemented by promulgation of 10 C.F.R.
SS50.58(b) and 50.91.
The NRC has not, however, set forth any formal guidance as to the meaning of the term "no significant hazards consideration."
In response to a petition for rulemaking filed on May 7, 1976, requesting that criteria be specified for determining when no significant hazards consideration is involved in a proposed amendment to an operating license (with the consequence that prior notice and opportunity for hearing may be omitted) the NRC now proposes to establish three criteria to clarify the meaning of "no significant hazards consideration."
The criteria would apply to both construction permit amendments and operating license amendments.
These proposed criteria provide that unless operation of the facility in accordance with the proposed amendment would:
(1) involve a significant increase in the probability or consequences of an accident previously evaluated, 1/
Section 2 of Public Law 87-615 (76 Stat. 409) (1962).
~
3-(2) create the possibility of an accident of a type different from any evaluated previously, or (3) involve a significant reduction in a margin of safety.
the proposed amendment shall be considered to involve no significant hazards consideration.
[?roposed 10 C.F.R.
S50.91 ( 4 5 Fed. Re g. 20493)]
TUGCO questions whether these criteria in the form proposed, are consistent with Section 189(a) and whether they will materially assist the Commission in determining whether there is a significant hazards consideration.
Accordingly, we set forth the following comments on the proposed rule.
III.
COMMENTS TUGCO believes that the Commission's present approach to determining whether a proposed amendment to a construction permit or operating license involves no significant hazards j
consideration, vi;.., use of informal guidance 2/ without strict criteria, has had the virtue of flexibility for case-l by-case reviews.
We would, however, support an amendment that would eliminate delays in the amendment approval process, improve predictability of pre-or post-notice decisions (by clarifying the applicable standards) and minimize unnecessary litication.
2/
See, " Petit _on for Rulemaking (PRM) 50-17, 'No Significant l
Hazardo Consideration,'" SECY-79-660 (December 13, 1979),
at p.
6 and Enclosure H.
l
. It appears, however, that the rule as proposed would not achieve those purposes.
Accordingly, we urge that it not be adopted as presently drafted.
Our principal objection is to proposed Criterion 2.
Criterion 2 was added by NRC to fill a gap it perceived in the approach of the petitioners.
It would permit a determina-tion that there is no significant hazards consideration only if operation of tne facility in accordance with the proposed amendment would not " create the possibility of an accident of a type dif ferent from any evaluated previously."
Proposed 10 C.F.R. 550.91(b) (2).
We believe that criterion 2 does not reflect the plain meaning 3/ of the no significant hazards consideration provision of Section 189 (a).
That section clearly embodies a concept of a class of amendments involving 'signi-ficant' hazards and a class of amendments not involving 'sig-nificant' hazards.
The iormer must be " pre-noticed" with an opportunity for hearing; the latter are " post-noticed".
Criterion 2 does not reflect in any way that distinction.
We note that each of the other two criteria, proposed 10 C.F.R.
$50. 91 (b) (1) and (3), requires a determination'of " significance".
Also, most of the examples of amendments likely to involve significant hazards consideration expressly incorporate that 3/
The plain meaning of the language of a statute should govern the interpretation of its intent unless conclusive evidence to the contrary exists.
See, Burns v. Alcala, 420 U.S.
- 575, 580-581 (1975); Banks v. Chicaco Grain Trimmers Ass'n., 390 U.S.
459, 465 (1968); Minor v. Mechanics Bank of Alexandria, 2C U.S.
(1 Pet. ) 46, 64 ('lT28).
e q
.. distinction, see 44 Fed. Reg. 20492.
Criterion 2, however, could be read as embodying the erroneous assumption that "the possibility of an accident of a type different from any evalu'ated previously" automatically presents a significant hazards con-sideration. 4/
Hazards must involve risk, that is, probability and consequences.
Clearly a low-probability accident that would have only minimal consequences cannot be said to involve a significant hazards consideration, whether or not the precise accident mechanism or sequence of events is of a type previously evaluated.
Nevertheless, the proposed rule would apparently deem such a possibility a significant hazards consideration.
To remedy this, we urge the Commission to revise Criterion 2 to read, as follows:
(2) create a substantial likelihood of a significant accident of a type dif-ferent from any evaluated previously, We note further that for many preposed amendments it would not seem difficult to hypothesize the possibility (no matter how remote) of an accident (regardless of how minor its consequences) that was not a type previously considered.
As drafted, therefore, Criterion 2 invites administrative delays associated with an unbounded search for any accident not previously~ considered.
Furthermore, Criterion 2 introduces 4/
We note that while this interpretation of the intent and consequences of Criterion 2 may not be intended and is not necessarily compelled by the language thereof, such inter-pretation is nonetheless plausible and we urge the Com-mission to avoid the possibility of creating, by adoption of Criterion 2 as proposed, the problems.that we have identified.
L
(
4 1
-s-l uncertainty and the potential for unnecessary litigation in l
I that a person seeking to challenge a decision not to afford notice prior to issuance of an amendment might attempt to do so simply by postulating any 'possible' accident of a type not previously considered that could be argued to involve the proposed amendment.
Also, the Staff might resort to frequent
" pre-noticing" of amendment requests in order to avoid criticisms based on failure to deal with "possible" accident scenarios.
Such a result would clearly frustrate the obvious intent of Congress that the provision be utilized by the Commission where expert engineering judgment concludes sig-nificant hazards are not implicated.
We should like to turn briefly to two secondary comments on the examples given in the Federal Register Notice (45 Fed.
Reg.'at 20492).
First, it is not clear to us that every
" renewal" of an operating license, regardless of the activities authorized under the renewal (e.g., po= session only) or the duration of the renewal, necessa f.ly ir volves significant hazards.
The example should, at a minimum, bc qualified as follows:
"[iv]
Renewal of an operating license authorizing operation at a significant fraction of full power for periods exceeding, in the aggregate, five years" 5/
Second, we would propose addi.,g to the list of amend-ments to construction permits and operating licenses which do not involve significant hazards consideration a category
-5/
A corresponding example of license renewal involving limited activities for a limited period might be included among these not likely to involve significant hazards.
t'~
f
. to embrace minor' changes in the ownership of facilities such as minor adjustments in percentage participation of owners already reflected in the construction permit or operating license, or the addition of new owners with minor interests (such that antitrust review is not required) involving only pro forma financial and related considerations as distinct from changes in the PSAR, FSAR or technical specifications.
Such could be accomplished by inserting a new example as follows:
"[ix]
A chanyt-to a construction permit or operating license to reflect a minor adjustment in ownership shares among co-owners already shown in the permit or license or to reflect one or more additional co-owners whose generating capacity does not exceed that set forth in S50. 3 3a (a) (3) of this Part."
Finally, TUGCO requests that the Commission be given an opportunity to reexamine this proposed rule and the comments submitted thereon, prior to issuance of the rule in final form.
The NRC Staff apparently contemplates publication of the rule in final form if, in its opinion, "no significant adverse comments.
have been received and no substantial changes in the text of the rule are indicated." 6/
We believe this rule is of sufficient importance to warrant Commission consideration of all comments received, regardless of the Staff's view as to their significance, prior to promulgation of the rule in final form.
6/
SECY-79-660, supra, at 7.
0.. 6 IV.
CONCLUSION TUGCO appreci ates the opportunity to provide the Com-mission with our comments on this proposed rule, and urges the NRC to modify the proposed rule as recommended in the foregoing comments.
Sincerely, is ve Nichol p S.i Reynolds CounseIfop Texas Utilities Gene atiqg Company Debevoise & Liberman 1200 Seventeenth Street, N.W.
Washington, D.C.
20036 (202) 857-9800 e
Mf/9 PDz Stenographic Transcriot Of O
IIEARINGS Before The SUBCOMMITTEE ON NUCLEAR REGULATION OF THE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS UNITED STATES SENATE l
O NUCLEAR POWERPLANT LICENSING DELAYS AND THE IMPACT OF THE SHOLLY v.NRC DECIgION WASHINGTON, D.C.
March 31, 1981 MILTON REPORTING,INC.
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C0NT ENTS Page 2
Statement of Joseph M.
Hend ri e,
- Chairman, U.S.
Nuclear Regulatory Commission, j
3 accompanied by Victor Gilinsky, Commissioner, Peter A. Bradford, Commissioner, and John F.
4 Ahearne, Commissioner S
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- 01 NUCLEAR POWERPLANT LICENSING DELAYS AND THE IMPACT OF THE 2
SHOLLY V.
NRC DECISION 3
- 02 4
- 03 TUESDAY, MARCH 31, 1981 5
- 04 Subcommittee on Nuclear Regulation of the Committee on 6
Environment and Public Works 7
- 05 Washington, D.
C.
8 The subcommittee met at 9 :15 a.m.
in room 4200, Dirksen 9
Senate Of fice Building, Honorable Alan K. Simpson (chairman)
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10 presiding.
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11 Present: Senators Simpson, Domenici, Symms, Stafford and z
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12 Hart.
3 13 Senator Simpson.
WeLL, I do apologize.
I think it was 14 just one of those days in Washington when everyone came to g-o!
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15 work, which is extraordinary because I left at 8:15.
I owe z
16 you an apology and convey that.
Z g-17 I think it appropriate to just make a comment, I am sure E
18 that our prayers wing out to our President and to Jim Brady 19 today and Agent McCarthy and Officer DeLahanty.
God bless 20 them and their families and lose them.
21 We meet today to continue hearings on these two important 22 issues regarding the regulatory process.
The first of these 23 is the projected delay in the NRC issuance of operating 24 License for plants that are expected to be completed within the f-k 25 next several years. The second of course is the impact of the
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Commission's staff and divert its attention from more pressing O
2 matters."
So there are serious concerns as welL and we look g
3 forward to discussing with the Commission the NRC Legislative 4
proposal on the SholLy Decision during the hearing this 5
morning, and we are fortunate indeed to have all of the 4
6 members of the NRC with us this morning.
I see that none of 7
my colleagues are here so without further ado, I be li eve 8
Chairman Hendrie, you have a statement on behalf of the 9
Commission.
W 10
- 08 U.S. NUCLEAR REGULATORY COMMISSI0t.
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- 09 STATEMENT OF JOSEPH M.
HENDRIE, CHAIRMAN, U.S.
NUCLEAR E
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12 REGULATORY COMMISSION 5
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- 10 ACCOMPANIED BY:
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- 11 VICTOR GILINSKY, COMMISSIONER O
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- 11 PETER A.
