ML20205H736

Recommends Approval of Publication of Final Regulations on Sholly Amend Providing for Requested OL Amends Involving NSHC Before Conducting Any Hearing

ML20205H736
Person / Time
Issue date:	12/12/1985
From:	Dircks W NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
To:
References
TASK-RIA, TASK-SE AA61-2-027, AA61-2-27, SECY-85-209A, NUDOCS 8601130476
Download: ML20205H736 (137)

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{{#Wiki_filter:e: O Q U tu ~~ 1 RULEMAKING ISSUE (Affirmation) December 12, 1985 SECY-85-209A For: The Commissioners From: William J. Dircks Executive Legal Director

Subject:

FINAL REGULATIONS ON N0 SIGNIFICANT HAZARDS CONSIDERATION (THE "SHOLLY AMENDMENT")

Purpose:

To obtain Commission approval of publication of final regulations on the Sholly Amendment providing for requested operating license amendments involving no significant hazards considerations before the conduct of any hearing. Discussion: The Commission is very familiar with the Sholly Amendment, part of Public Law 97-415. (See SECY-79-660 (December 13,1979); SECY-81-366 (June 9,1981); SECY-81-366A (August 28,1981); SECY-83-16 (January 13, 1983); SECY-83-16A (February 1,1983); SECY-83-16B (March 4,1983); and SECY-85-209 (June 11,1985). The Sholly Amendment is in Enclosure IB of SECY-83-16.) Among other things, the legislation authorized us to issue amendments to operating licenses involving no significant hazards considerations before the conduct of any hearing. It also directed us to promulgate, within 90 days of l enactment, regulations which establish: (a) standards for determining whether any amendment to an operating license involves no significant hazards consideration; (b) criteria for providing or, in emergency situations, dispensing with prior notice and reascnable opportunity for public comment on such a determination; and (c) procedures for consultation on any such determination i with the State in which the facility involved is lccated. l On March 30, 1983, the Commission approved two Federal Register notices, an interim final rule on standards and criteria and an interim final rule on notice and State consultation procedures. These two rules were published in the Federal Register on April 6, 1983 ((48 FR 14864) and 48 FR 14873)). Both solicited public comments and stated that the Commission would publish a final rule. The Commission has approved the first option in SECY-85-209, namely, keeping the present precedures 67~ /'

Contact:

Thomas F. Dorian, OELD 492-8690 / /

. and continuing to notice the. staff's proposed determinations. The Federal Register notice for the final rule (Enclosure 1) is consistent with this option. So that the full record of the Conmission's actions is readily available and so that it will not get misinterpreted or lost, the notice combines the statements of consideration of the two interim final rules and is more detailed than usual. The first section of the notice sets out (A) the affected legislation, regulations and procedures (pp. 3-7), (B) the Court's Sholly decision and the subsequent legislation (pp. 8-13), and (C) the basis for the interim final rules, including the 1976 petition for rulemaking (p.13), the 1980 proposed rule (pp. 13-16), the comments on the proposed rule (pp. 16-22), a preliminary discussion on reracking of spent fuel pools (pp. 22-24), a discussion of amendments involving irreversible consequences (pp. 24-27), and two lists of examples: one for those amendments considered likely to involve significant hazards considerations (pp. 27-28) and one for those considered not likely to involve significant hazards considerations (pp. 28-30). The second section sets out the responses to the comments on the two interim final rules. (The comments are described in some detail in Enclosure 2.) The Consission should note several issues in this section. First, as to the comment that it should incorporate the examples into the rule (p.31), it has already considered and disposed of this matter. See SECY-83-16A (where the staff incorporated the examples into the rule) and SECY-83-16B (where the Commission decided not to incorporate the examples into the rule). Second, the issue of repair or replacement of major components or systems important to safety (raised by some commenters) necessitatea an addition to the list of examples. See pp. 37-39. Third, the issue of rerackings is discussec and an example is added to the list. See pp.40-46. Fourth, the issues of emergency titaations and exigent circumstances are discussed and clarified. See pp. 49-57 and 62. The third section of the notice describes the staff's present pract.ces and modifications to these under the final rule. See p. 66 et seg. The Sholly statistics are presented at pp. 71-79. In this regard, it should be noted that the regulatory analysis contained in

O SECY-83-16 and SECY-83-16B has been updated as discussed in connection with SECY-85-209. See p. 91. In conclusion, the Commission should note the legislative requirement for Sholly notices has placed an additional resource burden on the staff, and the benefits to the public of the legislation may not be commensurate with the cost. However, given the legislative requirement, the Sholly precedures are working adequately. Consequently, no major changes have been made to the rule. See pp. 94-106. These procedures, however, are made necessary because of the amendments Congress has adopted to Section 189 of the Atomic Energy Act of 1954 over the years. If the Commission wishes to suggest amendatory language to the Congress it might consider recommending the removal of the mandatory hearing require-ment adopted in 1957. Such a change would then allow a simple notice requirement to be substituted for the complicated and convoluted language of the Shelly amendment which results in giving the public notice of the Commission's intent to dispense with 30 days notice. For example, Section 189 stated more simply without the archaic mandatory hearing requirement could be revised to read: "a(1) In any proceeding under this Act, for the granting, suspending, revoking, or amending of any license or construction permit, or application to transfer control, and in any proceeding for the issuance or modification of rules and regulations dealing with the activities of licensees, and in any proceeding for the issuance or modification of rules and regulations dealing with the activities of licensees, and in any proceeding for the payment of compensation, an award, or royalties under sections 153, 157, 186 c., or 188, the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such ' person as a party to such proceeding. The Commission shall provide held-a-heaviRg-afteF thirty days' notice and publication once in the Federal Register, on each i facility application under section 103 or 104 b. feF-a eeRStFuetieR-peFRit-feF-a-faeility, and on any ) application under section 104 c. feF-a-eeRStFWetieR peFmit for a testing facility. TR-eases-WheFe-SWeh 1 a-seRStFWetieR-peFRit-haS-beer-4SSWed-felleWiR$-the heldiRg-ef-Swek-a-heaFiRgT-the-GeFmiSSieR-mayy-iR the-abSeRee-ef-a-FeeweSt-theFefeF-by-aRy-peFSRR-w he Se-in te ve S t-may-be-a f fe e ted y-iS Sw e-a R-epe Fa t4 R g -liseRSe-ev-aR-ameRdmeRt-te-a-seRS$FBelieR-peFRit-eF -aR-ameRdmeRt-te-aR-epeFa%5 g-IieeRSe-Wi*.heHt-a R -heaf 4RgT-but-WpeR-th4Fty-days--Retiee-aRd pwblieatieR-ef-itS-iRtGRt-te-de-Se. The Comnission may dispense with such thirty days' notice and

. publication in exigent or emergency situations with respect to any application for an amenoment to a construction permit or an amendment to an operating license upon a determination by the Commission that the amendment involves no significant hazards con-sideration, arovided that notice and publication once in the

ederal Register is provided within thirty days of making such a determination.

"(2)(A) The Commission may issue ano make immediately effective any amendment to a construction permit or an operating license, upon a determination by the Commission that such amendment involves no significant hazards consideration, notwithstanding the pendency before the Commission of a request for a hearing from any person. Such amendment may be issued and made immediately effective in advance of the holding and/or completion of any required hearing. In determining under this section whether such amendment involves no significant hazards consideration, the Commission shall consult with the State in which the facility involved is located. In all other respects such amendment shall meet the requirements of this Act. (B) - delete (C) - delete Recommendations: That the Commission: (a) Approve publication of the final rule in Enclosure 1 on the "Sholly Amendment." (b) Note that: l 1. The final rule will take effect 60 days after publication. j 2. The previous Regulatory Analysis in SECY-83-16 and 16B is low by a factor of about three.

3. is a summary of the comments.

The respenses to the comments on the two interim final rules are found in Enclosure 1 at pp. 31 to 66. As explained in the statement of cons:derations, two examples have been added as ~

e a result of the public comments and further staff study. 4. As requested by the Committee on Environment and Public Works of the Senate, the Ccmmission has been transmitting to it a monthly report on the Commission's determinations on no significant hazards considerations. This has been accomplished by sending it a copy of the Federal Register notice (with exceptions made for emergencies) containing the determinations. Note in this regard that the staff has been making proposed determinations on no significant hazards considerations but has not normally been making final determinations absent a request for a hearing. 5. Under 10 CFR 51.22(c)(3) and 51.22(b), preparation of an environmental impact statement or an environmental assessment is not necessary, since the eligibility criteria for categorical exclusion are met. 6. Under 10 CFR 50.109 preparation of a backfit analysis is not necessary, since the rule is required by legislation (whether or not it meets the standard in 5 50.109(a)(3)) since the final rule is a modification of two interim final rules promulgated before new s 50.109 became effective on October 21, 1985, and since the final rule is procedural and not within the definition of backfit in i 50.109(a)(1). 7. The reporting requirement in the final rule need not be cleared with the Office of Management and Budget under the Paperwork Reduction Act because OMB has already cleared the two interim final rules. 8. The rule contains the requisite Regulatory Flexibility Act certification. 9. Appropriate Congressional Committees will be informed of the rule after the Commission has acted. OPA believes that a public announcement is unnecessary.

O 10. All kncwn interested persons, including the States involved, will receive by direct mail a copy of the notice of final rulemaking. 11. The General Ccunsel's office has reviewed the previous draft of the rule and generally agrees with it. 12. The Commission may wish to direct the staff to provide a proposed legislative package to amend Section 189 of the Atomic Energy Act, as amended along the lines cutlined above. Scheduling: If scheduled on the Commission agenda, it is recommended that this paper be considered at an open meeting. No specific circumstances are known to staff which would require Commission action by any particular date in the near term. /* / f I p William,1.'CDircks Executive Director for Operations

Enclosures:

1. Final rule on standards for no significant hazards consideration and on notice and State consultation. 2. Summary of public ccmments. 4 e

o Commissioners' comments or consent should be provided directly to the Office of the Secretary by c.o.b. Tuesday, January 7, 1986. Commission Staff Office comments, if any, should be submitted to the Comnissioners NLT Tuesday, December 31, 1985, with an information copy to the Office of the Secretary. If the paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected. DISTRIBUTION: Commissioners OGC OPE OI OCA OIA i OPA REGIONAL OFFICES EDO ELD ACRS ASLBP ASLAP SECY

..-M e .A 9 l EllCLOSURE 1

s 9 4 [7590-01] NUCLEAR REGULATORY COMMISSION 10 C.F.R. Parts 2 and 50 Final Procedures and Standards on No Significant Hazards Considerations AGENCY: Nuclear Regulatory Commission. ACTION: Final rule.

SUMMARY

Pursuant to Public Law 97-415, NRC is amending its regulations in final form (1) to provide procedures under which, before granting or denying an amendment, normally it would give notice of opportunity for a hearing on applications it receives to amend operating licenses for nuclear power reactors and tescing facilities and prior notice and reasonable opportunity for public comment on proposed determinations about whether these amendments involve no significant hazards considerations, (2) to specify criteria for dispensing with such prior notice and reasonable opportunity for public comment for amendment requests where emergency situations exist and for shortening the comment period for amendment requests where exigent circumstances exist, and (3) to furnish procedures for consultation on these determinations with the State in which the facility involved is located. Research reactors are not covered by this rule. These procedures normally provide the public and the States with prior notice of NRC's determinations involving no significant hazards considerations and with an opportunity to comment on its acticns. EFFECTIVE DATE:

' ADDRESSES: Copies of comments received on the amendments and of the other documents described below may be examined in the Commission's Public Document Room at 1717 H Street, NW., Washington, D.C. Copies may be obtained from the NRC/GPO Sales Program, U.S. Nuclear Regulatory Commission, Washington, D.C. 2C555. FOR FURTHER INFORMATION CONTACT: Thomas F. Dorian, Esq., Office of the Executive Legal Director, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555. Telephone: (301) 492-8690. SUPPLEMENTARY INFORMATION: INTRODUCTION Public Law 97-415, signed on January 4, 1983, among other things, directed NRC to promulgate regulations which establish (a) standards for determining whether an amendment to an operating license involves no significant hazards consideration, (b} criteria for providing, or, in emergency situations, dispensing with, prior notice and public comment on any such determination, and (c) procedures for consulting with the State in which the facility involved is located on such a determination about an amendment request. See Conf. Rep. No. 97-884, 97th Cong., 2d Sess. (1982). The legislation also authorized NRC to issue and make immediately effective an amendment to a license, upon a determination that the amendment involves no significant hazards consideration (even though NRC has before it a request for a hearing by an interested person) and in advance of the holding and completion of any required hearing.

o 0 The two interim final rules published in the FEDERAL PEGISTER on April 6, 1983 ((48 FR 14864) and (48 FR 14873)), responded to the statutory directive that NRC expeditiously promulgate regulations on the three items noted above. The first dealt with the standards themselves and the second with the notice and State consultation procedures. These regulations were issued, as final though in interim form, and comments have been considered on them. The'following discussion is divided into three parts. The first discusses the background for this 'inal rule, including a discussion of the proposed rule on the standards published before passage of the legislation, as well as an overview of the interim final rules published after the legislation was enacted. See 45 FR 20491 (March 28, 1980). The second analyzes and responds to the public comments on the two interim final rules. And the third discusses the present practice and modifications made to it by the final rule. I. BACKGROUND A. Affected Legislation, Regulations and Procedures When the Atomic Energy Act of 1954 (Act) was adopted in 1954, it contained no provision which required a public hearing on issuance of a construction permit or an operating license for a nuclear power reactor in the absence of a request from an interested person. In 1957, the Act was amended to require that mandatory hearings be held before issuance of both a construc-tion permit and an operating license for power reactors and certain other facilities. See Public Law 85-256 (71 Stat. 576) amending section 189a. of the Act.

