ML20205D482

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Proposes Course of Action Re Legal & Policy Considerations Concerning Util Proposal to Restart Facility,Per General Counsel 841105 Memo.Decision Should Be Made Promptly
ML20205D482
Person / Time
Site: San Onofre Southern California Edison icon.png
Issue date: 11/08/1984
From: Roberts
NRC COMMISSION (OCM)
To: Asselstine, Bernthal, Palladino
NRC COMMISSION (OCM)
Shared Package
ML20205D480 List:
References
FOIA-85-126 NUDOCS 8510160183
Download: ML20205D482 (2)
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Text

f y# '%<.,% UNITED STATES

! o NUCLEAR REGULATORY COMMISSION WA5HINGTON, D.C. 20655

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% / November 8, 1984 OFFICE OF THE COMMISSIONER MEMORANDUM FOR: Chairman Palladino Comissioner Asselstine Comissioner Bernthal Comissioner Zech FROM: Comissioner Roberts

SUBJECT:

PROPOSAL FOR RESTART OF SAN ON0FRE 1 I have read the General Counsel's November 5, 1984 memorandum regarding the legal and policy considerations relating to Southern California Edison Company's (SCE) proposal to restart the San Onofre 1 reactor, notwithstanding that all provisions of an Augus? 1982 order have not been fully complied with. In addition, I have read the staff's paper requesting policy guidance from the Comission (SECY-84-360) and the legal analysis submitted on SCE's behalf by the law firm of Miller tid Chevalier.

In my view, these documents plus the additional information presented to us in briefings by the staff and SCE provide a more than adequate basis for us to decide the issue before us: whether or not to permit the staff to make a decision, upon completion of its technical review, to permit restart of San Onofre 1. More importantly, I believe that it is imperative that we make that decision promptly if we are to avoid a situation whereby lack of Commis-sion action is tantamount to denial of SCE's request. The California PUC has ordered that, unless San Onofre 1 is returned to service by January 1,1985 (or by February 1,1985, if the PUC should find good cause for such an extension), SCE will incur substantial financial penalties. I understand that " return to service," for these purposes means, in general terms, contin-uous operation for 30 days at 65 percent of capacity. I am infor ed that, as a practical matter, the minimum time in which this could be achieved, assum-ing a trouble-free ascension to power, is 36 days. Thus, compliance with the PUC deadline will become a physical impossibility if a final NRC decision is not comunicated to the licensee by November 24, 1984.

Against this background, I propose that the Comission adopt the following course of action in this matter:

1. The OGC analysis indicates that there is no definitive legal answer as to whether the 1982 order was simply an " order" which can be relaxed without an opportunity for a prior hearing or an " amendment" which could be relaxed only in compliance with the "Sholly" procedures. In
e light of the policy considerations discussed by both Miller and Chevalier and the General Counsel, we should respond to the staff's request for i

policy guidance with the instruction that the August 1982 order should l not be treated as having amended the underlying license, but rather as

an order which may be relaxed for good and sufficient technical cause.

! (I note particularly that the order in question was a confirmation of the licensee's voluntary comitment to upgrade to .679 as an l 8510160183 850926

! PDR FOIA l l

ZAELME85-126 PDR

alternative to meeting the staff's request for proof that the plant met the .59 design basis. The proposed relaxation is premised upon a showing that the original demand--meeting the .5g design basis--is met and that significant upgrading to .67g has already been accomplished.)

2. Armed with this policy guidance, the staff should be further instructed to resolve the underlying technical issues according to normal proce-dures. The issue important for Comission consideration is the legal /

nolicy question identified in item 1 above; the adequacy of the licensee's showing of compliance with the .59 design basis is manifestly a proper subject for routine staff review.

3. A question has been raised regarding the need for ACRS review of this matter. Should the Commission believe that such review is desirable, the ACRS should be requested to provide its views to the Comission and tha staff by November 25, if possible. If that is not possible, the staff should be authorized to act upon completion of its technical review. Should restart be authorized by the staff, the ACRS review could be accomplished during the early stages of the facility's ascension to power. In this regard, I have been informed that the ACRS has requested presentation on this matter and that an ACRS subcomittee meeting has been scheduled for November 26.
4. The difficult procedural and legal policy issues raised in this case probably could not have been anticipated. Thus, the pressure on the Comission to act promptly appears to have been unavoidable. This case 1

demonstrates, however, the need for a thorough review of the staff practices with regard to the use of orders (especially confinnatory orders) and license amendments to accomplish safety upgrades. It may well be that the limited benefits of confirming, by order, actions which a licensee is willing to perform voluntarily are far outweighed by the potential loss of regulatory flexibility. I believe that the

, Comission should direct that staff prepare an analysis of this issue for our consideration in the formulat ion of guidance for future actions.

'SECY, please track.

cc: OGC OPE SECY EDO

. - ~ . _ - . . - _ , _ , _ . _ - -_m_.y. ,

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