BRADFORD, COMMISSIONER i
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- 11 JOHN F.
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17 Mr. Hendrie.
Yes, Mr. Chairman, I do.
Thank you very E
18 much.
i 19 We are pleased to be here with you today to urge enactment 20 of two pieces of proposed Legislation.
The first of these is j
i 21 an amendment to Section 198(a) of the Atomic Energy Act to 22 overturn the principal adverse ruling in the recent' decision of 23 the United States Court of Appeals for the District of 24 Columbia Circuit in SholLy vs. NRC, which you have referred to.
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25 That proposal was submitted to you by letter of March 11th and
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I ask that the Letter and the supporting memorandum be in-2 cLuded in the record.
3 The second proposal wh1;ch was submitted by letter on 4
March 18th would authorize the Commission to issue an interim l
5 License for low power operation and testing in advance of any 6
requi red hearing.
Again I would ask that the letter be 7
included in the record.
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Genator Simpson.
Without objections it is so ordered.
9 (The information to be furnished folLows:)
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8 Mr. Hendrie.
With regard to the proposed legislation
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on Licensing amendments involving no significant hazards
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3 consideration, that is the Sholly Legislation, the situation 4
that requires it is that a three-judge panel in the D.
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5 Circuit has ruled, erroneously in our view, that "the Commission 0
must hold a prior hearing on demand from any interested person 7
before it can issue any License amendment, even if that amend-8 ment involves no significant hazards consideration."
Now that phrase went into the law in Section 189(a) back aw y
10 in 1962 when the Congress enacted some amendments to the z
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Atomic Energy Act.
Their specific purpose as we understood it DI 12 j$
was to allow the Commission to act on matters that had no
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significant hazards consideration, license for such actions, Zo
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Circuit presumes in Sholly to tell us that we F
d II are wrong.
I understand that a copy of the Court's original I
II decision as well as a copy of the recent statement of the four II judges of the Circuit Bench who disagreed with the majority on 20 a rehearing petition, that was supplied to you and I would 21 expect that would make a useful object for the record as weLL.
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22 The Solicitor General has filed a petition to the Supreme 23 Court to take the case up and we wi L L supply that to you too 24 N
if we haven't already.
j 25 While we certainly believe that our view of the Law is
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correct, whether or not the Supreme Court wilL take the case n
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and whether we will ultimately prevail is uncertain.
In any b
3 event that is a year or more away.
In the mean time the 4
SholLy Decision raises the potential for real havoc with the 5
regulatory process, and that is why we seek Legislation at this time.
6 7
The main problem with the Sholly Decision for us is that the ruling is that NRC must hold a hearing on request before 8
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9 it can act on an amendment involving no significant hazards p/
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10 consideration.
Now obviously if we do have an amendment that a
11 does involve a significant hazards consideration, then we z
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But we are dealing here with O A
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a rung of amendments that involve no safety questions in our zu OZ view f any significance.
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16 Now our practice is and our rules require that if the zo b
17 hearing is held it's an adjudicatory hea ri ng and we seem i
18 unable to get through those* things in much less than a year.
19 I suppose on a fairly low key amendment you might manage it 20 in 6 months if the people who wanted the hearing didn't Liti-gate too fiercely.
But if they do, why you are Looking at a 21 22 process that can run a year or more.
23 The practical effect of the Court's ruling is really to 24 make it questionable whether we can continue to regulate in a 25 sensible way the operating reactors that are out there.
Over
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the past four years we have issued something like 1600 r~
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2 amendments to operating License based on a determination that
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3 no significant hazards consideration was involved.
Over the 4
past few months we would have had 20 plants out of the 70 or 5
so with operating License down for indefinite periods of time 6
if this ruling had been operative.
7 And they would have been down for reasons which have 3
Little or n o t h.i ng to do with safety in our view.
The large 9
number of License amendment actions of this kind which the OW y
10 Commission must act upon each year, something like 400 a year, a
11 comes about because of the kind of detailed License that a
0 12 we prescribe for these plants.
A License like the one that the 3S
.e 13 Court looked at in the ShotLy case for instance is hundreds of (N
0-b Zo P5 14 pages long, highly detailed technical specifications.
Any aa Oz 15 changes anywhere in those hundreds of pages is considered a a
16 Li' cense mandment, and you just run a number of those every 2
0 l'7 year.
A refueling for instance, the composition of the core E
18 changes slightly with the fresh fuel that is added, shuffling 19 of the old fuel, the technical specifications may contain say 20 fer instance some flux ratio to limit operation to a safe 21 region, and the ratio may be.117 in the current License.
You 22 refuel, you do the same calculation and find in a perf ectly 23 straightforward manner the ratio should be.115 for the next 24 operating cycle.
That is a license amendment.
It is not a 25 safety consideration, there is no significant hazards
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consideration involved but under the Sholly Decisi
'ou would e
p
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have to notice a hearing and if anybody doesn't L te 3
plant, they may request a hearing and you can litig.
15 4
from.117 for a year or more, together with alL of the other 5
issues that a " cleaver" counset can bring into the case to 6
extend it.
7 It is a result, the Court decision is a result which upsets 20 years of standard practice and acceptance throughout g
the business in terms of interpretation of the Legislation, 9
Ow 10 and is going to leave us if it stands darn near unable to a
11 operate.
We just don't believe that the Congress intended E
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nuclear regulation and the operation of these power plants 12 EE 13 to be subject to unpredictable interruptions every time the f-Gg 1
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16 If that is the case, then we can't have this industry and Z
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18 this society you can't have any other industry either.
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19 such consequences are plainly possible under the Court's ruling.
l 20 Of course we don't know how many hearing requests we wilL get if the ruling stands but the Court's opinion clearly provides 21 an incentive for such rulings and for people with some reason 22 23 not to like their local power plant it is a tool to be 24 used to keep it shut down.
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25 Another option that we might take to try to get out of the
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situation is to take alL those License documents, detailed
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2 technical specifications and ray well, we now declare those
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3 not to be the license, the License is a piece of paper that just 4
says '!Smi t h Powe r Company you can operate this power plant," and 5
that is the only thing that is the real License.
WetL in that 6
case we wouldn't amend it very often I wilL agree and this 7
wouldn't be a problem.
8 On the other hand we would also lose enforceability
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9 of alL of those detailed technical specifications that we W
Q 10 now propose for a plant and that we think are useful in a
11 closely defining the acceptable limits of operation of the m
0 12 plant, and thus in our view encouraging safe operation.
Z 4na 13 Now what we would propose in the amendment here to deal 7s g"
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's-P" 14 with the.SholLy case is simply to amend Section 189 of the ea 08 gg 15 Atomic Energy Act to make it clear that the Commission may in
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17 hazards consideration and to do it without first holding a 5
18 hearing.
It would also clarify Section 189 in the sense that 19 it would make clear that the Act does not limit the NRC's 20 authority, or that section doesn't Ltr the NRC's authority 21 to take immediate action by amendment to the order to protect 22 the public health and safety and interest or tne common defense 23 ar.d security.
24 I would like to note on Co.nmissioner Gilinsky's behalf
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25 that he prefer the standard to be limited to public health and
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safety.
He believes the addition of public interest tends to
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3 health and safety more precisely reflects the standard NRC 4
actualLy employs.
But the Commission unanimously believes 5
that the Legislation is needed to overturn the adverse 6
effects of the SholLy Decision on our ability to regulate 7
nuclear energy.
t 8
So let me turn now to the second piece, because there 9
is another area in which we find we have to come to you for W
y 10 Legislative help with the problem we have.
The second piece a
O 11 of Legislation is that asking that we be given authority to aaDE og 12 issue interim operating License for fuel Loading and Low power ZAn
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This piece af legislation is a
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14 temporary cure for an extraordinary we hope temporary situa-o!
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15 tion, namely the Licensing bind that we have found ourselves a
16 in after Three Mile Island, the delays you have already referred Z
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d 17 to, Mr. Chairman.
I 18 As you know, we can't issue an operating License uncer 19 the Atomic Energy Act unless we have completed a hearing if 20 there has been a request for a hearing from any person whose 21 interest may be affected.
In the past we have managed to 22 keep the reviews coming along at a rate that a hearing could be 23 held if requested and the plant stilL would not be completed, 24 construction would not be completed, the hearing wouLd come to
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25 an end, an initial decision would issue about the same time
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34 I
changes. And as you may detect as the day goes on there are
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2 obviously more substantial differences in the views the 3
Commissioners take about these problems.
The discovery rules 4
probably are the ones which raise the most heat.
5 Senator Simpson.
Let us come back to that.
That wilL 6
be the most controvercial one, with regard to the 7
elimination of formal discovery by the NRC staff.
I wilL come 8
back to that but at this point let me ask Senator Hart if he 9
wishes to participate in the questioning, and certainly he aw g
10 has made some extraordinary contributions to this subcommittee.
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11 Senator Hart.
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12 Senator Hart.
Thank you, Mr. Chairman.
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13 Chairman Hendrie, let me see if I can understand what the gs g,
(s, ZE p5 14 Commission is proposing in terms of changing the way in which Ea OZ ai 15 it wiLL go about issue License, because it seems to me it wa K
16 has the potential to be fairly dramatic.
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17 You are suggesting two statutory amendments as I understand i
18 it, one which would permit you to issue License amendments 19 without a public hearing if the Commission determines the 20 amendment would involve no significant hazards consideration,g/
21 whatever that means.
And then would also grant you the 22 authority to take immediate action by amendment or order to 23 protect the pubLic, health safety and interest.
What I would 24 Like to pursue first of alL is what those two phrases mean to 25 you individually, perhaps each of you individually, and
35 I
whether or not this may be a fairly significant departure in gm I
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2 the history of nuclear Licensing in this country.
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Q,1 J
3 What does no significant hazards mean in practical terms?
4 Mr. Hendrie.
It means no significant questions of public 5
health and safety.
6 Senator Hart.
As determined by whom?
7 Mr. Hendrie.
The Commission.
8 Senator Hart.
Without pubLic participation?
9 Mr. Hendrie.
Without hearing.
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10 Senator Hart.
Which is to say without public a
11 participation.
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People can always write us Letters to peti-3.E 13 tion or whatever and present arguments that they may have one
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i4 way or another and submissions to the staff and to the au o!
15 Commission, but without hearing.
m 16 Senator Hart.
How will they know that you are considering 2
O 17 an amendment so that they can write these letters?
WilL there I
18 be public notice?
19 Mr. Hendrie.
We don't present notice on these things, 20 that is right.