4 Q 1 The 1957 amendments to the Act were interpreted by the Commission as requiring a " mandatory hearing" before issuance of amendments to construction permits and operating licenses. See, e.g., Hearing Before the Subcommittee on Legislation, Joint Committee on Atom!: Er.argy, 87th Cong., 2d. Sess. (April 17,1962), at 6.) Partially in response to the administrative rigidity and cumbersome procedures which this interpretation forced upon the Commission (see, Joint Committee on Atomic Energy Staff Study, " Improving the AEC Regulatory Process", March 1961, pp. 49-50), section 189a. of the Act was amended in 1962 to eliminate the requirement for a mandatory public hearing except upon the application for a construction permit for a power or testing facility. As stated in the report of the Joint Committee on Atonic Energy which recommended the amendments: Accordingly, this section will eliminate the requirements for a mandatory hearing, except upon the application for a construction permit for a power or testing facility. Under this plan, the issuance of amendments to such construction permits, and the issuance of operating licenses and amendments to operating licenses, would be only after a 30-day public notice and an offer of hearing. In the cbsence of a request for a hearing, issuance of an amendment to a construction permit, or issuance of an operating license, or an amendment to an operating license, would be possible without formal proceedings, but on the public record. It will also be possible for the Commission to dispense with the 30-day notice recuirement where the application presents no significant hazards consideration. This criterion is presently being applied by the Commission under the terms of AEC Regulatiens 50.59. House Report No. 1966, 87th Cong., 2d Sess., p. 8. Thus, according to the 1962 amendments, a mandatory public hearing would no longer be required before issuance of an amendment to a construction permit or operating license and a thirty-day prior public notice would be required only if the proposed amendment involved a "significant hazards consideration." In sum, section 189a. of the Act, new provided that, upon thirty-days' notice published in the FEDERAL REGISTER, the Commission may issue an operating

9 license, or an amendment to an operating license, or an amendment to a construction permit, for a facility licensed under sections 103 or 104b. of the Act, or for a testing facility licensed under section 104c., without a public hearing if no hearing is reouested by an interested person. Section 189a. also permitted the Commission to dispense with such thirty-days' notice and FEDERAL REGISTER publication with respect to the issuance of an amendment to a construction permit or an amendment to an operating license upon a deter-mination by it that the amendment involves no significant hazards considera-tion. These provisions were incorporated into the Corrmission's regulations, which were subsequently changed. See 5% 2.105, 2.106, 50.58(a) and (b) and 50.91. The Commission's regulations before promulgation of the two interim final rules provided for prior notice of an application for an amendment when a determination was made that there is a significant hazards consideration and provided an cpportunity for interested members of the public to request a hearing. Hence, if a requested license amendment were found to involve a significant hazards consideration, the amendment would not be issued until after any required hearino were completed or after expiration of the notice period. In addition, % 50.58(b) further explained the Ccrmission's hearing and notice procedures, as follows: The Commission will hold a hearing after at least 30 days notice and publication once in the FEDERAL REGISTER on each application for a construction permit for a production or utilization facility which is of a type described in 9 50.21(b) or s 50.22 or which is a testing facility. When a construction permit has been issued for

o such a facility following the holding of a public hearing and an application is made for an operating license or for an amendment to a construction: permit or operating license, the Commission may hold a hearing after at least 30 days notice and publication once in the FEDERAL REGISTER or, in the absence of a request therefor by any person whose interest may be affected, may issue an operating license or an amendeent to a construction permit or operating license without a hecring, upon 30 days notice and publication once in the FEDERAL REGIST2R of its intent to do so. If the Commission finds that no significant hazards consideration is presented by an application for an amendment to a construction permit or operating license, it may dispense with such notice and publication and may issue the amendment. The Commission noted in its interim final rules that, after it has made its determination about whether a proposed license amendment does-cr does not present a significant hazards consideration, its hearing and attendant notice requirements come into play. Under its former rules, the Commission made its determination about whether it should provide an opportunity for a hearing before issuing an amendment together with its determination about whether it shoulo issue a prior notice -- and the central factor in both determinations was the issue of "no significant hazards censideration." It had been argued that in practice this meant that the staff often decided the merits of an amendment together with the issue of whether it should give notice before or after it has issued the amendment. See 48 FR 14864, at 14EE5 (April 6, 1983). The argument arose, in part, because of some concern that the Act at.d the regulations did not define the term "significant hazards consideration" and did not establish criteria for determining when a proposed amendment involves "significant hazards considerations." Section 50.59 has, of course, all along set forth criteria for determining when a proposed change, test or experiment involves an "unreviewed safety question" but it was and is clear ~ that not every such question involves a "significant hazards consideraticn." L_

9 The Commission's practice with regard to license amendments involving no significant hazards consideration (unless, as a matter of discretion, prior notice was given) was to issue the amendment and then publish in the FEDERAL REGISTER a " notice of issuance." See 5 2.106. In such a case, interested members of the public who wished to object to the amendment and request a hearing could do so, but a request for a hearing did not, by itself, suspend the effectiveness of the amendment. Thus, both the notice and hearing, if one were requested, occurred after the amendment was issued. It is important to bear in mind as one reads this background statement and the final regulations that there is no intrinsic safety significance to the "no significant hazards consideration" standard. Neither as a notice standard nor as a standard about when a hearing may be held does it have a substantive safety significance. Whether or not an action requires prior notice or a prior hearing, no license and no amendment may be issued unless the Commission concludes that it provides reasonable assurance that the public health and safety will not be endangered and that the action will not be inimical to the common defense and security or to the health and safety of the public. See, e.g., 9 50.57(a). In short, the "no significant hazards consideration" standard is a procedural standard which governs whether an opportunity for a prior hearing must be provided before action is taken by the Commission, and, as discussed later, whether prior notice for public comment may be dispensed with in emergency situations or shortened in exigent circumstances.

e B. The Sholly Decision and the New legislation The Commission's practice of not providing an opportunity for a prior hearing on a license amendment not involving significant hazards considerations was held to be improper in Sholly v. NRC, 651 F.2d 780 (1980), rehearing denied, 651 F.2d 792 (1980), cert. granted 451 U.S. 1016 (1981), vacated 459 U.S. 1154 (1983) (Sholly). In that case the U.S. Court of Appeals for the District of Columbia Circuit ruled that, under section 189a. of the Act, NRC must hold a prior hearing before an amendment to an operating license for a nuclear power plant can become effective, if there has been a request for hearing (or an expression of interest in the subject matter of the proposed amendment which is sufficient to constitute a request for a hearing). A prior hearing, said the Court, is required even when NRC has made a finding that a proposed amendment involves no significant hazards consideration and has determined to dispense with prior notice in the FEDERAL REGISTER. At the request of the Commission and the Department of Justice, the Supreme Court agreed to review the Court of Appeals' interpretation of section 189a. of the Act. On February 22, 1983, the Supreme Court vacated the Court of Appeal's opinion as moot and directed the Court of Appeals to reconsider the case n.ight of the new legislation. On April 4,1983, the Court of Appeals, i having considered the legislation, found that the portion of its opinion holding that a hearing requested under section 189a. of the Act must be held before a license amendment becomes effective would be moot as soon as NRC promulgated the regulations to which the legislation referred. The Ccurt also fcund that NRC, of course, was still under a statutory mandate to hold a hearing after an amendment became effective, if requested to do so by an interected party. Appeal Ncs. 80-1691, 80-1783, and 80-1784

_g-The Court of Appeals' decision did not involve and has no effect upon the Commission's authority to order immediately effective amendments, without prior notice or hearing, when the public health, safety, or interest so requires. See, Administrative Procedure Act, 5 9(b), 5 U.S.C. 5 558(c), section 161 of the Atomic Energy Act, and 10 C.F.R. 55 2.202(f) and 2.204. Similarly, the Court did not alter existing law with regard to the Commission's pleading requirements, which are designed to enable the Commission to determine whether a person requesting a hearing is, in fact, an " interested person" within the meaning of section 189a. -- that is, whether the person has demonstrated standing and identified one or more issues to be litigated. See, BPI v. Atomic Enercy Commission, 502 F.2d 424, 428 (D.C. Cir.1974), where the Court stated that, "Under its procedural regulations it is not unreasonable for the Commission to require that the prospective intervenor first specify the basis for his request for a hearing." The Commission believed that legislation was needed to change the result reached by the Court in Sholly because of the implications of the requirement that the Commission grant a requested hearing before it could issue a license amendment involving no significant hazards consideration. It also believed that, since most requested license amendments involving no significant hazards consideration are routine in nature, prior hearings on such amendments could result in unnecessary disruption or delay in the operations of nuclear pcwer plants by imposing regulatory burdens unrelated to significant safety catters. Subsequently, on March 11, 1981, the Commission submitted proposed legislation to Congress (introduced as S.912) that would expressly authorize it to issue a license amendment

9 before holding a hearing requested by an interested persen, when it has made a determination that no significant hazards consideration is involved in the amendment. After the House and Senate conferees considered two similar bills, H.R.2330 and S.1207, they agreed on a unified version (see Conf. Rep. No. 97-884, 97th Cong., 2d. Sess. (1982)) and passed Public Law 97-415. Specifically, section 12(a) of that law amends section 189a of the Act by adding the following with respect to license amendments involving no significant hazards considerations: (2)(A) The Commission may issue and make inrediately effective any amendment to an operating license, upon a determination by the Commission that such amendment involves no significant hazards consideration, notwithstanding the pendency before the Commissicn of a request for a hearing from any person. Such amendment may be issued and made immediately effective in advance of the holding and completion of any required hearing. In determining under this section whether such amendment involves no significant hazards consideration, the Commission shall consult with the State in which the facility involved is located. In all other respects such amendment shall meet the requirements of this Act. (B) The Commission shall periodically (but not less frequently than once every thirty days) publish notice of any amendments issued, or proposed to be issued, as provided in subparagraph (A). Each such notice shall include all amendments issued, or proposed.to be issued, since the date of publication of the last such periodic ( notice. Such notice shall, with respect to each amendment or proposed amendment (i) identify the facility involved; and (ii) L provide a brief description of such amendment. Nothing in this subsection shall be construed to delay the effective date of any amenament. (C) The Comission shall, during the ninety-day period following the effective date of this paragraph, promulgate regulations establishing (i) standards for determining whether any amendment to an operating license involves no significant hazards consideration; (ii) criteria for providing or, in emergency situations, dispensing with prior notice and reascnable opportunity for public comment en any such determination, which l l

9 criteria shall take into account the exigency of the need for the amendment involved; and (iii) procedures for consultation on any such determination with the State in which the facility involved is located. Section 12(b) of that law specifies that: (b) The authority of the Nuclear Regulatory Commission, under the provisions of the amendment made by subsection (a), to issue and to make immediately effective any amendment to an operating license shall take effect upon the promulgation by the Commission of the regulations required in such provisions. Thus, as noted above, the legislation authorizes NRC to issue and make immediately effective an amendment to an operating license upon a determination that the amendment involves no significant hazards censiderations, even though NRC has before it a request for a hearing from an interested person. In this regard, the Conference Report states: The conference agreement maintains the requirement of the current section 189a. of the Atomic Energy Act that a hearing on the license amendment be held upon the request of any person whose interest may be affected. The agreement simply authorizes the Commission, in those cases where the amendment involved poses no significant hazards consideration, to issue the license amendment and allow it to take effect before this hearing is held or completed. The conferees intend that the Commission will use this 1 authority carefully, applying it only to those license amendments which pose no significant hazards consideration. Conf. Rep. No. 97-884, 2d. Sess., at 37(1982). And the Senate has stressed: its strong desire to preserve for the public a meaningful right to participate ir decisions regarding the commercial use of nuclear power. Thus, the provision does not dispense with the recuirement for a hearing, and the NRC, if requested [by an interested person], must conduct a hearing after the license amendment takes effect. See S. Rep. No. 97-113, 97th Cong., 1st Sess., at 14 (1981).

o The public notice provision was explained by the Conference Report as follows: The conferees note that the purpose of requiring prior notice and an opportunity for public ccmment before a license amend-ment may take effect, as provided in subsection (2)(C)(ii) for all but emergency situations, is to allow at least a minimum level of citizen inpilt into the threshold question of whether the proposed license amendment involves significant health or safety issues. While this subsection of the conference agree-ment preserves for the Commission substantial flexibility to tailor the notice and comment procedures to the exigency of the need for the license amendment, the conferees expect the content, placement and timing of the notice to be reasonably calculated to allow residents of the area surrounding the facility an adequate opportunity to formulate and submit reasoned comments. The requirement in subsection 2(C)(ii) that the Conmission promulgate criteria for providing or dispensing with prior notice and public comment on a proposed determination that a license amendment involves no significant hazards consideration reflects the conferees' intent that, wherever practicable, the Corrmission should publish prior notice of, and provide for prior public comment on, such a proposed determination.

n the context of subsection (2)(C)(ii), the conferees understand the term " emergency situations" to encompass only those rare cases in which immediate action is necessary to prevent the shutdown or derating of an operating commercial reactor.