21 Senator Hart.
What is oing to cause somebody to sit down 22 and write a letter?
23 Mr. Hendrie.
If it is a trivial change it seems to me
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36 I
health and safety.
2 Senator Hart.
That didn't answer my question.
My 3
question is if there is no pubLic notice what is going to I'
4 trigger someone to sit down and write you a letter?
How are 5
they going to know you are considering amending the License?
6 Mr. Hendrie.
I dare say they may not.
7 Senator Hart.
So they can't obstruct the process by 8
writing a letter because they won't know the process is 9
under way.
W Q
10 Mr. Hendrie.
They may or may not know.
There would not n[
11 be formal notice published in the Federal Register.
In most E
O 12 of these cases people who are interested in them simply watch 3
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13 the flow of documents on the docket file which is maintained k,
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14 in the local public document room as weLL as here in Washington m
au O[Z 15 at the NRC public document room, they wiLL see Letters coming a
16 in from the applicant asking for a license amendment, some Z
O 17 adjustment to the technical specifications perhaps on the I
18 occasion of fuel loading, something like that.
So that they 19 wiLL know from the appli cant's request to the Commission for i
20 amendment -- would you mind please moving out of the line?
21 I am trying to talk to the Senator and you are flashing that 22 Light squarely in my eyes.
23 Senator Simpson.
If you would please, remain out of the 24 Line.
25 Senator Hart.
Let me try to put a finer point on the i
37 I
question.
^
t 2
Mr. Hendrie.
The point is you watch the docket file and
(
3 you see an application come in from the applicant saying 4
Look, I need my technical specs and then folLowing and indeed 5
that is not a Federal Register notice but is is not precisely 6
operating indeedly secret either I suggest.
7 Senator Hart.
And there are not an awful Lot of 8
citizens who sit around reading those dockets either.
9 Senator Domenici.
You would be surprised.
w y
10 Senator Hart.
Let me explore the philosopny of the a
y G
r 11 Commission itself and telL me here if I am wrong, or g
a a!
au 12 Commission counsel can teLL me if I am wrong, it there a 3;4 13 precedent in the law for the Commission to make rather g}
threshold judgments about what is or is not a hazard?
Or has 14 ai g[
15 it not been the history of the Commission since its inception m
16 to have determinations of that sort made in public hearing za 1
F d
17 with notice with the right of any individual or group to parti-I 18 cipate to indicate whether it thinks there is in fact a hazard t
19 involved?.
In other words would this statutory amendment not l
20 give the Commission an authority the first time than it has l
21 ever had in the past?
22 Mr. Hendrie.
No, to the contrary.
The Commission has 23 always had tha't authority and in the case of License amendments 24 has had it specifi: ally since 1962 when the Congress made 25 it explicit in Section 189 of the Atomic Enerty Act. What i
TO
38 I
we are asking for is an amendment which makes clear-to alL
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/
2 what in fact the Law has been and the way we have operated for 3
20 years.
4 Senator Hart.
You are saying you already have this 5
authority and the amendment would be redundant.
6 Mr. Hendrie.
I am saying that at least there are three 7
judges on the Court of Appeals that need more explicit 8
Language.
9 Senator Hart.
Well now, Mr. Chairman, what the Court w
y 10 needs and does not need it seems to me is a determination for a
0 11 Congress and not for the Nuclear Regulatory Commission.
E O
12 Mr. Hendrie.
I guess that is why we proposed this Z An 13 Legislation instead of offering it for comment as a Commission g-~g g
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as F:
14 rule, sir.
mu o5
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15 Senator Hart.
How would you interpret the public interest m
16 as this anendment includes thac phrase?
Z OFy 17 Mr. Hendrie.
I think there are times when questions of I
18 reliability of the power supply, stability of an electrical 19 grid and so on over some considerations that ought to be 20 taken into account in the Commission's ability to order a 21 Licensee to shot down or do other things.
I think it would 22 be helpful to have that aspect there.
23 Senator Hart.
WelL it might be if one understood what it 24 meant.
/
25 Mr, Hendrie.
Let me remind you, Senator, of the tact I
39 1
can remember not all that long ago when I was down herc and mI i
2 you and the members of this Committee were suggesting to this 3
Commission the number of barrels of oil involved in the shut 4
down of five plants because we thought the seismic design 5
wasn't as good as it should be, a consideration we have 6
been pretty cavalier about.
7 Senator Hart.
Yo udidn' t hear it from me.
3 Mr. Hendrie.
I certainly heard it in this committee 9
room and in my view it is a Legitimate consideration for w
Q 10 instance, and would come under the public interest thing.
m 11 Senator Hart.
I want to hear from Commissioner Bradford E
O 12 or any other commissioners that want to comment here but I EE 13 sense, regardless of your reading of the history of the "N
g zo P"
14 Commission, a potential significant departure here in terms of aa OZ 15 the Commission's authority and apparently some members of the E
16 court believe so.
2 O
17 Commissioner Bradford.
E 18 Mr. Bradford.
In terms of giving some contention to the 19 phrase public health, safety and interest, I am most 20 comfortable referring back to the case that in fact gave rise 21 to this amendment, namely our effort to vent krypton at 22 Three Mile Island Last spring.
It is that case on which a 23 hearing was requested and we did not prevent the hearing 24 because we felt we had done a thorough assessment of the pro-O 25 cess already and there was a significent public interest 1
)
40 I
including a health interest, but not exclusively a health
' D) 2
(
interest in getting on with getting the krypton vented so we 3
could get on with other aspects of the cleanup, and also getting it vented at the particular time Last summer when for several 5
reasons it seemed best to do so.
0 In a situation like that I am not uncomfortable with this 7
public health, safety and interest test being applied.
For 8
my own part I had been much more Loathe to go on and to apply o
it in a situation where the consideration was purely in barrels wF 10 of oil, although I suppose it is not inconceivable that there a
O II might be some situation in whien the barrels of oil weighed g!
O 12 yf so heavily on the publi c health and saf ety so lightly one n
II might go down that path.
I4 g3 Senator Simpson.
Excuse me, Senator Hart.
Oj g[
15 Senator Domenici has to leave at 10:30 and has a very a
16 g
few questions.
May I briefly -- what is your schedule?
F Mr. Hart.
I can wait.
I would just like to complete this A
18 one question.
19 Senator Simpson.
Do you want to do that?
When do you 20 have to leave?
21 Senator Domenici.
I can stay until about 35 after.
I 22 i
only have five minutes, Senator.
4 23 Senator Hart. I only have one fotlow-up here.
/N Senator Simpson.
Please go ahead.
25 Senator Hart.
Commissioner Bradford, do you believe that
-f 4
_. _ _,. ~. -. _
_ _ _., ~ _ _ - -
~
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41 I
adding the phrase interest does not therefore statutority
,r%
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expand the Commission's authority beyond public health and
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3 safety and economic considerations?
4 Mr. Bradford. It would certainly make more explicit our 5
authority to weigh economic considerations together with public 6
health and safety.
My own concurrence in this is very 7
definitely the title public health safety and interest, so we 8
are not free to go off and make up some definition of the 9
public interest that is independent of the public health w
y 10 and safety and apply that.
If the phrase were public health a
0 11 safety or interest that would not be acceptable to me.
I E
O 12 consider the three, public health safety and interest to be z4 13 in effect a cumulative test and not one in which the commission
~'
E3 14 can hand a decision on any one of those three.
ma os gg 15 Senator hart. Mr. Chairman, I want to ask the Committee z
16 Staff Counsel or whomever to advise us on the precedent for Z
O 17 the NRC in effect to become an economic regulatory commission.
I 18 I think the potential is there.
19 Senator Simpson.
You certainly have that opportunity.
20 Senator Domenici, appreciate your participation.
21 Senator Domenici.
I just have a few questions.
22 As I understand it one of the recommendations that you 23 have made, Mr. Chairman and members of the Commission, has 24 to do with clarifying the SholLy Decision.
As I understand it 25 for 20 years, practically 20 years you have been acting on the
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42 I
kinds of decisions --
p (v) 2 Mr. Hendrie.
Precisely in the way we would propose 3
to act if our Legislative propesal were accepted and passed.
4 Senator Domenici.
And as a matter of fact the decision 5
that was appealed from was a unanimous decision of the 6
Commission, wasn't it?
7 Mr. Hendrie.
Our agreement to bring this legislative 8
proposal --
9 Senat r Domenici.
I don't mean that.
The decision that OW y
10 was taken up in SholLy was not anything you alL disagreed m
O 11 upon.
a E
O.e Og 12 Mr. Hendrie.
As I recall it that is correct.
EA a
13 Senator Domenici.
So are you, when you ask for this
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change have you asked for any authority that you didn't have 14 Og
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15 before?
m 16 Mr. Hendrie.
I don't believe we have.
2 OF d
17 Senator Domenici.
And the only reason you don't have it I
18 now is beciuse there is a court decision which is on appeal 19 to the U.
S.
Supreme Court that for the first time challenged 20 that a u t h'o ri t y that you have been using, is that correct?
21 Mr. Hendrie.
Yes, sir, that is exactly correct.
22 Senator Domenici.
And how long might it take in the 23 typical appeals to the U.'S.
Supreme Court for a decision to be 24 forthcoming?
t
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25 Mr. Hendrie.
My guess is a year or more but let me turn
51 I
there is a national emergency and we need those plants.
I
,-m
(
2 would rather, even though it might take Congress time to 3
act, I would rather that situation come to Congress and say 4
here is a national emergency, we need this authority.
I 5
Mr. Gilinsky.
May I answer, Senator? I agree with 6
those remarks.
I think if we improve a general scheme for l
7 interim operating License we may find ourselves dealing with a 8
great deal many more plants simply because the whole system 9
wi L L elide. Of course if it were done the way Chairman Hendrie I
"y 10 suggested, actualLy naming plants, that would cure that.
m E
11 I have some other remarks that pertain to your earlier a
0 12 question. I wonder if I could tske a moment to address them.
EE E
13 Senator Hart.
Please.
x N_-
PU 14 Mr. Gilinsky.
You were asking about an amendment to aa 1
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15 deal with the SholLy Decision and I think it doesn't extent a
16 the Commission's authority except in possibly a smalL way, which 2
0 l'7 is why I prefer to Leave off the interest in the finding part I
18 of it.
Generally it brings us back, or it leaves us doing 19 what we are doing now.
I think that is preferable to leaving r -
20 the decision stand.
However there are some problems with the 21 way things are done now.