The Commission's regulations should insure that the " Emergency situations" exception under section 12 of the conference agreement will not apply if the licensee has failed to apply for the license amendment in a timely fashion. In other words, the licensee should not be able to take advantage of the emergency itself. To prevent abuses of this provision, the conferees expect the Commission to independently assess the licensee's reasons for failure to file an application sufficiently in advance of the threatened closure or derating of the facility. Conf. Rep. No. 97-884, 97th Cong., 2d Sess., at 38 (1982).

. C. Basis for Interim Final Rule on Standards for Determining Whether an Amendment to an Operating License Involves No Significant Hazards Considerations ard Examples of Amendments that Are Considered Likely or Not Likely to lqvolve Significant Hazards Considerations ~ Many of the comments on the interim final rules were the same or were similar to those on the proposed rule. To provide a convenient means for future reference, the comments and responses on the proposed rule and the petition for rulemaking are consolicated and repeated here with references to the earlier FEDERAL REGISTER citations. The comments received on the interim final rules are then discussed and the Commission's responses are provided. 1. Petition and Proposed Rule General The Commission's interim final rule on standards for determining whether an amendment involves no significant hazards consideration resulted from a notice of proposed rulemaking issued in response to a petition for rulemaking (PRM 50-17) sebmitted by letter to the Secretary of the Commmission on May 7, 1976, by-Mr. Robert Lowenstein. For the reasons discussed below, the petition was denied. See 48 FR 14867. However, the Commission published proposed standards, as intended by the petitioner, though not the standards petitioned for. (PRM-50-17 was published for comment in the FEDERAL REGISTER on June 14, 1976 (41 FR 24006)). The staff's recommendations on this petition are in SECY-79-660 (December 13,1979). The notice of proposed rulemaking was published in the FEDERAL REGISTER on March 28, 1980 (45 FR 20491). Note that the prooosed rule was published before passage of the legislation and

that the Congress was aware of this rule during passage of the legislation. The staff's re' commendations first on a final rule and later on the interim final rules are in SECY-81-366, 81-366A, 83-16, 83-16A and 83-16B. (These documents are available for examination in the Commission's Public Document Rcom at 1717 H Street, NW, Washingten, D.C.) l In issuing the proposed rule, the Commission sought to define more precisely the standards for determining when an amendment application involved no significant hazards considerations. These standards would have applied to amendments to operating licenses, as requested by the petition for rulo-making, and also to construction permit amendments, to whatever extent considered appropriate. The Commission later decided that these standards should not be applied to amendments to construction permits, since such " amendments are very rare and normally would not be expected to involve a significant hazards consideration. It therefore modified the proposed rule accordingly. Additionally, the Commission stated in the interim final rules that it would review the extent to which and the way standards should be applied to research reactors. And it noted that, in the meanwhile, it would ' handle case-by-case any amendments requested for construction permits or for research reactors with respect to the issue of significant hazards considerations. 48 FR, at 14867. e Befo,re the pr6 posed rule on standards was published, the Commission's staff was guided, in reaching its determinations with respect to no significant hazards considerations, by standards very similar to those described in the

_ _ _ _ ~ -.

• proposed rule and in the interim final rules.

In addition, a list of examples have been used of amendments likely to involve, and not likely to involve, significant hazards considerations when the standards are applied. These examples were employed by the Commission in developing both the proposed rule and the interim final rules. The notice of proposed rulemaking contained standards proposed by the Commission to be incorporated into Part 50, and the statement of considerations contained examples of amendments to an operating license that are considered "likely" and "not likely" to involve a signif-icant hazards consideration. The examples were samples of precedents with which the staff was familiar; they were representative of certain kinds of circumstances; however, they did not cover the entire range of possibilities; nor did they cover every facet of a particular situation. Therefore, it was clear that the standards ultimately would have to govern a determination about whether or not a proposed amendment involves significant hazards considerations. The three standards proposed in the notice of proposed rulemaking were whether operation in accordance with the proposed amendment would not: (1) involve a significant increase in the probability or consequences of an accident previously evaluated, (2) create the possibility of an accident i of a type different from any evaluated previously, or (3) involve a signifi-cant reduction in a margin of safety. The interim final rules did not change these standards. They did, however, change the introductory phrase to make the standards easier to understand and to use. 4

, As a result of the legislation, the Commission formulated separate notice and State consultation procedures that provide in all (except emergency) situations prior notice of amendment requests. The notices usually make a " proposed determination" about whether or not significant hazards considera-I tions are involved in connection with an amendment and, therefore, whether or not to offer an opportunity for a hearing before an amendment is issued; if a hearing recuest is received, a final determination is made about whether or not significant hazards considerations are involved. The decision about whether or not to issue an amendment has continued to remain one that, as a separe'e matter, is based on public health and safety. 2. Comments on Proposed Rule and Responses to these Comments a. General Nine persons submitted comments on the petition for rulemaking and nine persons submitted comments on the proposed amendments. One of the commenters stated that all three standards were unclear and useless in that they implied a level of detailed review of amendment applications far beyond what the staff normally performs. When it promulgated the interim final rule, the Commission stated in response to this comme..e that it was its considered judgment that the standards have been and will continue to be useful in making the necessary reviews. 48 FR 14864, at 14867 (April 6, 1983). It added its belief that the standards when used together with the examples will enable it to make the requisite decisions. Id. In this regard, it noted that Cengress was more than aware of the Commission's standards and proposed their expeditious promulgation. It cuoted, for example, the

9 Senate Report which stated: ... the Committee notes that the Commissicn has already issued for public comment rules including standards for determining whether an amendment involves no significant hazards consideration. The Committee believes that the Commission should be able to build upon this past effort, and it expects H e Commission to act i expeditiously in promulgating the required standards within the time specified in section 301 [i.e., within 90 days after enactment]. S. Rep. No. 97-113, 97th Cong., 1st Sess., at 15 (1981). Similarly, the House noted: The committee amendment provides the Commission with the authority to issue and make immediately effective amendments to licenses prior to the conduct or completion of any hearing required by section 189(a) when it determines that the amendment involves no significant hazards consideration. Hcwever,the authority of the Commission to do so is discretionary, and does not negate the requirement imposed by the Sholly decision that such a hearing, upon request, be subsequently held. Moreover, the Committee's action is in light of the fact that the Commission has already issued for public comment rules including standards for determinino whether an amendment involves no signifi-cant hazards considerations. The Commission also has a long line of case-by-case precedents under which it has established criteria for such determinations.... H. Rep. No. 97-22 (Part 2), 97th Cong., 1st Sess., at 26 (1981) (Emphasis added). A number of commenters recommended, in regard to the second criterion in the proposed rule, that a threshold level for accident consequences (for example, the limits in 10 C.F.R. Part 100) be established to eliminate insignificant types of accidents from being given prior notice. This comment was not accepted. The Commission stated that setting a threshold level for accident consequences could eliminate a group of amendments with respect to accidents which have not been previously evaluated or which, if previcusly evaluated, may turn out after further evaluation to have more severe consequences than previously evaluated. 48 FR, at 14868. t

9 The Commission explained that it is possible, for example, that there may be a class of license amendments sought by a licensee which, while designed to improve or increase safety may, on balance, involve a significant hazards consideration because it results in operation of a reactor with a reduced safety margin due to other factors or problems (i.e., the net effect is a reduction in safety of some significance). Id. Such a class of amendments typically is also proposed by a licensee as an interim or final resolution of some significant safety issue that was not raised or resolved before issuance of the operating license -- and, based on an evaluation of the new safety issue, they may result in a reduction of a safety margin believed to have been present when the license was issued. In this instance, the presence of the new safety issue in the review of the proposed amendment, at least arguably, could prevent a finding of no significant hazards consideration, even though the issue would ultimately be satisfactori?3 resolved by the issuance of the amendment. Accordingly, the Commission added to the list of examples considered likely to involve a significant hazards consideration a new example (vii). Id. See Section I(C)(1)(d) below. In promulgating the interim final rules, the Ccmmission noted that, when the legislation described before wa; being considered, the Senate Committee on Environment and Public Works commented upon the Commission's proposed rule before it reported S. 1207. Id. The Committee stated: The Committee recognizes that reasonable persons may differ en whether a license arenament involves a significant hazards ^ censideration. Therefore, the Committee expects the Commission to develop and promulgate standards that, to the maximum extent

19 - practicable, draw a clear distinction between license amendments that involve a significant hazards consideration and those that involve no significant hazards consideration. The Committtee anticipates, for example, that consistent with prior practice, the Commission's standards would not permit a "no significant hazards consideration" determination for license a,nendments to permit reracking of spent fuel pools. S. Rep. No. 97-113, 97th Cong., 1st Sess., at 15 (1981). The Commission agreed with the Committee "that reasonable persons may differ on whether a license amendment involves a significant hazards consideration" and it tried "to develop and promulgate standards that, to the maximum extent practicable, draw a clear distinction between license amendments that involve a significant hazards consideration and those that involve no significant hazards consideration." 48 FR, at 14868. (Reracking is discussed in Section I(C)(2)(b) and II(D).) The Commission stated its belief that the standards coupled with the examples used as guidelines help draw as clear a distinction as practicable. It decided not to include the examples in the text of the interim final rules in addition to the original standards, but, rather, to keep them as ouidelines under the standards for the ute of the Office of Nuclear Reactor Regulation. Id. In promulgating the interim final rules, the Conmission also noted to licensees that, when they consider license amendments outside the examples, it may need additional time for its determination on no significant hazards considerations, and that they should factor this information into their schedules for develop-ing and implementing such changes to facility design and operation. Id. _m

- The Commission stated its belief that the interim final rules thus went a long way toward meeting the intent of the legislation. Id. In this regard, it quoted the Conference Report, which stated: TheconfereesalsoexpecttheCommission,inpromulg)atingthe regulations required by the new subsection (2)(C)(i of section 189a. of the Atomic Energy Act, to establish standards that to the extent practicable draw a clear distinction between license amendments that involve a significant hazards consideration and those amendments that involve no such consideration. These standards should not require the NRC staff to prejudge the merits of the issues raised by a proposed license amendment. Rather, they should only require the staff to identify those issues and determine whether they involve significant health, safety or environmental considerations. These standards should be capable of being applied with ease and certainty, and should ensure that the NRC staff does not resolve doubtful or borderline cases with a finding of no significant hazards consideration. Conf. Rep. No. 97-884, 97th Cong., 2d Sess., at 37 (1982). The Commission stated that it had attempted to draft standards that are as useful as possible, and that it had tried to formulate examples that will help in the application of the standards. 48 FR, at 14868. It noted that the standards in the interim final rules were the product of a long deliber-ative process. (As will be recalled, standards were submitted by a petition for rulemaking in 1975 for the Commission's consideration.) The Commission then explained with respect to the interim final rules that the standards and examples were as clear and certain as the Commission cculd make them, and it repeated the Conference Report to the effect that the standards and examples "should ensure that the NRC staff does not resolve dcubtful or borderline cases with a finding of no significant hazards consideration." Id. The Commission repeats this admonishment to the staff in the response to comments in Section II(C) belcw.

+ With respect to the Conference Committee's statement, quoted above, that the " standards should not require the NRC staff to prejudge the merits of the issues raised by a proposed license amendment," the Commission recalled that it was its general practice to make a decision about whether to issue a notice before or after issuance of an amendment together with a decision about whether to provide a hearing before or after issuance of the amendment; thus, occasionally, the issue of prior versus post notice was seen by some as including a judgment on the merits of issuance of an amendment. Id. For instance, a commenter on the proposed rule suggested that application of the criteria with respect to prior notice in many instances will necessarily require the resolution of substantial factual questions which largely overlap the lid., at 14868-69. issues which bear on the merits of the license amendment. j The implication of the comment was that the Commission at the prior notice stage could lock itself into a decision on the merits. Conversely, the commenter stated that the staff, in using the no significant hazards consideration standards, was reluctant to give prior notice of amendments because its determination about the notice might be viewed as constituting a negative connotation on the merits. The Commission noted in response that, in any event, the legislation had made these comments moot by recuiring separation of the criteria used for providing or dispensing with public notice and comment on determinations about no significant hazards considerations from the standards used to make a determination about whether or not to have a prior hearing if one is recuested. Id., at 14869. The Commission explained that under the two interin final rules, I

. the Commission's criteria for public notice and comment had been separated from its standards on the determination about no significant hazards consid-erations. Id. It noted, in fact, that under the interim final rule involving the standards it would normally provide prior notice (for public comment and an opportunity for a hearing) for each operating license amendment request. And it stated its belief that use of these standards and examples would help it reach sound decisions about the issues of significant versus no significant hazards considerations and that their use would not prejudge the safety merits of a decision about whether to issue a license amendment. M. It explained that it held this belief because the standards and the examples were merely screening devices for a decision about whether to hold a hearing before as opposed to after an amendment is issued and could not be said to prejudge the Commission's final public health and safety decision to issue or deny the amendment request. M. As explained above, that decision has remained a separate one, based en separate public health and safety findings. b. Reracking of Spent Fuel Pools Before issuance of the two interim final rules, the Commission provided prior notice and opportenity for prior hearina on requests for i amendments involving reracking of spent fuel pools. When the interim final l l rule on standards was published, the Commission explained that it was not prepared to say that a reracking of a spent fuel storge pool will necessarily l ' wolve a significiant hazards consideration. It stated. hat, nevertheless, as shcwn by the legis.ative history of Public Law 97-415, specifically of section 12(a), the Congress was aware of the Commission's practice and that statements were made by members of both Houses, before passage of that

• law, that these members thought the practice would be continued.