22 You asked about the no significant hazards finding.
23 It doesn't exactly mean the way it is represented, that there 24 isn't an important safety question.
It tends to be interpreted
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25 that whatever is being done does not lower the safety of the i
L.
I plants, wh i c hi sn ' t quite the same thing.
I think we have got 2
to go back and deal with that definition so it really says 3
there is not an important safety question.
4 There is also I think a problem with who makes the 1
5 finding.
In practice it is made by the staff, not by the 6
Commission.
And the staff becomes a party to the hearing should 7
there be a hearing, and I am not sure I know how to cure that l
I 8
but it is something that has troubled me.
Senator Hart.
WeLL, I guess what I woul.d like each of Ow y
10 you to give me as specifically as you can is your definition of ao II g
what an interest means because you are proposing changing the OE 12 Law.
Future courts if challenged wiLL want to know what yg I3 Q
Zl f
Congress intended to change the Law by Language of this sort.
o h$
14' Frankly I don't know if we were to adopt this amendment 0$
$I 15 today what interest means.
What we are giving to a e
16 Z
regulatory commission is a big blank check.
I think we O
d I7 have a responsibility to define for future courts if challenged I
I8 what we meant when we gave that blank check, or at least put II some limits on the check, and I don't have the foggiest idea.
20 I gather each of you has in your minds what the phrase "an 21 interest" means but if I were a judge sitting in a court 22 Looking at the congressional record, if this Committee were to 23 pass that amendment today and take it to the floor and get it 24 passed so you could get on with this, I would be mystified as 25 to what Congress intended by giving you that authority.
So.
l
{
53 1
I hope you wiLL give us your ideas, each of you, what an 2
interest means, as specificalLy as you can.
3 Mr. Ahearne.
For myself, I would agree entirely with 4
what Commissioner Bradf ord ea rli er desc ribed, with the stress 5
on the end.
For an expansion of it I would like to submit 6
if I could a short Letter which was submitted by 3 out of the 7
5 commissioners last April to the Chairman of the Appropriations 8
Senate Committee, which at that time was proposing a modifica-9 tion of policy for the Commission.
As it said, this was not Ow y
10 intended to in their view expand the authority but confirm l
a 11 authority NRC now has to make prudent and sensible safety and m
O 12 national security j udgments based upon safety or security as i
2 13 a paramount consideration, but also giving some consideration g
2O I
PU 14 to appropriate public interest factors.
In the definition aa Oz$!
15 it expanded that to indicate consideration to economic a
16 impacts and to meeting energy needs.
If I could submit that.
2 O
17 (The document folLows:)
E 18 19 20 21 22 23 24 97
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54 I
Senator Hart.
That would be very helpful.
Any others 2
want to take a crack at this?
i 3
Mr. Gilinsky.
I had suggested leaving out 4
Mr. Hendrie.
You and I are on John's letter, the letter 5
John submitted, so we get a little credit for that.
6 I am sorry, go ahead.
l 7
Mr. Gilinsky.
It isn't I don't think the Commission ought j
8 to be able to take economic factors into account but because 9
this proposed amendment is drafted to deab with a very specific OW Q
10 problem, I thought in this case we would limit ourselves to ao 11 the narrow question in the SholLy Decision and not use this as a
E.
Oe ag 12 an investigation for modifying the License.
Z~An 13 d$
Senator Simpson.
But I wo.Ldn't quarrel it does Zo
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14 modify the basic standards.
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15 Mr. Gilinsky.
Which is why I would leave off the end a
16 interest.
2 OF d
17 Senator Hart.
Commissioner Bradford.
I 18 Mr. Bradford.
I would intend the type of situatior I could 19 imagine using it is like the actual situation that occurred in 20 TMI Last spring, in which we were reluctant to say that the 21 public health and safety in and of themselves required the 22 immediate venting of the krypton, but in fact it did seem
.o us i
23 to be a good idea. Also there was no significant hazards 24 involved and one could use the first sentence of this amendment 25 alone to cure that problem.
But it seemed that the public
58 I
we have with other maj or sources of power, the better nuclear 2
power looks to this Senator.
And I am glad the Commission is #
4 3
here this morning.
I think it is important to get.on with 4
the business of reviewing and issuing Li cense where that can
(
5 properly be done.
6 Thank you.
7 Senator Simpson.
Thank you very much, Mr. Chairman.
8 I appreciate those comments from you.
You have an extra-9 ordinary background in environmental Legislation and a deep w
y 10 interest in it indeed.
m E
11 I have some questions with regard to the ShotLy I
z O
12 Decision.
In reaching that determination that a particular Z~Ana 13 License amendment involves "no signi ficant hazards considera-g Zo i
P" 14 tion," what criteria has the Co,mmission employed in the past aw Gf g[
IS and how do these criteria differ from those that the Commission a
16 had published in proposed f orm and was in the process of z
0 h
'7 completing at the time of the Sholly Decision?
I 18 Mr. Hendrie.
Could I ask the General Counsel tu talk 19 about this definition matters, Mr. Chairman?
20 Senator Simpson.
Please.
21 Mr. Hendrie.
Mr. Bickwit.
22 Mr. Bickwit.
The proposed rule is helpful because it 23 is in effect a codification of the practice that staff l
24 and the Commission have been using in reaching decisions on N-25 these issues.
What the proposed rule would say is that the I
t l
59 1
Commission wilL consider in making a no significant hazards l
2 consideration finding whether the proposed amendment would one, 3
involve a sign'i'; ant increase in the probability or conse-4 quences of an accident previously evaluated; two, create the 5
possibility of an' accident of a type different from any 6
evaluated previously; or three, involve a s i g ni.f i c a n t 7
reduction in a margin of safety.
And that has been basically 8
the criteria, those have been basically the criteria the 9
Commission has been using.
w e
Q 10 Senator Simpson.
And those would remain the principal m
E 11 criteria?
eOE u;
12 Mr. Bickwit.
This is a proposed ruleing for which the Z A-
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2 5 13 comment period has closed.
The Commission wiLL now consider
\\m-14 those comments and decide whether this is the practice that g}
Oj
@l 15 it wilL continue to adhere to.
r 16 Senator Simpson. To what extent if any wilL the 2
OF d
17 SholLy Decision impair the NRC's supervision of operating I
18 nuclear power plants?
19 Mr. Hendrie.
WelL, if the decision were to stand, 20 Mr. Chairman, then we would very rapidly begin to have very 21 grave difficulties that undoubtedly are going to be in 22 hearing on some fraction of those 400-odd amendments a year 23 that have no significant hazards consideration associated with 24 them.
We very rapidly are going to saturate in terms of the Ot 25 ability of the staff engineers and staff lawyers to deal with
~
---7.-
62 s.
I a number of specific divisions necause once they move out of 2
the formal documents into the informal documents it becomes 3
very much harder to use them as a basis for enforcement action.
4 My only difference with what the Commission said is I don't 5
necessarily share the view of a community out there that is 6
prepared to pounce in on aLL 70 plants.
For me it is enough 7
for the possibility of one or two plants to be held up in
~
8 hearings that don't involve signi f cant hazards, but I wouldn't 9
urge you Legislate on the basis that the industry would Ow y
10 somehow be shut down or even 10 or 20 plants being shut down m
{
11 if theSholLy Decision became final.
I would like to avoid the E
O!
12 possibility of even one plant being delayed.
3S
.2 13 Senator Simpson.
Commissioner Gilinsky.
Oa Zo p5 14 Mr. Gilinsky.
I think it is worth saying that this sa 02 my 15 analysis of what may happen may in fact be correct is based on wa z
16 a notion that the Law requires that a hearing on an aneednet za no matter how minor has to be a fully adjudicatory hearing.
17 5
11g That is what our lawyers seem to be telling us.
I am not 19 myself sure that is right.
20 Senator Simpson.
We have alL had those suspicions.
21 Mr. Gilinsky.
Even then I would say it is an unreasonable 22 burden that there should have to be hearings on aatters which 23 are truly not important.
24 Senator Simpson.
One of the interesting things to me in 25 reviewing the SholLy Decision was you developed that, that
)
. - - ~..
63
'.r.
I realLy there was ever any advance notice required under A()
previous considerations and now we are going to come up with 2
3 what might be termed blanket request for hearings, and also 4
this nebulous phrase " expression of interest".
The Court 5
rules in that case that there was a hearing required before a License amendment involving,'and then this key phrase "no 6
7 singificant hazards consideration" becomes effective if there y 8
is a request for a hearing or " expression of interest which is 9
sufficient to constitute a request for a hearing."
What Ow y
10 sort of expression of interest would be sufficient in your a
O II mind to constitute a request for a hearing?
E E e De ag 12 Mr. Hendrie..WeLL, it is always hard to know when the E$a 13
(]
d ;
judges write an opinion, even when the Commission writes an
\\s_/
32 I4 y}
opinion if it doesn't speak to a partiutar point you can o5 g[
15 speculate on what they had in mind.
It sounds to me however E
I6 z
as though the court leaves open, if it doesn't outright declare, OV d
I7 that there is a very broad class of expressions of interest I
18 which would have to be regarded by the Commission as either 19 requests for hearings in advance sort of just generally in 20 advance of the issue, or at least put us in a position where 21 we feel it necessary to go and query those specific parties 22 each time one of these no significant hazards amendments p'
23 came up.
24 It is possible from a read ng of the decision to infer
'\\ /
25 that a party say at the initial Licensing of a plant could
64 o
I sent a letter to the NRC saying I hearby request a hearing on O
5 2
alL icense amendments that may come up in the future on this V
3 plant as Long as it operates or I am around.
Then that is on 4
file and the kind of Language the court has used here, it is 5
conceivable that could be regarded as a formal request for a 6
hearing, which would automatically trigger a hearing every 7
time one of these amendments came up.
If there were the case, 8
I don't know whether I am stretching here too much or not.
9 Let me Look over my shoulder and see what General Counsel has W.
y 10 to say.
R E
11 Mr. Bickwit.
I think the hypothetical the Chairman m
0 12 posed is a little unlikely.
ZAna 13 Mr. Hendrie.
Unlikely or not in accordance with the
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14 decision?
ma o!
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15 Mr. Bickwit.
I think probabLy it is unlikely that it is a
16 in accordance with the decision.
z 0
17 Senator Simpson.
Mr. Bickwit, I have heard the Chairman E
18 recall against the brethren of the bar and I wilL Leave it at 19 that, and then see him turn and call upon you for the answer to 20 the question.
A terrible anomaly.
21 The court decision too stated that this phrase "any 22 significant changes in the operation of a nuclear facility in f
23 itself consummates a License amendment."
What in your view 24 constitutes such a "significant change in the operation of a 25 i.uclear facility"?
MUO PDR
~
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STATEMENT OF J.C.
TURNER
'Y THE PROPOSED AMENDMENT TO SECTION 189 0F THE ATOMIC ENERGY ACT OF 1954 BEFORE THE SUBCOMMITTEE ON NUCLEAR REGULATION.
MARCH 25, 1981
['"')
Mr. Chairman and members of the Committee on
(
/
Nuclear Regulation, my name is J.C.
Turner, General President for the International Union of Operating
./'~'N Engineers.
I am appearing here today on behalf of the
)
\\~ /
officers and members of the Operating Engineers Union.
In addition, the views I will express at this hearing are endorsed by several other labor organizations:
The International Brotherhood of Electrical Workers, AFL-CIO The International Union of Electrical, Radio and Machine Workers, AFL-CIO
\\
The Laborers' International Union of North
\\,_,/
America, AFL-CIO The Building and Construction Trades Depart-ment, AFL-CIO reprecenting 4 million construction workers On behalf of those organizations, I am here tocay to speak in favor of the proposed amendment to Section 189 of the Atomic Energy Act of 1954.
The
,~s purpose of this amendment reflects what we believe
[
'x
/
to be the original intent of Congress that nuclear license amendments may be made effective without prior l
hearing.
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Let me make it clear at the outset that safety for workers and the public is our first consideration
-~s in the development of nuclear energy.
None of our
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s
s
- C
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organizations would, under any circumstances, accept or w
support a measure that would create any unnecessary i
dangers to our members, to the public living near the O
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site of a nuclear plant or to the environment.
.s We do not, however, find that the legislation under consideration here will create such dangers.
The Sholly decision imposes an intolerable burden on the nuclear industry without creating any additional safety factors.
Under the terms of this decision, any intervenor can, by questioning a nuclear licensee's proposed amendment, demand prior hearings before per-mission is granted to implement the amendment.
- Thus, for little more than the price of an 18-cent stamp multi-billion dollar construction jobs can be brought to a complete halt with severe consequences to workers and to the consumers of electrical power.
No engineering project is so thoroughly reviewed, from a safety standpoint, as a nuclear generating faci-lity.
The applicant must give detailed accounts of 1
engineering safety responses to both high and low proba-(
bility accident scenarios.
These respones are reviewed by committees and subcommittees of the Nuclear Regulatory Commission before which the licensed applicant must defend his design repeatedly.
Before a construction license is granted, the Nuclear Regulatory Commission will have assessed the reaction of the plant to any conceivable circumstance.
!,.y At the end of that process, the construction permit applies to a facility that has been examined down to the last valve.
The construction permit, when issued, applies specifically to the engineering design which was so examined.
This is the key to evaluating the Sholly case.
Given such detailed examination, an amendment to a nuclear plant license may involve no more than a change in valves, or the pipe plan, or a rearrangement of wiring inside the plant.
Yet, under the Sholly decision, each of these insigni?icant change orders could become the occasion for stopping work on the facility for periods ranging from six to nine months while public hearing and comment goes forward under the rules of the Administrative Pro-cedures Act.
j Our support for the proposed amendment, which will r
overturn the Sholly decision, is based on certain prime considerations.
The first is our view that U.S.
energy policy demands the maximum production of all forts of domestic energy -- nuclear, oil, coal, gas, synthetic fuels and renewable sources.
If we are to achieve energy independence, no one fuel source is sufficient.
We need everything we can get.
Nuclear power is clearly one major source of energy immediately available for develop-ment.
It is clean, plentiful, relatively inexpensive and, in most regards, less damaging to the environment than I
1 g alternative sources involving fossil fuels.
- Clearly, it is in the public interest to assure the maximum safety precautions are taken by the nuclear power indus-I try.
It is also in the public interest that once the parameters of safety have been established, work go forward at the most rapid possible rate.
The Sholly decision is an open invitation to violate this simple principle of the public interest.
The first obvious consequence of the Sholly decision is that it would greatly inflate the costs of nuclear p. ant construction.
These are multi-billion dollar projects.
On such projects, the irretrievable loss from construction delays amounts to hundreds of
(
thousands and even millions of dollars a day.
Repeated applications of the Sholly decision to routine change orders in the construction of the plant would impose severe cost on the ultimate consumer of electrical power without, in any way, guaranteeing additional safety.
As labor unions, we are, in addition, committed to protecting the jobs of our members.
Most nuclear plants require the assembly of large numbers of construc-tion workers in excess of what the local labor market can provide.
When t us work which attracted these men is interrupted for long period of time, the assembled labor force scatters very quickly.
Thus at the end of the public hearing period, the contractor would be obliged to recruit an entirely new labor force and engage in the s
training and security processes required by the NRC. This L
5
- ) not only interferes with the earning power of our members, but, again, imposes a large additional cost which will have to be met by the customers of the power company.
f I have repeatedly stated that the application of N
the Sholly decision adds no increment to either the workers or public safety in the construction of a nuclear plant.
In addition to that, I should point out that passage of this amendment will, in no way, reduce the public's ability to participate in safety discussions regarding the nuclear power facility.
The NRC, even under the terms of this amer.dment, will still be re-quired to hold public hearings on demand even with respect to amendments to a nuclear plant construction license, However, if this amendment is passed, work will prnreed under the terms of the amendment where the NRC has found that "no significant hazard" is raised by the license amendment.
If this were any other situation than the construc-tion of a nuclear power plant, the Sholly deci,sion would be merely a curiosity and not the matter of serious concern that it is.
Since it does apply to nuclear power construction, we may be sure it will be used to provide unending interruptions to construction projects.
Opposition to nuclear power, we have observed, ri,ses above any consideration of procedural or legislative safeguards or engineering assurances of safety.
The i
j I
5
. 1 Sholly decision, if allowed to stand, could well spell the doom of nuclear power development in the United States.
Certainly, we believe it would be used for this purpose in spite of the fact that no responsible commentator on our future energy needs has been able to draw a scenario that does not include extensive a
use of nuclear energy.
l In closing, gentlemen, I wish to reiterate that our unions would in no way tolerate any denigration of worker and public safety by the nuclear power industry.
If the Sholly decision in any way contributed a safety factor, I feel we would be adamant in our support for its implementation.
We find, upon careful examination,
(
however, that the rules stated in the Sholly case add only confusion, costs and the interruption of vitally necessary work without adding one sing 2e increment to safety in the nuclear power industry.
Thank you.
fA{lQ PDI
~
$f STATEMENT OF ROBERT tiAGER l
TO I!!E SENATE SUBCO D!ITTEE OS NUCLEAR REGULATION OF THE COS"11TTEC 05 ENVin05:!ENT AND PUDLIC WORKS l1 ARC!! 25, 1981 1
In June 1980 the NRC authorized the first step in the cleanup of the i
crippled Three !!ile Island Unit 2 nucicar reactor by allowing its owner, i
Metropolitan Edison, to simply open the vents of the containment building i
I and release the accident generated airborne radioactive materials into the tambient air.
At least four alternatives to this intentional release of radiation on the public had been considered by the NRC.
However these alternatives l
which would have isolated these dangerous wastes from the environment were rejected on the principal ground that delay in the cleanup would cause psychological stress to the inhabitants neaby TMI-2.
Implementation of he most practical of the alternatives was estimated by the SRC to take as much as a year.
The NRC later ruled in a related TMI proceeding that the NRC had no jurisdiction to consider issues of psychological stress.
In making its dec is f o:1 on which alternative to approve for decontaminating the THI-2 atmosphere the NRC never undertook to apply the governing rule that emissions of radiation muct be kept As Low As Reasonably Achievable (ALARA).
Shotly after the NRC's decision was announced, Steve Sholly and Don Hossler, wo citizens of the TMI area, requested that the NRC grant a 30 days' notice per l od imfore Jr.plementinr. the derinion to vent rad i.it i on irom T!I-2.
They cluined that the decision involved significant hazards considerations and L t..n ci oc e otice was required by statute.
The NRC refused to provide the requested 30 '
days' notice before releasing the radianactive materials from TMI-2.
huhsequently l
a group representing citizens living within about five miles of TMI-2, People gainst Nuclear Energy, requested a public hearing on the venting decision.
When the requested he. rin;; was denie.1 b. the ::l c LLi-
- ruup filed a suit in
- nr s
i 2
l United States Court of Appeals requesting that the NRC be ordered to hold hearings before implementing its decision to vent radioactive materials from TMI-2.
The NRC had divided its decision to vent into two seperate orders designed l
to avoid public participation in the decision to vcat radiation from TMI-2.
The first order permitted venting within the radiation rdcase limits fixed i
in the operating license and the second permitted venting at rates of release exceeding even those for an operating reactor.
PANE alleged that both of 1
t there orders were license amendments, although only the second was acknowledged j
as such by the NRC. Therefore under 5 189(a) of the Atomic Energy Act a prior hearing was required as a matter of law on the license amendment cffected by the orders.
Before the venting occurred the Department of Justice i
filed a formal document in the Court of Appeals agreeing that a hearing was legally required on the acknowledged license amendment even though the NRC had made a finding that this amendment involved no significant hazards consider-ation.
The Court of Appeals had directly so ruled seven years before in Brooks v Atomic Energy Commission, 499 F.2d 1069 (D.C. Cir. 1973); the language of 5 189 was clear and unambiguous; and the Justice Department's own detailed investigation into the legislative history of 5 189 would support no other conclusion.
Accordingly the Department gave formal notice that the NRC's
/
refusal to grant a hearing would be a violation of law.
Notwithstanding this deb authoritative interpretation of its obligations, the NRC lived up to its reinst at ion an one of t he inost arrorant and aut ocrat ic ar, enc m.
In the f e<iera l bureaucracy by blatantly violating its governing statute and venting radiation upon unwilling citizens without a lawfully required prior hearing.
After Lhe fact the Court of Appeals entered a declaratory judgment that the NRC's ictJon had been unlawful.
The NRC has consistently attempted to cover-up its blatant violation of 3ettled law by contending that the Court of A; peals has imposed a new requirement L
w
3 for-public hearings not previously contemplated by existing law.
To lend note of dramatic urgency to this transparently falso cover-up before it Ga-i is exposed in light of experience, the NRC has cade wholly unsupported l
l-assertions th'at the Court of Appeals decision in PANE's case will Icad to l
i I
~
an intolerable drain on its resources and to shutdowns of as many as 20
. reactors.