Id. The report on the Senate side has been quoted above; the discussion in the House is found at 127 Cong. Record at H 8156, Nov. 5,1981. i The Commission decided not to include reracking in the list of examples that are considered likely to involve a significant hazard consideration, because a significant hazards consideration finding is a technical matter which has been assigned to the Commission. However, in view of the expressions of Congressional understanding, the Commission stated that it felt that the matter deserved further study. Accordingly, it instructed the staff to prepare a report on this matter; and it stated that, upon receipt and review of this report, it would revisit this part of the rule. Id. The report is described in detail in Section II(D) below. In the interim final rule on standards, the Commission stated that, while it is awaiting its staff's report, it would make findings case-by-case on the ouestion of no significant hazards consideration for each reracking ap-plication, giving full consideration to the teci.aical circumstances of the case, using the standards in s 50.92 of the rule. Id. It also stated that it was not its intent to make a no significant hazards consideration finding for reracking based on unproven technology. It added, however, that, where reracking technology has been well developed and demonstrated and where the Commission determines or a technical basis that reracking involves no significant hazards, the Cemnission should not be precluded frca making such a finding. And it noted that, if it determines that a particular

e reracking involves significant hazards considerations, it would provide an opportunity for a prior hearing. Id. The Commission also noted that, under section 134 of the Nuclear Waste Policy Act of 1982, an interested party may reouest a " hybrid" hearing in connection with reracking, and may participate in such a hearing, if one is held. It stated that it would publish in the near future a FEDERAL REGISTER notice describing this type of hearing with respect to expansions of spent fuel storage capacity and other matters concerning spent fuel. Id. That notice can be found at 50 FR 41662 (October 15,1985). c. Amendments Involving Irreversible Consequences There was some concern in Congress about anendments involving irreversible consequences. In promulgating the interim final rule on standards, the Commission mentioned this concern and quoted the Conference Report, which stated: The conferees intend that in determining whether e proposed license amendment involves no.significant hazards consideration, the Commission should be especially sensitive to the issue posed by license amendments that have irreversible consequences (such as those permitting an increase in the amount of effluents or radia-tion emitted frcm a facility or allowing a facility to operate for a period of time without full safety 3rotections). In those cases, issuing tne order in advance of a learing would, as a practical matter, foreclose the public's right to have its views considered. In addition, the licensing board would often be unable to order any substantial relief as a result of an after-the-fact hearing. Accordingly, the conferees intend the Commission be sensitive to those license amendments which involve such irreversible consequences. (Emphasis added.) Conf. Pop. No. 97-884, 97th Cong., 2d Sess., at 37-38 (1982). ~

' The Commission noted, 48 FR, at 14869, that this statement was explained in a colloquy between Senators Simpson and Domenici, as follows: Mr. DOMENICI. In the statement of managers, I direct attention to a paragraph in section 12, the so-called Sholly provision, wherein it is stated that in applying the authority which that provision grants the NRC should be especially sensitive to the issue posed by license amendments that have irreversible consequences." Is that paragraph in general, or specifically, the words " irreversible consequences" intended to impose restrictions on the Commission's use of that authority beyond the provisions of the statutory language? Can the Senator clarify that, please? Mr. SIMPSON. I shall. It is not the intention of the managers that the paragraph in general, nor the words " irreversible consequences," provide any restriction on the Commission's use of that authority beyond the statutory provision in section 189a. Under that provision, the only determination which the Commission must make is that its action does not involve a significant hazard. In that context, " irreversibility" is only one of the many considerations which we would expect the Ccmmission to consider. It is the determination of hazard which is important, not whether the action is irreversible. Clearly, there are many irreversible actions which would not pose a hazard. Thus where the Commission determines that no significant hazard is involved, no further consideration need be given to the irreversibility of that action. Mr. COMENICI. I thank the Senator for the clarificaticn. That is consistent with my readings of the language... 134 Cono. Rec. (Part II), at S. 13056 (daily ed. Oct. 1, 1982). The Commission then noted, 48 FR, at 14869, that the statement was further explained in a colloquy between Senators Mitchell and Hart, as follows: Mr. MITCHELL. The portion of the statement of managers discussing section 12 of the report, the so-called Sholly provision, stresses that in determining whether a proposed amendment to a facility operating license involves no significant hazards consideration, the Commisison "should be especially sensitive... to license amendments that have irreversible consequences." Is my understanding correct that the statement means the Commission should take special care in evaluating, for pcssible hazardous considerations, amendments that involve irreversible consequences? Mr. HART. The Senator's understanding is correct. As you know, this provision seeks to overrule the holding of the U.S.

" Court of Appeals for the District of Columbia in Sholly against Nuclear Regulatory Commission. That case involved the venting of radioactive krypton gas from the damaged Three Mile Island Unit 2 reactor -- an irreversible action. As in this case, once the Commission has approved a license amendment, and it has gone into effect, it could prove impossible to correct any oversights of fact or errors of judgment. Therefore, the Commission has an obligation, when assessing the health or safety implications of an amendment having irreversible consequences, to insure that only those amendments that clearly raise no signif-icant hazards issues will take effect prior to a public hearing. 134 Cong. Rec. (Part III), at S. 13292. In light of the Conference Report and colloquies it had quoted, the Commission stated that it would make sure "that only those amendments that clearly raise no significant hazards issues will take effect prior to a public hearing," 48 FR, at 14870, and that it would do this by providing in E 50.92 of the rule 3 that it would review proposed amendments with a view as to whether they involve irreversible consequences. I_d. In this regard, it made clear in example (iii) that an amendment which allows a plant to operate at full power during which one or more safety systems are not operable would be treated in the same way as other examples considered likely to involve a significant hazards consideration, in that it is likely te meet the criteria in 5 50.92 of the rule. Id. The Commission also made it clear that the examples did not cover all possible cases, were not necessarily representative of all possible concerns, and were set out simply as guidelines. Id.

• The Commission lef t the proposed rule intact to the extent that the interim final rules stated standards with respect to the meaning of "no significar.t hazards consideration." The standards in the interim final rules were identical to those in the proposed rule, though the attendant language in new 5 50.92 as well as in 5 50.58 was revised to make the determination easier to use and understand. To supplement the standards incorporated into the Ccmmission's regulations, the guidance embodied in the examples was referenced in the procedures of the Office of fluclear Reactor Regulation, ccpies of which were placed in the Commission's Public Docurent Room and sent to licensees, States, and interested persons.

It was the Commission's intention that any request for an amendment meet the standards in the regulations and that the examples simply provide supplementary guicance. d. Examples of Amendments that Are Ccnsiderea Likely to involve Significant Hazards Ccnsiderations Are Listec Below The statement of considerations for the interim final rules listed the fcilowing examples of amencments that the Commission considered likely to involve significant hazards consicerations. Ic, It explained that, unless the specific circumstances of a license amendacrt request, when measured against the standards in 5 30.92, lead to a contrary cenclusion, then, pursuant to the procedures in 5 50.91, a pecposed amendment to an operating license for a facility !icensed under 5 50.El(b) or 5 50.22 or for a testing facility will likely be found to involve significar.t hazards consicerations, if operation of the facility in acccreence with the propcsed amendFEnt involves cne or more ct the folicwing: (i) A significant relaxation of the criteric used ta establish safety limits. (

. (ii) A significant relaxaticn of the bases for limiting safety system settings or limiting conditions for operation. (iii) A significant relaxation in limiting conditions for operation not accompanied by ccmpensatory changes, conditions, or actions that maintain a commensurate level of safety (such as allowing a plant to operate at full power during a period in which one or more safety systems are not operable). (iv) Renewal of an operating license. (v) For a nuclear power plant, an ircrease in authorized maximum core power level. -(vi) A change to technical specifications or other NRC anoroval involving a significant unreviewed safety question. (vii) A change in plant operation designed to improve safety but which, due to other factors, in fact allcws plant operation with safety margins significantly reduced from those believed to have been present when the license was issued. M. e. Examples of Amendments that Are Considered Not Likely to Involve Significant Hazards Ccnsiderations Are Listed Below The statement of considerations for the interim final rules i listed the following examples of amendments the Commission censidered not likely to involve significant hazards considerations. 48 FR, at 14EC?. It explained that, unless the specific circumstances of a license amendment i request, when measured against the standards in 5 50.92, lead to a contrary conclusion then, pursuant to the procedures in 5 50.91, a proposed amendment l i

" to an operating license for a facility licensed under s 50.21(b) or 9 50.22 or for a testing facility will likely be found to involve no significant hazards considerations, if operation of the facility in accordance with the proposed amendment involves only one or more of the following: (1) A purely administrative change to technical specifications: for example, a change to achieve consistency throughcut the technical specifications, correction of an error, or a change in nomenclature. (ii) A change that constitutes an additional limitation, restriction, or control not presently included in the technical specifications: for exanple, a more stringent surveillance requirement. (iii) For a nuclear power reactor, a change resulting from a nuclear reactor core reloading, if no fuel assemblies significantly different from those found previously acceptable to the flRC for a previous core at the facility in question are involved. This assumes that no significant changes are made to the acceptance criteria for the technical specifications, that the analytical methods used to demonstrate conformance with the technical specifications and regulations are not significantly changed, and that NRC has previously found such methods acceptable. (iv) A relief granted upon demonstration of acceptable operation from an operating restriction that was imposed because acceptable operation was not yet demonstrated. This assures that the cperating restriction and the criteria to be applied to a request for relicf have been established in a prior review and that it is justified in a satisfactory way that the criteria have been met.

1 e (v) Upon satisfactory completion of construction in connection with an operating facility, a relief granted from an operating restriction that was imposed because the construction was not yet completed satisfactorily. This is intended to involve only restrictions where it is justified that ccnstruction has been ccmpleted satisfactorily. (vi) A change which either may result in some increase to the probability or consequences of a previously-analyzed accident or may reduce in some way a safety margin, but where the results of the change are clearly within all acceptable criteria with respect to the system or component specified in the Standard Peview Plan: for example, a change resulting from the application of a small refinement of a previously used calculational model or design method. (vii) A change to make a license conform to changes in the regulations, where the license change results in very minor changes to facility operations clearly in keeping with the regulations. (viii) A change to a license to reflect a minor adjustment in ownership shares among co-cwners already shown in the license. Id. II. RESPONSES TO C0F'MENTS ON INTERIM FINAL RULES The comments are described in somewhat greater detail in an attachment to SECY-XX. [The SECY number will be inserted after SECY has given this paper a number.]

. A. Clarity of Standards 1.1 Comments A group of commenters state that the three standards in 5 50.92(c) are unclear and argue that the examples in the statement of consider-ations -- which they believe are clearer than the standards -- should be made part of the rule; otherwise, they argue, the examples have no legal significance.

Response

The Ccmmission disagrees with the request. As explained before (see 48 FR 14864) in response to the comments on the proposed rule, the commenters correctly note that the examples have no binding legal significance. However, they do provide guidance to the staff, licensees and to the general public about the way the standards may be interpreted by the Commission. The Commission did consider ccmbining the standards and examples as a single set of criteria in the interim final rules. It decided against it because (i) the standards and examples had proved useful over time, (ii) the staff had used all three standards and most of the examples well before they were published in rule form, and (iii) the approach had proved adequate. Upon reconsideration, the Commission has decided to retain the standards as they were set cut in the interim final rule. See the response in Section II(D) belcw for a description of the standards.

1.2 Comment One commenter believes that the interim final rules " unduly" and " improperly" limit freedom cf speech and that minor changes in a plant can lead to severe health and safety consequences, such as an anticipated transient without scram (ATWS) as was the case in an incident with the Salem nuclear power plant. J

Response

It is unclear how the interim final rules might limit freedom of speech. It is clear, though, that some changes to a plant involve a review of whether or not previously unevaluated accidents having severe consequences are posed by the amendrent request. As explained above, before any amendment is issued, the Commission is required by the Atomic Energy Act (Act) to find that adequate protection is provided to protect the public health and safety. However, a determination that an amendment involves "no significant ha:ards considerations" includes a finding under the three standards that the change does not involve a significant increase in previously evaluated accident prchabilities or consequences, that it does not present a new type of accident not pre-viously evaluated, and that it does not involve a significant decrease in safety margins. Thus, the concern raised by the comment is related, if at all, only to amendments that involve significant hazards. 4 Procedures governing these types of amendments are unaffected by this rule change. See, e.o., section 182a. of the Act.

. 1.3 Comment One commenter suggests that the only standard that is needed is one that simply identifies those license amendments which make an accident possible.

Response

The standard suggested by the commenter is simple to state but impractical in practice. An amendment may involve a previously reviewed issue and not alter the conclusions reached concerninc accident probabilities or consequences. In such a case, the amendment may involve a system or component that is significant to an evaluation of & design basis accident and still not involve a significant hazards censideration. This suggestion changes the definition of "significant hazards consideraticns" and, thereby, changes the standards. The three standards given in the interim final rules together with the examples are directed to the issue of significa.it hazards. See, for instance the discussion in Section II(F)(1.3) belcw. 1.4 Comments One commenter requests that only " credible accident scenarios" should be considered in evaluating amendnent requests against the first J two standards. It also suggests that, with respect to the third standard (significant reduction in safety margins), the Commission should initially determine how large the existing safety margin is before deciding whether a reducticn is significant, because tne extent i a

- of the existing margin is clearly relevant to the Commission's determination. Another commenter, on the other hand, argues that it is inappropriate to specify a percentage change above which the change becomes significant. It notes that when the safety margin is three orders of magnitude, a ten percent reduction is clearly not signifi-cant, and that when the safety margin is fifteen percent, a comparable percentage reduction may be significant. It also suggests that the cumulative effects of successive changes to cne system must also be considered, and not merely the individual change which is being subjected to review at any given time.