The NRC,while highly critical of the Court of Appeals. studiously avoids any reference to the facts of the case decided by the Court of Appeals. The NRC chooses to discuss " prospects" of hypothetical cases which have not and never will occur rather than focta any attention on its own blatantly illegal l
actions on an issue of pressing concern to the injured and increasingly
(
i alienated citizens of Three Mile Island.
A q.uick look at the facts will l
reveal the NRC's assertions to be a sham and its proposed legislation as an attempt by an agency already " virtually unique" in its freedom from control i
to aggrandize even more power at the expense of due process of law and democracy.
Question 1 : k'ha t is the likely impact of the Sholly decision in terms of recources and time needed to process reactor license amendments, the potential for the shutdown of operating reactor-until any required hearings on license amendments have been-completed, and the adequacy of NRC health and safety reviews?
The "Sholly" decision will have no impact whatsoever on the NRC's legal obligations. The Court of Appeals' decision was a declaratory judgment that the l
f NRC's actions were illegal.
liut since the action of releasing radiation is I
irrevocable the NRC is not required by the Court's deelsion to take any refuedial action whatsoever.
The "Sholly" decision doesnot set any new precedent or make any i
i i
new law. 'the statute itself has been clear and unambiguous for many years. The sane Court in Brooks made the very same ruling of law seven years ago. Any effects i
that the "Sholly" case might have as precedent would already have been experienced I.
l 4
1 over the past seven years.
But the NRC bas failed to provide any examples of the claimed ill-ef f ects of 5 189 as interpreted in Isrooks.
The NRC's claims that the "Sholly" decision will require a change ir NRC administrative practices rest on the totally false assumptions that eitner a) the Court's decision actually states law that did not already clearly l M exist under 5 189 and the Court's previous decision in Iirooks or b) that the NRC had a practice of violating the law stated in 11 rooks which it will now l
discontinue in light of the "Sholly" decision. The first assumption is revecleo as simply untenable by the Department of Justice's statement of the prevailing law l
before the Court of Appeals' ruling.
If the Court of Appeals made new law in the i
i "Sholly" decision then why was the Justice Department unable to support the NRC's contentions even before the "Sholly" dccidon was rendered? As for the NRC's practice before the "Sholly" decision, the agency has entirely failed to support i-l its assertions concerning its prior practices with a single example. Although i
i j
repeatedly challenged in the course of litigation to show that the Commission l
had on even one previous occasion denied a requested hearing on the grounds i
that "no significant hazards consideration" was involved, it was unable to do so.
While the public, like the Justice Department, had every reason to believe i
i before the "Sholly" decision that an affected person was entitled to a hearing l
l on a license amendment notwithstanding a "no significant hazards consideration" i
j
- finding, the NRC had never before had occasion to deny a requested hearing on i
i this ground. The "Shally" decision will have no effect on the number of hearings i
l requested on license amendments, the number of such hearings granted, or the i
h l
t ut siI t hue and renunrre.,. pent on unch he:erIny..
A Ior iIn-Nit C ' '. Iaac1inI i
i suggestion that it will force the shutdown of operating reactors for hearinc,.
on issues that involve truly no significant hazards considert_ tion, the easy anwer I
which would save this Subcommittee's valuable time in to let the NRC come to i
Congress after such events actually occur.
l Even if the "Sholly" decision was novel and did represent a d oarture fron.
i l
established law and precedent, it would not have the grave impact wildly claimed 1
h
_ =
i by the NRC.
Compared to the huge amount of subsidies which the government Im I
given nuclear power the resources. devoted to assuring public participation and due process are miniscule.
Public participation provides independent scientific and other information to-the decision makers by way of private not public resources.
Studies have shown that regulation has not been the most significant cause of delay. Where time is important, surely the NRC is capable of holding 'an expedited hearing.
In the NRC's example of I
changing fuel, such a change can surely be anticipated and approved sufficiently in advance that any brief hearin; would not interfere in the operation of a 1
plant.
Moreover in the imagined case where a hearing is requested on an 1
issue that truly involves trivial matters of no health and safety consequence, the NRC has ample means, other than expedition and control of its own procedures.
l to deny a hearing or prevent a hearing from interfering with plant operation.
~
The NRC applies a rigorous standing requirerent to any party desiring to participate einitsproceedings.Suchapartymustshowaninterestthat may be injured j
in fact as a result o f the proceeding and that the interest is protected by I
the Atomic Energy Act.
See Washington Public Power Supply System, 5 NRC 650 (1977);
k Portland General Electric Co., 4 NRC 610,613-14 (1976). Mere economic concerns for example are not sufficient to obtain standing before the NRC. In re TVA 5 NRC 1418,1421 (1977). See also In re Consumers Power Co., 10 NRC 108 (1979);
10 CFR $ 2.714(2). The NRC's rigorous standing requirements have been f requently used to deny the public participation in NRC proceedings.
They are more than Gadequateforweedingout those imagined hearing requests on issues that do not lenitIm.itely alfeet tin puhtle.
GQuestion2:
Of the total number of reactor license amendments considered by the NRC in a given year how many are classified as involving no significant hazards econsideration7Ofthose,howmanytypicallyinvolvehearingrequestsbyintere persons 7 What types of reactor license amendments are included within the no signifi.r.nt hazards consideration classification? To what extent if at all do
6 t
these types of amendments involve signif_ipant public health and safet u u,estim.F i
Before Congress undertakes to deliberate whether or not citizens all over the country will be denied due prc ress of law and rights to democ ratic j
participation in decisions that will have irremediable effect on nublic hea lth safety
{
s concerns, the NRC should be required to submit detailed statistical substantia. ion i
of its wild claims about the impact of license amendment hearings on its v
j regulatory procedures.
In a letter to the Subcommittee dated February 20,1981 i
the writer has listed the data that should be furnished by the NRC to Congress so that its assertions may be measured against reality.
From the little t
information that the NRC has made available it appears that in 1980, for example, the NRC processed about 470 operating license amendments. Of these perhaps 3
half or more were held to involve no significant hazards consideration.
Of the total number of 470, only eleven involved requested hearings. Of these eleven, i
i i
seven requests were either withdrawn or dismissed by the NRC.
l Though undoubtedly most of the NRC's findings of "no significant hazards I
consideration" are legitimate, the NRC's handling of the radiation venting at i
l TMI-2 shows that it will use such a finding to avoid public hearings on issues that are controversial and do involvc serious concerns of hazards to public health.
.I l
e stion 3 : What are your views on the adequacy of the standards used by the NRC f
to determine whether a particular reactor license amendment involves no significant i
hazards consideration?
- l Other than PANI:' n req ue '; t for a hea ring on a n.at ter.leemed to involve in.
significant hazards consideratbn by the NRC in 1980, there have been virtually no requests for hearings by the public in cases where such findings have been mmie j
that have been denied by the NRC. Accordingly such findings are usually uncontested.
l The only known contested finding was that involved in the TMI venting. Ilere the i
1 I
NRC standard for determining a significant hazards consideration was grossly l
1 1:. lequate.
The NRC waived a limitation on the rate of radiz.tien rel(ases 1
7 l
l fren the crippled TMI-2 reactor.
This increase in rate of release certain!-
involved significant considerations of hazards to public health.
Both betore i
and after the release the NRC obtained independent scientific informatica i
that the releases could injure and kill persons exposed to them.
i It is difficult to say how many other issues involving serious health i
considerations have escaped notice under the cloak of an NRC "no significant hazards consideration" finding.
But it is clear that if Congress validates the i
l i
NRC's approach in the Three Mile Island venting situation by amending 5 189
)
I i
i I in response to the "Sholly" decision it can be confidently predicted that
)
i i
l i
the NRC will i r. the future use this technique for denyi rg hearings to the public
(
l on s erious questions involving health and safety concerns.
l
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i l
l Question 4: k'ha t public policy if any is served by the requirements cf 5 189(c)
F i
l of the Atomic Eturgy Act with respect to license amendment; involving no i
._s_igni f ic a n t hazards consideration as those requirments have been interpreted i n j
"Sholly?"
Spe c ific ally, should there be a heari rg upon request that the NRC r
determines i tvolves no significant hazards consideration?
If such a hearine is i
request al should it stay the effectiveness of the license amendment?
The hearing requirements serve the most fundamental of all public policies
- those of democracy and due process of law.
Persons affe-ted by NRC decisions
(
are accorded the right under $ 189(a), not to mention the Constitution, to be heard before they are f.rjured in their persons or property by NRC actions.
Jf tin-NRC had appiled the law ini intespreted b) the Justice De pa r t raen t :uid the Court of Appeals i r.'Sholly," t he people around 'lbree Mile Island would L. ace i
had an opportunity to be hmrd before they were exposed to the deadly radiation I
released purstaant to the NRC orders.
l The"Sholly" case reveals that the NRC will on occa sion make a "rn significant hazards consideration" fi nli rg for the purpose of avoiding a hearing on a contro-l k
R versial issue of legitimate concern to the public and which raises 1.'gitimato l
i j
questions of public safety.
It has also been seen that seldom if ever ha.s i
anyone request u! a hearirg on issues other than those that ruise questions of legitimate public concern.
I r:crventions are extremely e: pensive..\\ligned l
agains t the public i rtervenors are not only government attorneys financed fron. the public treasury, but also attorneys f rom some of the largest law fi ms representing some of the largest corporations i r the country.
A company capable of raising $ 3 billion dollars or so necessary to build a i
nuclear reactor is c apable of spending a sizable amount in the legal proccedi rgs
~
l necessary to obtain the license from which it hopes to profit. These i
I corporations are typically public utili ty monopolics which can charge such i
)
I expens (s ultimately to ratepayers.
By way of contrast the public intervenors i
,I have no means to transfer the costs of their intervention nor do they have any 1
means to financially profit from any victory.
These citizens spend their own resources on attempts to correct or avoid conditions that will adversely affect i
1 j
their health and safety. The NRC has provided no evidence and there is no i
reason to believe that any citizens would spend their own resources attempting to litigate issues that have no bearing on their health and safety.
l By way of contrast there is every reason to believe from the past history i
I of the NRC i n th e "Sholly" cas e and numerous other cases that the NRC sill use 1
l any technique available to it to avoid public participation in issues irrespective i
l of whether they involve mattersraising serious health and safety concerns.
I j
The NRC has es tablished a consistent pattern of secretiveness and arrogance 1
l that has frustrated and thwarted public partic ipation. i n it deeinion makitr.
I l
O ru of the prescit Commissioners, I;radford, has f requently commented on thl l
3 pattern.
E.g.
In the !!atter of Nuclear Fuel Servicen,1 n:. CCil,
'z Nuc. 1:c;'. I:cp.
i 29,470-71.
}
The public policy impact of the NRC's proposal to limit the pu blic 's
]
right to a heacing on demand on license amendments is clear.
It will not eliminate
}
t any abuse by the public of this right because there is not one sh rud of evidence i
l
i 4
9 l
l l
t hei t this right has ever been or is now being abused.
The ::RC does not c' en l
l l
l attempt to assert that it wo21d have been an abuse of this "ht if a hearin, j
l l
had been ordered in "Sholly" before ratl.er than declared af Lt.-
the ventin.
l j
the clear impact of the NRC's requested legislation will be to foster l
I additional litig: tion over what is a "significant harards centideration" - th e
i very issue that is the subject of the NRC hearing desired. The NRC would j
i 1
be given one more weapon to deter public participation in its proceedings.
i I
i When it desires,the NRC could force poorly fimncoi public intervenors to litigate the question of "significant hazards consideration" before they
~
t I
1 l
could obtain a public heari rg where they might adduce evidence as to the i
extent of the hazards.
It only compounds the predicament of/ such intervenors e
i j
that the litigation must be brought not in a U.S. District Court but rather i
in a Court of Appeals which is unaccustomed to fact fi rding proceedings.
l The NRC has never hesitated to use the taxpayers' moccy to finance litigation against public intercs t intervenors.
The "Sholly" case is a good example of how j
the NRC wins even vl'en it blatantly violates the law and " loses" in Court.
l Public participation was successfully f rus trated in "Sholly" at no cost to 1
the agency but that of litigation.
The threat of litigation.: lone is usually i
l sufficient deterrent to prevent most under-financed public interest groups j
l from seeki rg to enforce their right to intervention.
The NRC's proposed
{
changes would create one more barrier to enforcement of legitimace hearirg rights and foster new litigation, j
I r the circumstance of the Shelly case, where the action taken by the NRC was irreversible, the hearing recpiest should cicarly have slayed the effectiveness of the orders.
There may be instances where actions are re.vernible j
and a prior hearing would not be absolutely required to serve due process j
i interests. The Courts are sensitive to all of the variables involved in mahi n; i
i the determination as to when a prior hearing is recuired to serve due process iiterests.
It would serve little purpose for Congress to enter this area by attempt!ng to spell out each circir. stance where a prier hearing is ar.d it not
I l
10 s
required. Such decisions are best left to the case by case application cf f
the general principles of equity with which the courts are well experienced.
(
It should be clear however that any decisions involving releases of radia. ion and the As Low As Reasonably Achievable (ALARA) ra le - such as was the cese s
with the TMI venting - require a prior hearing if requested, notwiths tanding i
il
[
any findings by the NRC. oncerni rg significant hazards.
The I:RC and its predecessor the AEC has constantly underestimated the hazards of radiation.
The NRC has continued the AEC's practice of serving as an adversary of the nuclear industry's interests by minimizing those hazards.
It is putting the fox in charge of the chicken coop to permi t the NRC to foreclose discussion on the question of radiation hazards by determining ahead of time that "rn significant hazards" are involved ir one of its decisions.
The very purpose of a hearing is to permit the public at less t the chance of overcoming this presumption which underlies mos t of the NRC's activities.
Ques tion 5 : Is there a need to amend $ 189(a) of the Atomic Enerny Act with respect to the consideration of reactor license amendments involving no significant hazards consideration as tha t section has been interpreted in the Sho11v decision?
If so what amendment wcu ld you recommend?
Since 5 18 9(a) has existed for many years on the statute books i r its present form, and with the exact meani rg that the "Sholly" decision accorded to it,and' has int caused any prob 1ces except in the fertile imaginations of the NRC lawyers, there is no reason to amend the statu te at the present time.
O t
i i
t
'b p
6 j
t Testimony before the Subcommittee on Nuclear Regulation of the 1
Senate Committee on Environment and Public Works i
By 9
Jay E.
Silberg l
Shaw, Pittman, Potts & Trowbridge l
i.
f 9
i O
March 25, 1981
l I
Mr. Chairman and Members of the Committee Good afternoon.
I am Jay Silberg, a partner in the law firm of Shaw, Pi ttman, Potts & Trowbridge here in Washington, D.
C.
Among other clients, my law firc represents some twenty I
electric utility companies with nuclear power plants in operation or under construction.
In addition to other ac-tivities, we represent these utilities in federal and state regulatory and licensing proceedings as well as in court cases.
Three of these utilities are Metropolitan Edison Company, Jersey Central Power & Light Company, and Pennsylvania Electric Company, the co-owners of the Three Mile Island Nuclear Station.
On their behalf, we have been participating in Sholly
- v. U.S. Nuclear Regulatory Commission.1 The November 19, 1980 decision of the U.
S.
Court of Appeals for the District of Columbia Circuit in Sholly overturned twenty years of consistent administrative practice by the NRC and its predecessor agency, the Atomic Energy Commission.
Since 1962, when Congress amended section 189.a of 1
Sholly v. United States Nuclear Regulatory Commission, F.2d
, No. 80-1691 (D.
C. Cir. 1980).
i the Atomic Energy Act to reduce the number of hearings which
[a~)
the AEC was required to hold,2 the Commission has consistently exercised its discretion to issue amendments to reactor operating licenses without prior notice and without prior
[
hearing where it has determined that the amendment had, in the V
language of the statute, "no significant hazards considera-tion."
The Sholly decision held that Section 189.a requires NRC to hold a hearing prior to issuing a license amendment whenever an interested party requests one, even if the Commission has properly determined that the amendment involves no significant hazards consideration.
This ruling was not, however without its critics on the court.
Four of the eleven sitting judges on the D.
C.
Circuit sharply dissented from the Sholly decision, charging that it " ignored logic", " distorted the legislative history", and " eviscerated the Congressional mandate".3 According to these judges:
The panel's interpretation of Section 189(a),
taken as a whole, renders it virtually impossible for the NRC faithfully to follow the implicit congressional directives found in that section.'
\\
2 Pub. L.87-615, 76 5 tat. 409 (1962).
3 Sholly v. United States Nuclear Regulatory Commission, Statement on Denial of Rehearing
[
En Banc (March 4, 1981) (Judges Tamm, MacKinnon,
\\
Robb and Wilkey).
4 Id., slip op. at 11.
a
)
i'
-I would -request that a copy of the Court's decision and the statement by the four - j udges be included in the record of this proceeding.
While the Sholly case purported to decide a number of -
interesting l issues (including some which were not even briefed by the parties),5 the most important immediate impact of the decision--should it go into ef fect--is that it could result in lengthy and. costly hearings precipitated by a simple request i
and having the potential for shutting down many of the nuclear power reactors now operating in this country.
These shut downs could easily last for nine months or more.
The economic impact of these shut downs on utilities and their customers would -be i
dramatic--typical costs for replacing the power generated by a nuclear plant range between $250,000 to $500,000 per day.6
}
i
- Over nine months, this would amount to $67.5 to $135 million.
f Equally significant would be the ef fect on oil imports.
In some-parts of the country--particularly the 5
For example, the Court decided that petitioners in Sholly had requested a hearing notwithstanding the-fact tha t this issue "was not argued by the parties."
Slip op. at 19, fn. 25.
6 Affidavit of Roger S.
Boyd, dated December 3, 1980, attached as Exhibit A to Metropolitan Edison Company's Petition for Rehearing ar.d Suggestion for Rehearing En Banc (December 3, 1980)
( " Boyd Af f. " ), p. 14. Mr. Boyd is a fo rme r Di r ec to r of NRC's Division of Project Management, with 18 years experience in the NRC and AEC licensing process. O.____._..-.-__,_-._.____._-
~ - -. -
Northeast--replacement power comes in large part from imported oil--about 30,000 barrels each day for a 1000 megawatt nuclear plant.7 O)
(
How could a license amendment which does not involve significant hazards consideration bring about the shutdown of a nuclear power plant?
To understand this, some background in O
t NRC licensing practices is helpful.
An NRC license typically x
includes a number of license conditions.
It also includes what are known as Technical Specifications.
For current plants, these are some 400 pages of very detailed technical require-
.ments, including plant design features, safety limits, safety t
system settings, limiting conditions for operation, surveil-N lance requirements, environmental technical specifications, and administrative controls.8 Because they are so detailed, Technical Specifications and other license provisions must frequently be modified.
All of these amendments require NRC approval.
As of last December, there were some 750 to 800 license amendment actions pending before NRC.
Many of these would be expected to be approved based upon a no significant hazards consideration finding.
i 7
Boyd Af f., p. 14.
8 Boyd Aff., p. 2; NRC Motion to Stay Issuance of Mandate (December 10, 1980) ("NRC Stay Motion"),
pp.
3-4., - - - - -. _ - - -. -.. - _ -. _..- -_-_ -.. -. -. - _ _
t
-s e
Over the past 4 years, NRC issued 1500 to 1600 license amendments involving no significant hazards considerations.9 While most of these license amendments are not needed for N
i.
continued plant operation, some are.
The NRC has estimated that if license amendments involving no significant hazards considerations are not issued in a timely manner, over the next few months some twenty nuclear power plants would either have to shut down or _ operate at reduced power levels.10 A typical case might involve a reactor's annual refueling.
In many cases, minor adjustments need to be made in the Technical Specification 4 to reflect the characteristics of the new fuel.
Even though these changes may meet the tests used by the NRC to determine whether there are significant hazards considerations, x
1.e.
I
-- is 'there significant new safety informa-I tion not previously considered;
-- is there a significant increase in the probability or consequences of an l
n A accident;
. 3 1
-- is there a significant decrease of a safety margin;11 d
1 9
Boyd Aff., pp. ; NRC Stay Mo tion, p. 2.
10 NRC Stay Motion, pp. 2-3.
11 Boyd Aff., p.
3.
-s-
l a license amendment is still required.
If that amendment is delayed because of a hearing, the plant cannot be ref ueled and it remains shut down.
(
I would request that two documents which set forth many of these facts be included in the record of this hearing--first the December 3, 1980 Affidavit of Roger Boyd which was part of
(
Metropolitan Edison's Petition for Rehearing to the Court of Appeals.
And second, the NRC's Motion to Stay Issuance of Mandate, filed with the Court of Appeals on December 10, 1980.
r Getting to the substance of the issue presented by the i
Sholly decision, I do not think that this hearing is the proper forum to argue whether the Court of Appeals was right or wrong.