Response

The first comment is similar to the original petition (see Section I(C)(1) above) which proposed standards limited to "najor credible reactor accidents." The Commission disagrees with it -- as it did previously -- because it allows too much room for argument about the meaning of " credible" in various accident scenarios and does not include accidents of a type different frem those previously evaluated which is one of the criteria for evaluating no significant hazards considerations. The second commenter suggests that, in assessing the degree of u reduction in margin in determining whether an amendment involves significant hazards considerations, the Commission should assess the cumulative effects (on margin) of successive changes to cne system, not

• merely the individual change in margin brought about by the amendment in question. The Commission believes that such a suggestion would be inconsistent with its staff's long-time practice in assessing the degree of reduction in margin, would be inconsistent with the thrust of the three standards on no significant hazards consideration, and would result in multiple counting of margin changes.

The standard states that the Commission is to determine whether the amendment will result in a significant reduction in margin. The intent is to compare the safety margin before the amendment to that which would exist after the amend-ment to determine whether that amendment would significantly reduce the margin. In applying this standard to determine whether a certain amendment involves significant hazards consideraticns, the intent is to assess just the reduction in margin from that amendment and not to assess all prior reductions in margin that resulted from prior amerdments because these have already been considered. Consequently, the Commission has not accepted this suggestion. 1.5 Comments One commenter points out that the three standards are virtually identical to the criteria in s 50.59 for determining whether unreviewed safety questions exist, and states that this similarity is appropriate. Another commenter makes the same point but notes an important difference in s 50.59, namely, that the word "significant" is absent in paragraphs (a)(2)(i) to (a)(2)(iii) of that section. It suggests that 5 50.59 should be amended to make it identical with 5 50.92(c).

V Response Sections 50.59 and 50.92 serve two different purposes. The criteria in 5 50.59(a)(2) are used to decide whether a proposed change, test, or experiment involves an "unreviewed safety ouestion." Section 50.59 is used to decide, in part, whether the licensee of an operating reactor may make changes to it or to the procedures as described in the safety analysis report, or whether it may conduct tests or experiments, not described in the safety analysis report, without prior Corrnission approval. The licensee may not make a change without such approval, if the charge involves an unreviewed safety question. To insert the term "significant" into the criteria would cbviously raise the threshold for making a determination. It would permit licensees to exercise far greater discretion in judging which changes require Commission review. Wide variations among licensees might be expected. If the Commission has not reviewed an issue, it should deliberate and decide whether its review is appropriate. Therefore. the ccmment has been rejected. The Commission is considering a rule on this subject, as discussed in Section II(K) belcw. 1.6 Comment Cne commenter generally agrees with the interim final rules but believes that the word "significant" should be defined, if cnly to forestall ccurt challenges by persons disagreeing with NPC. It suggests that NPC should create some sort of mechanism to resolve disputes between the staff, a State, or other parties, over whether or not an amendment recuest involves significant hazard ccnsiderations.

4 Desponse The advantage of the notice provisions of the interim final rules is that they prcvide an opportunity for coment c i proposed determina-tions. Based on a particular proposal in an amendment recuest, the Commissicn welcomes any and all persons' comments about the "signifi-cance" of the proposed action. Aside from using examples as guidelines, it believes that the term "significant" should not be defined in the abstract, but should be left to case-by-case resolution. B. Clarity of Examples Many commenters argue about the clarity of the varicus examples in the "likely" and "not likely" categories. Additionally, some want to change, to add to, or to subtract frcm the examples, for instance, noting that the issue of repairs is problematic. A complete set of comments (as summarized) is attached to SECY-X.Y-xx. [This r. umber will be inserted after SECY has given this paper a number.? Additionally, two commenters argue that the word "significant" in the examples should be deff ned so as not to leave " critical decisions to the unreviewable judgment of the staff." Finally, another commenter racuests ttiat 'he guidance embocied in both sets of examples shoJ1d not orh W referenced m de procedtres of the office of Puclear Reactee Regale ticn, but. that tt should also be formally transmitted to all 1Wcnceen iri tie fern of,t ger.eric letter, regulatory guida, er other wA fcc: ret.

Response

The examplu are mcm'er gLiteif us ana th,3 Comissf cn fes ts the

. I i i present examples are adequate. A list of exan.ples of all possible i situations would be interminably long, and it is not the Commission's intent to provide such a listing. However, to clarify the Comission's position on the repair or replacement of a major component or system important to safety, the following example has been added to the list of examples in Section I(C)(2)(e) above considered not likely to involve significant hazards considerations: 1 (fx) A repair or replacement of a major component or system important to safety, if the following conditions are met: (1) The repair or replacement process involves practices which l have been successfully carried at least once on similar components or systems elsewhere in the nuclear industry or y in other industries, and does not involve a sigrificant increase in the probability or consequences of an accident i previously evaluated or create the possibility of a new or different kind of accident from any accident previously evaluated; and (2) The repaired or replacement ccmponent or system does not 4 l result in a significant change in its safety function or a l significant reduction in any safety limit (or limiting condition of operation) associated with the component or system. j-f In this context, it once again bears repeating that the examples i do not cover all pcssible exac.ples and may not be representative cf all } possible concerns and problems. As problems,are resolved and as rew

39 - i information is developed, the staff may refine the examples and add new l ones, in keeping with the standards in this final rule. As to the second set of ccmments, see the response to comment I(A)(1.6) above. Finally, as noted above, the guidance in the examples has already been sent to all licensees and others. { C. Classification of Decisions Comments Two commenters argue that the standards pose complex questions that "reouire a level of analysis that goes far beyond the initial sorting of issues that Congress authorized." They repeat an argument made when l the standards were published as a proposed rule, camely, that "the use of these standards cannot help but require the NRC staff to make an initial determination, well before the formal hearing (if any) is held, of the health and safety merits of the proposed license amendment." And I they argue that Congress did not authorize NRC to make such a determina-tien in advance of the hearing on the merits. (A third commenter agrees with this argument). In sum, these commenters would like to see standards that simply allow for the sorting of issues, rather than, as l they argue, standards that allow the staff to determine issues which are " virtually the same" as those it determines when deciding whether or not to grant the license amendment. In this same vein, both comrenters argue that the standards contravene Congress' intent in that the Commission does not avoid resolving "dcubtful or borderline cases with a finding of no significant hazards censideration." l

• Response The Commission disagrees with the commenters, and the previous discussions above on this very point explain its reasoning.

It should also be noted that one reason that determinations on significant hazards considerations are divided into " proposed determinations" and " final determinations" is to help sort the issues initially. In this process of sorting, the Commission hereby charges the NRC staff with assuring that doubtful or borderline cases do not end up with a finding of no significant hazards consideration. As explained above, the decision about whether to issue an amendment is based on a separate health and safety determination, not on a determination about signifi-cant hazards considerations. D. Rerackings Comments A group of commenters state that rerackings should be considered amendments that pose significant hazards considerations, in light of the Commission's past practice and the understanding of Congress that the practice would be continued. Another group of commenters agree with the Commission's position, including the need for a staff report that would provide the basis for a technical judgment that an amendment reouest to expand a specific spent fuel pool may or may not pose a significant hazards consideration.

I al -

Response

In its decision to issue the two interin final rules, the Commission directed the staff to prepare a report which (1) reviews the agency's experience to date with respect to spent fuel pcol expansion reviews and (2) provides a technical judgment on the basis for which a spent fuel pool expansion amendment may or may not pose a significant hazards consideration. The staff contracted with Science Applications, Inc. (SAI) to perform an evaluation of whether increased storage of spent fuel could pose a significant hazards consideration in light of the guidance in the interim final rules. SAI provided a report entitled, " Review and Evaluation of i Spent Fuel Pool Expansion Potential Pazards Considerations." The Report Number is SAI-84-221-WA Rev. 1, dated July 29, 1983. On the basis of that report, the staff informed the Commission of the results of its study and included the SAI report. The staff paper is SECY-83-337, dated August 15, 1983. (Both the report and the study are available as indicatedabove.) The staff provided the following views to the Commission. (1) NRC experience to date with respect to spent fuel pool expansion reviews: As the Commission noted, the staff has been providing prior notice and oppcrtunity for prior hearing on amendments involvir.g expansion of spent fuel pool storage capactiy. The applications were prenoticed as a matter of discretion because of possible public interest. This was the basis cited for prenoticing these applications in statements to Congressional committees. Public comments or requests to intervere have been received on 24 of the 96 applications for amendments received to date to increase the storage capacity of onsite spent fuel pools. In most cases, the comments and requests to intervene have been resolved without actual hearings before an ASLB [ Atomic Safety and Licensing Scard]. w ---w+

I . Of the 96 applications, 31 have been a second or third application for the same pool (s). All of these applications have proposed reracking to increase the storage capacity - that is, replacing existing spent fuel storage racks with new racks that permit closer spacing of spent fuel assemblies. Two of the applications involved more than simply replacing the racks en the spent fuel pool floor. In one case, the capacity was increased by a method referred to as double-tiering. In this method, a rack is filled with aged spent fuel while sitting on the pool floor; once filled, the rack is raised and placed on top of another filled rack. Double-tiering was approved by the staff for Point Beach 1 and 2 by amendments issued on March 4, 1979. The other method that has been proposed to increase pool storage capacity is referred to as rod consolidation. Rod consolidation involves dismantling or cutting apart the fuel assembly and putting the individual fuel rcds closer together. Storage of only the fuel reds, without the spacers, end caps and other hardware, can increase storage capacity by 60 to 100 percent compared to storage of non-disassembled fuel. Rod consolidation - in conjunction with reracking - has been requested for only one plant - Maine Yankee. The staff's review of this appli-cation was completed a year ago, but the application is pending before an Atomic Safety and Licensing Board. We have approved 85 amendments involving spent fuel pool storage expansion and the rest are still being processed. A detailed table indicating the acency's experience to date with respect to spent fuel pool expansions is contained in the SAI report. As of now, every operating reactor except Big Rock Point has received approval for at least one reracking er had the closer spacing storage method approved with their initial license. The technical review of requests to increase spent fuel pool storage capacity involves evaluating the physical and mechanical processes which may create potential hazards such as criticality considerations, seismic and mechanical loading, pool cooling, long term corrosion and oxidation of fuel cladding, and probabilities and consequences of various postulated accidents and failures of decayed spent fuel. Alsc, the neutron poison and rack structural materials must be shown to be compatible with the pcol envirorment for a significant period of time due to the uncertainties as to how long the storage will actually be required on site.

Hcwever, potential safety hazards associated with spent fuel pool expansions are not as large as those associated with reactor operation because the basic purpose of the expansion is to allow longer term storage of aged spent fuel.

Since most plants are now on an 18 month refueling cyle and the NRC is processing a second expansion request application in many instances, the present expansion requests are to allow continued storage of spent fuel that has decayed over a decade along with the rarmal discharge of relatively new spent fuel for which the pool was originally designed. Typically a PWR will replace about are third of its core at each refueling and a typical BWR will replace abcut one

• fourth of its core at each refueling. After a year of storage, about 99% of the initial radioactivity has decayed.

(2) Technical judgement on the basis which a spent fuel pool expansion amendcent may or may not pose a significant hazards consideration: The technical evaluation of whether or not an increased spent fuel pcol storage capacity involves potential hazards consideration is centered on the Commission's three standards in the interim final rule. First, does increasing the spent fuel pool capacity significantly increase the probability or consequences of accidents previously evaluated? As discussed in the SAI report, reracking to allow closer spacing of fuel assemblies does not significantly increase the probability or consequences of accidents previously analyzed. However, the rod consolidation methed may increase the probablity of a fuel drop accident by a factor of two because of the increase in the number of assembly lifts and involves handling of highly radioactive fuel assembly components. Double tiering of racks requires an increased frequency in lifting heavy loads over the spent fuel pool which would also increase the probability of an accident. Second, does increasing the spent fuel storage capacity create the possibility of a new or different kind of accident from any accident previously analyzed? The staff, as well as SAI, have not identified any new categories or types of accidents as a result of reracking to allow closer spacing for the fuel assemblies. Double tiering and rod consolidation, however, do present new accident scenarios which may not be bounded by previous accident analysis for a given pool. In all reracking reviews completed to date, all credible accidents postulated have been found to be conservatively bounded by the valuations cited in the safety evaluation reports supporting each amendment. Third, does increasing the spent fuel pool storage capacity significantly reduce a margin of safety? Neither the staff nor SAI have identified significant reductions in safety margins due to increasing the storage capacity of spent fuel pools. The expansion may result in a minor increase in pool temperatures by a few degrees, but this heat load increase is generally well within the design limitations of the installed cooling systems. In scme cases it may be necessary to increase the heat removal capacity by relatively minor changes in the cooling system, i.e., by increasinc a pump capacity. But in all cases, the temperature of the pool will remain below design values. The small increase in the total amount of fission products in the pool is not a significant factor in accident considerations. The increased storage capacity may