That question will be presented to--and we hope decided by--the U.
S.
Supreme Court.
Suffice it to say that it is our opinion that the Court of Appeals misinterpretted the intent of Con-gress and ignored the Commission's consistent interpretation over almost twenty years of its governing statute.
The Cour t's opinion quotes--and then ignores--the legislative history which states that the 1962 amendment adding the "no significant A'
hazards consideration" language in no way limits the right of an interested party to intervene and request a hearing (and these are the key words] at some later stage.. 12 12 Sholly v. USNRC, slip op. at 19 (emphasis added).
The policy issue which this Committee should consider is whether the NRC should be able to issue license amendments having no significant hazards consideration without a prior hearing.
Let me focus on two questions:
.1.
Are more hearings in and of themselves a good thing? and; 2.
Should Congress allow the technical staff of the Commission to apply its expertise to determine whether some activities are sufficiently routine that they may be allowed to proceed without a prior public hearing?
As to the issue of more hearings, there can be no argument that evidentiary hearings and their associated trappings can take significant periods of time.
The Commission's request to Congress last week for authority to issue low power operating licenses while hearings are still underway is ample testimony that NRC hearings tend to be prolonged.13 It is difficult to conceive of a hearing being completed in less than nine months af ter the request is made, even if the issue is a fairly narrow one.14 Certainly where a license amendment is needed quickly 13 NRC Press Release No. 81-4 6, "NRC Proposes Interim Licensing Legislation" (March 19, 1981).
14 The NRC's recently proposed amendments to its rules of practice use eight months as the goal for the period of time from the issuance of the last Staff document to the initial decision in an operating license proceeding.
46 Fed. Reg. 17216 (March 18, 1981).
That eight month period excludes most of the prehearing procedures.
e and can not be applied for far in advance--as is of ten the case with amendments needed for refueling--a hearing would force the reactor out of operation.
The NRC is already having difficulty staffing its existing hearing load.15 There are shortages of Staff lawyers and Atomic Safety and Licensing Board members.
More hearings will hV only make matters worse.
Hearings on matters of no safety significance will necessarily detract Staff efforts from matters which do have safety significance.
While it is
/
impossible to predict how many hearings might result each year from the Sholly decision, there is no reason to believe that-the number would not be significant.
I would expect this to be the case even though there were few requests for hearings on no significant hazard consideration amendments before Sholly.
Should the Cholly decisica go into effect, the word will soon go out tha t there is now an easy way to shut reactors down.
While some might welcome the idea that more hearings would further delay NRC licensing or cause plant shutdowns, I do not believe that this result is in anyone's best interests.
It is k
certainly not a result which Congress could have intended in 1962 or should intend today.
15 See letter from Joseph M.
Hend r ie, Chairman,
NRC, to Honorable George H.
W.
Bush, President of the Senate (March 18, 1981) transmitting proposed legislation for interim licensing.
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Nor is there any evidence that prior hearings on the kind of narrow technical issues involved in no significant hazarda amendments are likely to produce useful results.
What are involved are specific technical matters--such as adjustments to maximum average planar linear heat generation rate, changes to minimum critical power ratio, and variations in moderator coefficients.10 O
Hearings with all the judicial trappings are not necessar-ily the best way to reach decisions on highly technical issues.
Despite a lawyer's natural inclination to think that his or her skills are crucial to the search for the truth--as it may arguably be in personal injury litigation or criminal cases--there is a much smaller likelihood that this is the case where purely technical questions are involved.17 And where the issues involve "no significant hazards consideration", there is even less of a chance that a hearing would serve a useful purpose.
It is perhaps ironic that the issue of prior hearings for this category of license amendments arose in the context of the krypton venting at TMI.
That activity had perhaps more public
.6 See NRC Stay Motion, p.
4; Boyd Aff., pp.
4-5.
17 See International Harvestor Co. v. Ruckelshaus, 478 F.2d 615,631 (D.
C.
Cir. 1973).
comment and input that any other license amendment the Commission has ever issued.
NRC published a draft environmen-tal assessment and solicited public comments.18 Some 800 written comments were received.
NRC held public meetings and met with citizens groups.
It consulted or received comments from six federal agencies, the Commonwealth of Pennsylvania, Oak Ridge National Laboratory, the National Council on Radiation Protection and Measurements and the Union of i
Concerned Scientists.19 NRC then issued a final environmental 20 assessment and considered it in two public meetings and a meeting with the Advisory Committee on Reactor Safeguards.
All this occurred before the orders which led to the Sholly decision were issued.
It is hard to imagine what additional public participation was necessary.
Even in a more typical case, the absence of a prior hearing does not foreclose public input.
Our position has not been that Section 189.a prohibits hearings on no significant hazards consideration amendments--only that it authorizes those 18 NUREG-0662, Draf t Environmental Assessment for the
]
Decontamination of the Three Mile Island Unit 2 Reactor Building Atmosphere (March 1980);
45 E ed. Reg. 20265 (March 27, 1980).
19 NUREG-0662, Final Environmental Assessment for Decontamination of the Three Mile Island Unit 2 Reactor Huilding Atmosphere (May, 1980), vol. II.
20 Id., vol. I.
s amendments to be made effective before a hearing...Most of these amendments are reversible.
A surveillance interval which has been shortened can be lengthened.
A calculational tech-nique' which is modified can txt returned to its original form.
For these amendments, a hearing which takes place af ter the license amendment is effective would be more than adequate.
Even for the exceptional, irreversible amendsent like the TMI venting, an af ter-the-fact hearing would let the NRC Staff know that an outside party was looking over its shoulder.
Other methods besides prior hearings are available for providing input on license amendments involving no significant hazards considerations.
of course, the application for the amendment and the Staff's disposition are all on the public record.
Interested persons can communicate their comments to 21 the Staff; they can file requests for orders to show causer they can seek reconsideration from the Commission; and they can ask the courts for injunctive relief.22 i
21 10 C.F.R.
$2.206.
Denial of requests for orders to show cause are judicially reviewable.
See, e g., Por ter County Chapter of 2
Isaak Walton League of America, Inc. v.
Nuclear Regulatory Commission, 606 F.2d 1363 (D. C. Cir. 1979).
22 The Sholly petitioners sought to stop the krypton venting at TMI by filing for inj unctive relief in the ' U. S. Court of Appeals for the Third Circuit as well as the D.
C.
Circuit.
These attempts were denied. _
fl.
I think that we must reasonably conclude that addi.tional hearings on' these types of amendments are not necessarily desirable as an end in itself.
The second question which I posed is whether Congress ought to allow the technical expertise of the NRC to determine that some amendments can be made immediately effective notwith-O standing a request for a hearing.
Congress has charged the NRC with responsibility for regulating the nuclear power ind ustr y. 23 The NRC Staff routinely oversees the highly technical questions surrounding the design, construction and op<tration of power reactors.
The Commission has shut plants down when it felt that safety so required.24 It has ordered design changes and procedural modifications.25 This is not to O'
say that NRC is free from criticism in the way that it has carried out its mandate.26 But these criticisms hardly justify the creation of a " shadow" NRC Staf f to duplicate the Staf f's work.
23 See Energy Reorganization Act of 1974, secs.
IdT( f), 203(b), 42 c.s.C. ss5841(f), 5843(b).
24
- See, e.g., Order to Show Cause, NRC Docket No.
50-334, 44 Fed. Reg. 16505 (March 19, 1979).
25 See, e.g., Order for Modification of License, NhC Docke t No. 50-321, 46 Fed. Reg. 9279 (January 28, 1981) (modification to BWR containment system).
26 See, e.g., Report of The President's Com-mission on the Accident at Three Mile Island (1979); Nuclear Regulatory Commission Special Inquiry Group, Three Mile Island:
A Repor t to the
{
Commissioners and to the Public (January, 1980). ;
7 If the NRC can not be relied upon to categorize those
~ p }
license amendments which raise significant safety questions
(
from those which do not, then there is no basis for respecting the NRC's judgments on any questions involving the public f
\\
health and safety.
I know that some would argue that the J
Commission's technical expertise should not be trusted.
These individuals can rattle off a laundry list of accidents, abnormal occurrences, and the like.
Nonetheless, when the actual record of the nuclear power industry is examined and compared with the alternatives 27 (or indeed with any other technology), the end result of the NRC's technical judgment is difficult to criticize.
With this review of the impact of Sholly and the under-O lying policy issues, there can be no question that the decision should be reversed.
But is legislation appropriate?
Since the Court purported to interpret what Congress intended in 1962, it is certainly appropriate for the Congress to correct the Court's conclusion.
If legislation is called for, what should that legislation O
say?
The NRC has proposed a bill to Congress which would reverse Sholly.20 The operative language would simply add a k
27 See, Committee on Nuclear and Alternative Energy Systems (CONAES) of the National Research Council, Energy in Transition, 1985-2010 (1979).
28 Letter from Joseph M.
Hendrie, Chairman, NRC, to Honorable Alan Simpson, Chairman Subcomm.
(continued next page)
FT new sentence to Section 189.a authorizing the Commission to issue and make immediately effective a license on a no signifi-cant hazards determination, notwithstanding the pendency before l
it of a hearing request.
This language would make it clea:
that no prior hearing was required, but would allow for hearings after license issuance.
This language is reasonably straightforward and would accomplish its purpose.
\\
The NRC's proposed legislative would also add a second new sentence to Section 189.a which in NRC's view would clarify that Section 189.a does not limit NRC's authority to take immediate action where necessary to protect the public health, safety and interest.
It is not clear that any such clarifica-tion is necessary.
The NRC has told the Court of Appeals that it does not interpret the Sholly decision as interfering which its authority to act when the public health, safety and interest requires.29 I would agree with the NRC that this is (continued) on Nuclear Regulation, Senate Comm. on Envi-ronment and Public Works. (March 11, 1981).
29 In a December 10, 1980 filing with the D.
C.
Circuit, the Commission discussed its
(
authority to issue immediately effective orders where the public health, safety and interest r.o requires.
We do not read the Court's decision as restricting that authority or the Commission's rulemaking authority.
Motion to Stay Issuance of Mandate, p.2. _ - - _ _ _ _ _ - _ _ _ _ _ - _ _ - _ _ _ _ _ _ _ _
P.
g.
l-i.
the proper reading of Sholly.
If that is the case,' the second j
sentence is not needed.
Thank you for the opportunity to testify before you today.
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