24 result in an increase in the pool reactivity as measured by the neutron multiplication factor (Keff). However after extensive study, the staff determined in 1976 that as long as the maximum neutron multiplication facter was less than or equal to 0.95, then any change in the pool reactivity would not significantly reduce a margin of safety regardless of the storage capacity of the pool. The technicques utilized to calculate Keff have been bench-marked against experimental data and are considered very reliable. In the interim final rule, the Comission stated that it was not the intent to make a no significant hazards consideration finding based on unproven technology. Peracking to allow a closer spacing between fuel assemblies can be done by proven technologies. The double tiering method of expansien can also be done by proven technology. Rod consolidation, however, involves new technology and increased handling of highly radioacive components of fuel assemblies. In sumary, both rod consolidation and dcuble tiering represent potential safety hazards considerations. Rod consolidation involves relatively new technology and double tiering may significantly increase the probability of accidents previously analyzed. Replacing existing racks with a design which allows closer spacing between stored spent fuel assemblies or placing additional racks of the original design on the pool floor if space permits (a subset of reracking) is considered not likely to involve significant hazards considerations if several conditions are met. First, no new technology or unproven technology is utilized in either the construction process or in the analytical techniques necessary to justify the expansion. Second, the Keff of the pool is maintained less than or equal to 0.95. A Keff of greater than 0.95 may be justifiable for a particular application but it would go beyond the presently accepted staff criteria and would potentially be a significant hazards consideration. Re-racking to allow closer spacing or the placing of additional racks of the original design on the pool floor, which satisfies the two preceding criteria, would be similar to example (iii) en nuclear reactor core reloading under examples of amendments that are not considered likely to involve significant hazards censid-erations. The staff concluded in its technical judgement that a request to expand the storage capacity of a spent fuel pool which satisfies the following is considered not likely to involve significant hazards considerations:

• a (1) The storage expansion method consists of either replacing existing racks with a design which allows closer spacing between stored spent fuel assemblies or placing additional racks of the original design on the pool floor if space permits, (2) The storage expansion method does not involve rod consolidation or double tiering, (3) The Keff of the pool is maintained less than or equal to 0.95, and (4) No new technology cr unproven technology is utilized in either the construction process or the analytical techniques necessary to j

justify the expansion. This judgement was based on the staff's review of 96 applications and the result of the SAI study, which indicates that if a spent fuel pool expansion request satisfies the above criteria then it meets the three standards in the interim final rules in that it: (1) Does not involve a significant increase in the probability cr consquences of an accident previously evaluated; or (2) Does not create the possibility of a new or different kind of accident from any accident previously evaluated; or (3) Does not involve a significant reduction in a margin of sa fety. Finally, the staff stated to the Commission that: Applications which do not fall into the above category must be evaluated on a case-by-case basis. There are secondary issues which may be associated with a spent fuel pool expansion, but they must be considered on their own technical merit as a separate issue. As an example, transferring fuel to another site for storage or transferring fuel in a cask to another on-l site spent fuel pool, if requested, must both be evaluated on a separate basis as to whether or not they involve significant hazards considerations.

. The Commission has accepted its staff's judgment, discussed above. It has added the following new example (x) to the list of examples in l l the "not likely" category in Section I(C)(2)(e) for reracking requests satisfying the four criteria noted above (Reracking requests that do not meet these criteria will be evaluated case-by-case.): (x) An expansion of the storage capacity of a spent fuel pool when l all of the following are satisfied: (1) The storage expansion method consists of either replacing 4 existing racks with a design which allcws closer spacing between stored spent fuel assemblies or placing additional racks of the original design on the pool floor if space permits; (2) The storage expansion methods does not involve rod consolidation or double tiering; (3) The Keff of the pool is maintained less than or equal to 0.95; and (4) No new technology or unproven techrology is utilized in either the construction process or the analytical techniaues necessary to justify the expansion. E. Irreversible Consequences Comments One commenter notes that license amendments involving irreversible consequences (such as those permitting an increase in the amount of i

i effluents or radiation emitted frcm a facility or allowing a facility to operate for a period of time without full safety protections) require i prior hearings so as not to foreclose the public's right to have its views considered. This commenter is especially concerned about the i TMI-2 clean up and about the TMI-I steam generator tube repairs. It 1 argues that 6 50.92(b) (which requires Comission " sensitivity" to this issue and which is buffered by the term "significant") contravenes Congress' intent. Another commenter requests that a State and the public should have a say about any amendment request involving an environmental impact I before NRC issues an amendment. It wants more frum the Commission than the statement in the interim final rules that the "Comissi'on will be particularly sensitive" to such impacts. Another commenter requests that the same argument that applies to " stretch power" situations should apply to situaticns which involve i " irreversible consequences", such as increase in the amount of effluents i or radiation emitted from a facility. It argues that, if the discharge or emission level evaluated in the Safety Analysis Report, the Firal Environmental Statement or generically by rulemaking (i.e., Part 50, t Appendix !) would equal or exceed the proposed level of emissions, any l permanent increase up to that level should not be considered likely to ~ involve significant hazards considerations, and that any temporary i increase within generally recognized radiation protection standards, i j such as those in 10 CFR Part 20, should be treated similarly.

Moreover, I

it requests that these situations should be included as examples in the j "not likely" category.

On the other hand, another commenter argues that license amendments involving temporary waiving of radiation release limitations (so that airborne radioactive waste can be released at a rate in excess of that which is allowed to be released -- as was an issue in the Sholly decision), should involve significant hazards considerations and, consequently, a prior hearing.

Response

The Commission disagrees with the comment that 9 50.9N b) contravenes Congress' intent. That section is taken almost verbatim from the Conference Report (see Section IIC)(2)(c) in this preamble) and is entirely consistent with the colloquy of the Senators quoted in that section. A State and the public can have a say about any amendment request that involves an environmental impact before itRC issues an amendment. The procedures described before have been set up so that at the time of flPC's proposed determination (1) the State within which the facility is located is consulted, (2) the public can comment on the determination, and (3) an interested party can request a hearing. Section 50.92(b) simply buttresses the point that the Comnission will te especially sensitive to the types of impacts described by the commenters which involve irreversible consecuences. The Commission has not accepted the last two cormenters' suggestions. The legislation clearly specified that the Commission shculd be sensitive to the kinds of circumstances cutlined by the 1

. =. - O i commenters. The interim final rule repeats this language and thus insures that the Commission's staff will evaluate each case with respect to its own intrinsic circumstances. F. Emergency Situations 1.1 Comments One commenter requests that the term "emercency" be deleted from the rule because it could be confused with a different use of this term in a final rule issued on April 1, 1983 (48 FR 13966) involving the applicability of license conditions and technical specifications in an emergency. See 95 50.54(x) and 50.72(c). It suggests that the phrase " warranting expedited treatment" or some similar phrase could be used instead of the term " emergency." Two other commenters request that i 50.91(a)(5) (involving emergency situations) be clarified to make clear that an emergency situation can exist whenever it is necessary that a plant not in operation return to operation or that a derated plant operate at a higher level of power generation. One of the commenters argues that unnecessary economic injury or impact on a generating system should also be classified as an energency situation. It recommends that 6 50.91(a)(5) be amended by inserting, after the words "derating or shutdcwn of the nuclear power plant" the words " including any preven-tion of either resumption of operation or increase in power output." The other corr. enter concurs with these words and would add the words "up to its licensed power level" after " power output."

- Another comenter suggests that an emergency situation should also exist where a shutdovn plant could be prevented from starting up because the Comission had failed to act in a timely way. Several comenters agree with these corrments, arguing that emergency situations should (1) be broadly defined, (2) be available when a plant is shutdown and cannot startup without a license amendment, and (3) include situations where an amendment is reeded (as is the case with exigent circumstances) to improve public health and safety. Respcnse The Comission understands that the term " emergency" is used in different ways in various sections of its regulaticns. However, the legislationanditslegislativehistory,quotedaboveinSection!(A), are very clear on the use of that term and specifically do use that term; consequently, the term must be used as a touchstone for the Comission's regulations. The Cemission agrees with the comenters about the need to breaden the definition of " emergency situations." The Conference Report quoted above described " emergency situations" as encompassing those cases in which immediate action is necessary to prevent the shutdown or derating of a plant. There may be situations where the need to prevent shutdown or derating can be equivalent in terms of impact to the reed to startup or to go to a higher power level. The Commission believes that expanding the definition of "errergency Situation" to include these situations is not inconsistent with Congress' intent. It therefore has decidea to adopt the thrust of

these comments and has changed i 50.91(a)(5) accordingly. See also response to comment in Section II(F)(1.3) below. 1.2 Comment One commenter requests that the rule specify what is meant by a " timely application" in i 50.91(a)(5). That paragraph states that licensees should apply for license amendments in a " timely fashion" and that the Ccmission will decline to dispense with notice and comment procedures, "if it determines that the licensee has failed to make a timely application for the amendment in order to create the emergency and to take advantage of the emergency provision."

Response

The provision cited by the commenter is clear enough. It is extracted almost verbatim from the Conference Report mentioned above. In it the conferees indicated that they wanted to ensure that a " licensee should not be able to take advantage of an errergency itself" and that, therefore, the Cormission's regulations "should insure that the emergency situation" exception under section 12 of the conference j agrecrent "will not apply if the licensee has failed to apply for the I license amendment in a timely fashion." The Conference Peport also explains that: To prevent abuses of this provision, the conferees expect the Commission to independently assess the licensee's reasons for failure to (11e an application sufficiently in advance of the threatened closure or derating of the facility. 1 e

- 1.3 Comment One commenter requests that NRC explain how it will precess an amendment request that involves both an emergency situation and a i significant hazards consideration. It suggests that, in this unlikely i case, the Commission might issue an imitediately effective order under 10 C.F.R. 2.204. t t

Response

Since there is a possibility for confusion over the meaning of " emergency", 5 50.91(a)(4) has been rrodified and a new i 50.91(a)(7) l has been added to clarify the problem. With the "Sholly" regulations now in place, there are now two possible types of emergencies: (a) a " safety-related emergency" in which very prompt NRC action may be necessary to protect the public Fealth and safety; and l l (b) the " emergency" referred to in the "Sholly" legislation in which t the prompt issuance of a license amendtrent is required in order, [ l for instance, to avoid a shutdown. This type of an emergency may j differ from the " safety-related emergency" in that, here for example, prompt action is needed for continued full-power operation I but not necessarily to protect the pubile health and safety (health l and safety, arguably, is protected by the shutdown, which would j cccur if the "energency" license amendment were not issued). This [ " emergency" is more in the nature of an economic emergency for the licensee. Two fundamentally different approaches to amending a license arise from these two different types of energencies: i i

53 - (a) For a safety-related emergency, the Administrative Procedure Act and the Comission's own regulations (10 CFR I 2.204) authorize (if not compel) the issuance of an immediately effective order amending a license without regard to whether the amendment involves significant hazards considerations and without the need to make a finding on no significant hazards considerations or to provide a prior Sholly-type of notice. (b) For an " emergency" where a prompt amendment is reouired to prevent the shutdcwn but not to protect the public health and safety, an immediately effective license amendment, without prior notice, may be issued only if the amendment involves no significant hazards j considerations. l f Consequently: (a) Where an immediately effective license amendment is needed to l protect the public health and safety, the Commission can issue an immediately effective order amending a license without regard to l whether the amendment involves significant hazards censideraticns f f and without regard to prior notice and prior Fearing; (b) Where an immediately effective license amendment is needed, fer t instance, only to prevent the shutdown but not to protect public health and safety, the Commissicn may issue such an immediately effective amendment only if the amendment involves no significant hazards considerations. If the amendment dces involve a signiff-cant hazards consideration, the Comission is required by law to f provide 30 days notice and an opportunity for prior hearing. l i

I ' G. Exfgent Circumstances 1.1 Coments j ( One comenter suggests that the two examples of exigent circum-stances are unnecessarily narrow because both involve potentially lost opportunities to implement improvements in safety during a plant outage. The comenter recommends that the Comission make clear that these examples were not treant to be limiting and that exigent circum-i stances can occur whenever a proposed amendment involves no significant l hazards consideration and the licersee can demonstrate that avoiding I delay in issuance will provide a significant safety, environmental, reliability, economic, or other benefit. Another cc m enter recuests that exigent circunstances include instances (1) where a licensee's plant is shutdown and the licensee needs an amendment to startup and (2) involving significant hazards considerations. The comenter argues that both such cases entail delay and a significant financial burden on licensees.

Response

As explained above, the examples were meant merely as guidance and were reant to cover circumstances such as that where a net safety benefit might be lost if an arrendment were not issued in a timely manner. The Comission agrees with the first commenter that the examples should be redd as also covering those circumstarces where there is a net increase in safety or reliability or a significant envirorm(ntal benefit.

l I As to the first poirt of the second comment, the Commission I believes that there may be " exigent circumstances" which may involve start-up of a shutdown plant. Therefore, in keeping with the thrust of the definition of " emergency situations," it will new consider the f j " exigent circumstances" in 5 50.91(a)(6) to include 'startaup" and " increase in power levels". ThediscussioninSectionIU(A) responds to the comenter's second point. l 1.2 Coments j t One commenter states that the public notice procedures for exigert l circumstances should be no different from those for emergency situations. Two commenters oppose the use of press releases or display advertising i in local media, arguing that such notices would unnece:;sarily elevate the importance of amendment requests. i Another commenter recommends that, if NPC believes that it must issue a press release, it should consult with the licensee on a pecposed { t release before it acts. It also requests that NRC inform the licensee I of the State's and the public's cements and that it prcirptly forward to the licensee copies of all correspondence. l Two commenters also oppose the toll-free " hot-line" in exigent { circumstances, arguing that the concept implies imminent danger or [ severe safety concerns which normally will not be present. One of these comenters reouests, instead, the use of mailgrams or overnight express, j It also recomends, if a hotline systen is implemented, that the system should be confined to extraordinary amendments involving unioue circum-stances. To ensure the accuracy of transcription of the cements i received, it suggests that tha cements should be recorded and retained

i

l i

i I to ensure that a verbatim transcript could be produced if needed. The other ccmmenter requests that copies of the recorded comments should be I sent to the licensee. l Another commenter suggests that the rule specify the geographical area to be covered by a notice to the media. I 1 3

Response

l By definition, in emergency situations NRC does not have time to issue a notice; in exigent circumstances, the Comission has to act swiftly but has tir:e to issue some type of notice; in most instances it j-will be a FEDERAL REGISTER notice reouesting public comment within less than 30 days, but not less than two weeks. The Commission, of course, 1 e i needs the cooperation of a licensee to make the system work and to act ) j quickly. If NRC cannot issue a FEDERAL REGISTER notice for at least ) two weeks public comment in exigent circumstances, then, with the help I i of the licensee, it will issue some type of a media notice reouesting public comment within a reasonable time. It will consult with the i 1 licensee on a proposed release and the geographical area of its coverage l t l and, as necessary and appropriate, may inform it of the State's and the I public's comments. If a system of mailgrams or overnight express is I l workable, it will use that as opposed to a hotline; however, it will l i not rule out the use of a hotline. And, if it does use a hotline, it l may tape the conversations and may transcrib0 them, as necessary and j appropriate, and may inform the licensee of these, t i l 1 I i f 1

i i l i 3 i j 1.3 Coment One comenter notes that exigent circumstances can arise after the publication of a Comission notice offering a normal public coment period on a proposed determination. It requests that in these circum-r q stances the final rule should make clear that an expedited schedule I would be established for receiving public ccu ents and issuing the j I amendment. I i i i t l Pesponse l l The Comission agrees that emergency situations and exigent 4 l circumstances could arise during the normal coment period. If this .s ] were to occur, as noted in the notices it now issues, it will expedite, j 4 I to the extent it can, the processing of the amendment request, if the [ j t j request and the exigency or emergency are connected. As explained i 1 j above, the Comission may also, of course, issue an appropriate order under 10 C.F.R. Part 2, if there is an iminent danger to the public I j health or safety. i 3 i H. Retroactivity Comments l i One comenter requests (and another would agree) that i 4 $ 2.105(a)(4)(f) -- which explains how flRC may make an amendment j j imediately effective -- be clarified to make clear that f PC will not i provide notices of proposed action on amendment requests it received before May 6,19E3 (the effective dato of the intoriam final rule) that l 1 i l l 4

58 - I do not involve significant hazards considerations. It suggests that the Commission should publish instead notices of issuance of amendments pursuant to 6 2.106. Another commenter suggests expedited treatment for amendment requests received before May 6, 1983, when these relate to refueling outages scheduled by Itcensees before that date. l 9esponse The Cnmmission has noticed amendment requests it received l before May 6,1983. together with its proposed determinations. I. Notice and Consultation Procedures l 1.1 Comments One commenter proposes the following changes (endorsed by another l commenter) to the notice procedures to shorten the ccement period and to clarify the method of publication: Poutine, ninor amendrients should be published in the monthly Federal Register compilation only and a ten-day coment period accorded. There shculd be no individual Federal Register notice in routine cases. An individual notice should be published in the Federal Register for requests that are not routine, such as for instance, steam generator modifications or reracking. These requests could also be published in the monthly compilation, but the comment period should run from the date of the individual notice. As is the case for routine anendments, we prepose a i ten-day ccmment period. In exigent circumstances, which could enccmpass either routine or non-routine requests. We propose that notice be published individually in the Federal Register and that a reascnable comment period be accorded taking into account the facts of the particular case, c -., -

i i ]., e i j i j The conn. enter argues that expedited notice procedures would satisfy the statutory requirements, would eliminate a large scurce of delay, and would be recogni:ed by the courts, since expedited procedures are the appropriate solution when notice and hearing are j statutorily required but time is of the essence. i Two commenters are also concerned about the potential for delay I j in the new notice procedures. One of these requests that the rule I indicate the normal time NRC needs to process rcuttne and emergency l j applications, i j Pesponse The Comrdssion left itself the options in the interim final rules i to publish individual or periodic FEDERAL REGISTER notices, or a l combination of both. It stated in the interim final rules that the j periodic notices would be published at least every 30 days, leaving I itself the option of more frequent publication if appropriate. Though it agrees that minor routine amendments could be published in its { periodic notice and that non routine amendments could be published in j individual notices, it does not want to establish by rule any particular l 1 mode of publication. i The Commission does not agree that a 10-day comment period should [ l be the 1erm. It believes that its system, which normally allows for l 30 days public ccmment, is more in keeping with the intent of the f legislation, which previded for a reasonable opportunity for pubtf e i I .I I i

1 i ' i l comment, except in emergency situations where thee is no time provided for public correent and in exigent circumstances where there is less than 30 days provided. Section50.91(a)(6)hasbeenclarifiedtoindicatethatthecomment period on any notice begins on the date of that notice. If there is an i initial individual notice and a later periodic notice. the corrent period begins with the first notice. f Finally, the Commission does not agree that it should prescribe its normal tirne for processing routine and emergency requests. Its staff will process all requests as quickly as it can. The Comission hereby directs the staff to handle requests promptly and efficiently to insure that the staff is not the cause for a licensee's emergency or exigency l reouest. 1.2 Cerr: rents One comenter argues that the consultation procedures created by the interim final rules do not meet Congress' intent because they leave [ i it up to a State to decide whether it wants to consult based on the i licensee's amendment request and NRC's proposed determinaticn. It seeks " formal, active consultation" (before NRC makes its proposed determina-tion and publishes a FEDERAL REGISTER notice) through the " scheduling i of formal discussions between the State and the NRC on the proposed determinatien, with the foregoing of such only upon written woher of I the State." Additionally, it seeks incorporation of the State's corrents in the FEDERAL REGISTEp rotice together with an explanatfor, of bcw NRC resolved these. Finally, it requests that MC always telephone

l' ! l State officials before issuing an amendment, rather than merely l " attempting" to telephone them as, it states, the rule provides. Another commenter is satisfied with the notice and consultation procedures, stating that "the regulations give the State no mere authority in regulating the operation of the reactor then it had in the past, but they serve notice on the reactor operator that the State is an interested party in all nuclear operations within the State." Pesponse The Comnission believes that its State consultation procedures are well within Congress' intent. These procedures allow a State to take on as active a role as it wishes. If it wants to consult with NRC on every amendment request, it may do so. On the other hard, if it wants to conserve its resources and consult only en amendment requests it l considers important, it may do that as well. The system of formal l consultation envisaged by the first commenter is certrary to the intent ofCongress,asdiscussedinSecticn!!!(B)belcw. Finally, I 50.91(b)(3) of the interim final rule clearly states that before NRC issues the amendment, it will telephone the appointed State official in which the licensee's facility is located for the l purpose of consultation. The Cornission believes that this last step is needed to enfure that the Stato indeed is aware of the amendrent l request and does not wish to be consuited about it. The rule has been i changed in minor ways to clarify these points.

. (t. J. flotices in Erergency Situations or Exigent Circumstances Comen_t One commenter reccrrmends that the Comission clarify that it intends to issue a " post notice" under i 2.106 rather than a " prior notice" under i 2.105 when it has determined that there is an emergency situation or exigent circumstances and that an arendment involves no significant hazards consideration. The cornrenter suggests that, in 5 2.105(a)(4)(ii) the words "it will provide notice of opportunity for a hearing pursuant to i 2.106" should be deleted and the words "instead of pubitshing a notice of proposed action pursuant to this section, it will publish a notice of issuance pursuant to 9 2.106" should bo l substituted. l hsponse The Comission has not accepted the latter part of the commenter's

request, in an crorgency situation involving no significant hazards consideration, the Commission will publish a notice of issuance of the amendment under i 2.106.

The licensee or any ether person with the requisite interest may request a hearing pursuant to this notice.

Thus, implicit in 5 2.106 is the notion that a notice of issuance provides notice of opportunity for a hearing.

The words in 12.lf'5 rrake this notion explicit. Finally, contrery to the contrenter's assortion, the Comissf or dces provide prior rather than post notice in exfgent circumstor(es.

I K. procedures to Reduce the Number of Amendments Comment One corsnenter suggests that many of the routine matters which require amendments shculd not be subject to the license arrendtrent process. It argues that greater use should be made of 5 50.59 l r (involvingchanges,testsandexperimentswithoutpriorCometissien l approval, where these do not involve an unroviewed safety cuestion or l a technical specification incorporated in a license) for changes involving routine matters by nnt placing such changes intn the technical specifications and thereby avoiding the need to issue itcense amend-ments. Two cornrenters also gererally endcrse the Ccr. mission's proposed rule (publishedonMarch 30, 1982 in 47 FR 13369) that would reduce i the volume of technical specifications now part of an operating license, j thereby reducing the need to request license amendtrents, pespense The staff is working on a firal version of the proposed rule noted above. The prepnsed rule would intrcduce a two tier system of Itcense specifications: technical specifications and supplerectal specifications. Only the forner would be rade directly a part of the operating license and would require prior NRC approval ud an amendrent; I l supplenental specificatient would be made a condition of the license, as is the Final Safety Analysis Peport, but could be changed by the l l licensee within certain beunds and under prescribed conditiens using a l i process sinflar to chances made urder 150.59. i i i l

. L. License Fees Ccement One commenter argues that licensees should not be assessed additional fees to finance activities involving determinaticos about no significant hazards considerations. It states that in a recent proposed rule (47 FR 52454, November 22,1902) NRC preposed to amend the existing regulations governing payment of fees associated with, among other things, the processing of license amendment requests. (The final rule was published on May 21, 1984 in 49 FR 21293.) The key element of the proposed changes related to assessment of fees based upon actual NRC resources expended, rather than upon fixed fee for various classes of amendtren ts. The commenter goes on to note tFat, if the Part 170 changes are issued as proposed, af ter Fay 6,1983--the effective date of the interim final rules--NRC resources expended as part of the notice and State consultation process wculd be financed t'y the requesting licensee. It states that licensees would not be the identifiable recipients of benefits resulting from this more involved process; as such, licensees should not be assessed fees for any expenses resultirp from the public notice, State consultation, and other consequential or follow-up activi-ties which may result. And it argues that the Icgislative history behind Pubite Law 97-415 trakes it clear that Itcensees are not the prime beneficiaries of this new license amendment process, hspon'it The Conmissier believes that licensees do benefit t' rom the two ir.terin final rules and will benefit frcm this fir,a1 rule. At a minimum. l

l . nomally their license amendment requests will be granted before a hearing is held, if a final determination of no significant hazards consideration has been made and a hearing is requested. This can eliminate risk and delay. More importantly, the public's and the State's roles in the amendment process are clarified, which indirectly but identifiably benefits licensees. And, finally, the licensing process is stabilized, a great benefit to licensees. M. Regionalization Comment One ccmmenter recommends that, before NRC's headquarters transfers authority to the Regions to process " routine" amendments, a clear understanding be reached among the licensee, the Region and NRC's headquarters about the ground rules for what would constitute " routine" versus " complex" amendments and for the ways the amendments would be processed from the times they are requested, through notice and State j consultation, to their grant or denial.

Response

The Ccmmission agrees. For the time being, though, and perhaps l in the future, NRC's headquarters will retain authority to process amendment requests with respect to determinations about no significant ha:ards considerations. See, generally, NRC Authorization Act for Fiscal Years 1984 and 1985 (Pub. L. 98-553, October 1984).

- decided to combir.e the notices for public conar,ent on ro significant hazaros considerations with the notices for oppcrtunity for a hearing, thereby, normally providing both prior notice of opportunity for a hearing and prior netice for public comtrant of requests it receives to amend cperating licenses of facilities described in 150.21(b) or i 50.22 or of testing facilities. The Comissier intends to continue this practice, as fully cescribed belcw. With respect to an opportunity for a hearing, the Comission amended 5 2.105 to specify that it could norr. ally issue in the FEDERAL REGISTER at least every 30 days, and perhaps more frecuently, a list of " notices of proposed actions" on requests for amendments to operating licenses. These periodic notices -- presently issued biweekly -- new provide an opportunity to request a hearing within thirty days. The Ccamission also retained the option of issuing indi-vidual notices, as it sees fit. In the fir al rule, the Comission's proce-dures, see % 2.105(d)(2), provide that a person whose interest may be affected oy the proceeding may file a petition for leave to intervene and request a hearing. If the staff does not receive any request for a bearing on an an.endment within the notice period, it takes the proposed action when it has completed its review and made the necessary findings. If it receives such a request, it acts under new 1 50.91, which describes the precedures and criteria the Ccmission uses to act on applications for amendnents to operatirg licerses. To imolen ent the main theme of the legislation, under new 150.91 the Cctrmissicr cen:binec a notice of cppcrtunity for a hearing with a notice 1 for public conment on any proposec determination on no significant hazards

- E6 - N. Exemption Recuests Comment One comnenter is concerned that NRC might autcmatically consider exemption requests as license amendments. It believes that exemption requests need not autcmatically be considered license amendments, even though NRC has occasionally elected to notice such requests in the FEDERAL REGISTER or has assigned license amendment numbers to the issuing documents.

Response

The Commission does not automatically consider exemption requests as license atendments. Most are not amendments. If an exemption to the regulations for a particular facility also entails or requires an amendment to the facility license, the amencment would be processed as a license anendment under the "Sholly" regulations and the requirements of the regulations could not be avoided simply because an exemption is also involved. III. PRESENT PRACTICE, AND MODIFICATIONS UNDER THE FINAL RULE A. Notice for Public Comment and for Opportunity for a Hearinc In the two interim final rules, the Commission decided to adopt the notice procedures and criteria contemplated by the legislaticn with respect to determinations about no significant hazards consideration. In addition it

- consideration. Additionally, new 9 50.91 permits the Commission to make an amendment immediately effective in advance of the holding and ccmpletion of any required hearing where it has determined that no significant hazards con-sideration is involved. Thus, 5 50.91 builds upon amended 5 2.105, providing details for the system of FEDERAL REGISTER rotices. For instance, exceptions are made for emergency situations, where no prior notices (for opportunity for a hea:ing and for public comment) might be issued, assuming no significant hazards considerations are involved. In sum, this system added a " notice for public comment" under Q 50.91 to the former system of " notice of proposed action" under 5 2.105 and " notice of issuance" under 6 2.1C6. Under this new system, the Commission requires an applicant requesting an amendment to its operating license (1) to provide its careful appraisal on the issue of significant hazards, using the standards in 9 50.92 (and whatever exampl".s are applicable), and (2) if it involves the energency or exigency provisions, to address the features on which the Comission must make its findings. (Both points will be discussed later.) The staff has frecuently stated to applicants that the Commission wants a " reasoned analysis" frcm an applicant. An insufficient or sloppy appraisal will be returned to the applicant with a request to do a more careful analysis. Where an applica-tion has been returned for such reasons, i.e., because of the applicant's negligence, the applicant cannot use the exigency or emergency provisions of the rule for any subsequent application for the same amendment. When the staff receives the amendment request, as described belcw, it 1 decides whether there is an emergency situation or exigent circumstar.ces.

- If there is no emergency, it makes a preliminary decision, called a " proposed determination," about whether the amendment involves no significant hazards considerations -- normally, this is done before completion of the safety analysis (also called safety evaluation). In the proposed determination, it might accept the applicant's appraisal in whole or in part or it might reject the applicant's appraisal but, nonetheless, reach the same ccnclusion. With respect to the proposed determination, the staff views the term "considera-tions" in the dictionary sense, that is, as a sorting of factors as to which it has to make that determination. In this sorting, the three standards are used as benchmarks and, if applicable, the examples may be used as guidelines. Amendment requests that were received before May 6,1983 (the effective date of the interim final rules), have been processed in the same way, except that licensees have not been required to provide their appraisals. At this stage, if the staff decides that no significant hazards consideration is involved, it can issue an individual FEDERAL REGISTER notice or list this amendment in its periodic publication in the FEDERAL REGISTER. This periodic publication lists not only amendment reauests received for which the Commission is publishing notice under s 2.105, it also provides a reasonable oppertunity for public comment by listing this ard all amendment requests received since the last such periodic notice, and, like an individual notice, (a) providing a description of the amendment and of the facility involved, (b) noting the propcsed no significant hazards consideration determination, l

. (c) soliciting public comment on the determinations which have not been previously noticed, and (d) providing for a 30-day comment period. The following table, footnotes, and other explanatory material list and explain the Commission's monthly FEDERAL REGISTER notices (FRfl) between May 6, 1983 and September 30, 1985 cn determinations about no significant hazards con-siderations (NSHC). The final rule clarifies at 9 50.91(a)(2) that, if an individual notice has been published, the periodic publication does not extend the deadline date for filing comments or providing an opportunity for a hearing.

"SH0LLY" STATISTICS May 6, 1983 through Bi-weekly FRN Individual FRN Individual FRN September 30, 1985 Proposed NSHC Proposed NSHC SHC Totals 4th FY 85 Total 4th FY 85 Total 4th FY 85 Total, 4th FY 85 Total PERIOD COVEPED Sept. Qtr. to to Sept. Otr. to to Sept. Qtr. to to Sept. Qtr. to to

1985 FY 85 date date 1985 FY 85 date date 1985 FY 85 date date 1985 FY 85 date date Comment period

30 days ! 87 282 9P4 2155 2 5 47 249l 0 6 10 36 89 293 1041 2440 Less than 30 days I -s .N. N l 0 0 9 22 ; 0 0 9 22 Short FRN i l/ / 'N 0 1 5 9 Press Release \\_ ~- Public conments (12 IllN 2 g) received i0 0 0 1 0 0 3 11 0 0 0 0 0 0 3 9 i j 14-D i (15 FRN Requests for 1.,P R ) O 0 0 9! 0 0 2 3 0 1 3 165 hearing 0 1 1 4 Amendments Issued - Total 82 228 874 1647 (1) With 30 days notice..................................................................., 76 213 830 1555 (2) Less than 30 days or N0 NOTICE........................................................ 6 15 43 82E i D 0 0 10 (3) Hearing requested but final NSHC determination made (50.91(a)(4))..................... (4) Proposed NSHC; hearing requested; hearing completed and amendment issued. i No final NSHC determination was made because hearing was completed before i S amendment was needed....................................................................! 0 0 1 I i Backlog: (Applications received which have not been noticed, either in bi-weekly FRN or individually through September 30,1985): NUMBER: 227 (Includes items which have been prepared and approved for publication in the next bi-we&1y, items which are in concurrence, and items for which additional information is needed from licensee.) FOOTNOTES: See pages 72 and 73 if an item included above is footnoted.

O . FOOTNOTES FOR "SHOLLY" STATISTICS 1/ Comments Grand Gulf - 2 comments were received, one from the State and one from a member of the public. TMI-1 - 7 ccmments were received as result of initial noticing action; 1 additional comment was received as a result of Notice of Additional Opportunity, published on August 25, 1983. Susquehanna - I comment was received from a member of the public. Oyster Creek - I comment was received from the State. k'NP-2 - 1 comment was received from a member of the public. LaSalle-2 - 1 comment was received from a local government. 2/ Requests for hearing TMI Steam generator repair - 2 requests for hearing were received. A prehearing conference was held. By a Memorandum and Order, dated June 1, 1984, the Board dismissed 9 of 11 contentions. The hearing was concluded on July 18, 1984. The Staff's proposed findings were submitted on August 20, 1984. The Board issued its Decision on October 31, 1984. Salem Integrated leak rate - 1 request for hearing received from the State of Delaware. On January 20, 198a, the State filed a motion to withdraw, which was granted by the Board on January 25, 1984. Turkey Pt. 3/4 - (a) Proposed operational limits for current and future reloads - 2 requests for hearing (2 units) were received. A prehearing conference was held on February 28, 1984. A seccnd preliminary confer-ence was held on March 26, 1985. Discovery in process. Hearing date has been established for December 10, 1985 and will be conducted continuously day-to-day until all evidence on the contention has been received. (b) Spent Fuel Storage Expansion - 2 requests for hearing (2 units). (c) Enriched fuel. storage - 2 requests for hearing (2 units). The Board has ruled that 7 of the 10 contentions are admissible for the Spent Fuel Storage Hearing and one of the four contentions for the Enriched Fuel Hearing is admissible. The Hearings are being scheduled. They will likely be held in the March or April 1986 time frame. Nuclear Responsibility Inc. and Joette Lorian petitioners in all three issues. I Pilgrim - Single loop cperation - 1 request for bearing was received. The i croceeding was dismissed on January 26, 1984, based on settlement.

1 . for normal condiffbns it of the fuel storage pool from 0.90 to 0.95 Pilgrim - Raise the K lim 1 request for hearing from John F. Doherty on June 29, 1985. ASLB issued Memorandum and Order on July 19, 1985 dismissing request (untimely filing with no good cause shown for late filing; no valid ground for intervention stated). Mr. Doherty filed an exception to the dismissal on July 27, 1985. ASLAB Order dated July 31, 1985 extended date for appeal to August 14, 1985. On August 13, 1985, Mr. Doherty filed a notice of appeal with supporting brief contending that " dismissal of the peition based on the lack of timeliness without an opportunity of reply was a procedural error recuiring a remedy." On September 5, 1985, the ASLAB affirmed the ASLB denial of Mr. Doherty's request. Grand Gulf - Amendment No. 10 redefined HPCS operation and resulted in a calculated increase in peak clad temperature. One hearino request was received. A prehearing conference was held on February 29, 1984. The Board issued its Decision on April 23, 1984, admitting two contentions for discovery. On September 24, 1984, the Bcard issued a Memorandum and Order terminating the proceeding. Trojan - Spent fuel pool expansion - 2 requests for hearing, I from the State and 1 from Coalition for Safe Power, were received. Both were admitted as parties to the proceeding. A prehearing conference was held. Two contentions were accepted. Coalition has withdrawn from the proceeding. The Board issued its Initial Decision on November 28, 1984. Zion 1/2 - Containment leak testing - 2 requests for hearing (2 units), from Citizens Against Nuclear Power were received. The licensee subseouently withdrew its applicatfon. 3_/ Amendments Issued, Item (3) TMI-1 hot testing, I amendment Salem 1 integrated leak testing, 1 amendment Turkey Pt. 3/4 operational limits for current / future reloads, 2 amendr.ents TMI-1 hot functional testing of SG,1 amendment Trojan spent fuel pcol, I amendment Turkey Pt. 3/4 SFP storage expansion, 4 amendments Grand Gul# peak clad temperature, I amenoment f/ Amerldments Issued, Item (4) TMI-1 steam generator tube repairs and return to operation,1 amendment. Pursuant to the Initial Decision of the Board dated October 31, 1984, the Commission completed action on GPU's May 9, 1983, application by issuing an ( amendment to the license perni tting the return of the steam generators to i operation. The hearing having been ccmpleted, the matter of a final determination of no significant hazards consideration related to this amend-ment was considered moot and no such determination was re;uired or made.

. Additional Explanations for Table on "Sholly" Statistics Out of a total of 2204 notices of no significant hazards considerations, the Commission received recuests for hearings on 13 notices and comments on 15 j notices. Out of a total of 36 notices of significant hazards considerations, the Commission received requests for hearings cn 3 notices and no comments. Between May 6, 1983, and September 30, 1985, the Commission published various types of notices in addition to or to the exclusion of FRNs. Three were press releases only; four were press releases and paid announcements; one was a press release and a FRN; and one was a paid announcement only. The specifics of these notices were as follows: 'f Press Release (only) 1. Florida Power Corporation, et al. (FPC), Crystal River Ur.it No. 3, application for amendment dated June 24, 1983 to provide the opticn of using a roving fire watch patrol instead of a continucus fire watch when reouired by a non-functional fire barrier penetration. Use of the option requires verification that fire detectors are cperational. On June 14 (10 days before the application) FPC discovered that a large number of fire dampers in various building ventilation systems had not been certified by the i manufacturer tc be able to sustain a fire for a 3-hour period. The devices were only certified for a 1-1/2 hcur rating. NRC regulaticns require such devices to be certified with a 3-hour rating. FPC considered the subject l I i I

. dampers to be non-functional and, as required by the Technical Specifications (TS), was required to maintain a continuous fire watch at each damper. 2. Southern California Edison Company, San Cnofre Unit 1, applicaticn for 4 i amendment dated July 23, 1984, to revise limiting conditions for operation for snubbers in accordance with GL Ba-13 in order to delete the tabular listings of snubbers and to specify instead that all snubbers are required to be operable except for those installed en non safety-related systems whose failure or failure of the system on which they are installed would have no adverse effect on any safety-related system. Snubber modifications were conducted and were completed just before hot functional tasting in mid-August 1984. The reouest to revise the explicit lists therefore could not have been processed earlier. 3. Southern California Edison Company (SCE), San Onofre Nuclear Generating Station Unit 3, application for amendment dated July 14, 1983, to allcw startup testing in the hot standby mode (hot, zero power, subcritical) before initial criticality with two operable auxiliary feedwater pumps rather than three. The licensee stated that because the plant has not been critical, the reduced auxiliary feedwater system capacity permitted by the proposed change is compensated for by the absence of decay heat and fission products in the clean core. One of the electric-motor driven auxiliary feedwater pumps had recently been observed to vibrate excessively. SCE determined on July 11 that the excessive vibration was due to a warped shaft in the pump motor. Since the defect could not be repaired in the field, the motor roter 1 4

1 76 - was returned to the manufacturer for repair. SCE estimated that the purp would be out of service for 4 to 6 weeks. During that time, the TS would not permit operation of the plant in the hot standby mode. The next stage of the startup test program required about a month of testing in hot standby. Therefore, if the TS were not changed, the hot standby testing could not be conducted until the defective pump was returned to service, delaying the startup test program and ultinately power operation by about four weeks. Press Release ard Paid Public Announcement 1. Mississippi Power and Light Company, et al., Grand Gulf Nuclear Station Unit No.1, application for amendment dated June 14 and August 1,1983, to change the TS and grant one-time exceptions to some TS for relief needed to restart the plant. The application would redefine cperability ranges for high pressure core spray until the first refueling outage due to water level instrumentation inaccuracies at low pressure; requested atpreval of a design change to prevent automatic tripping of RHR jockey pumps needed to prevent potential damage from waterhammer. The one time exceptions requested were suspension of the provisions of TS 4.0.4 to allow plant to attain operating conditions necessary for ADS trip system surveillance testing and to allcw plant to attain operating conditions necessary for Scram Discharge Volume surveillance testing. The amendment would allow immediate start-up of the plant. _n --g -~- .m-

i s . 2. Commonwealth Edison Company (CEC), LaSalle County Station, Units 1 and 2, application for amendment dated May 25, 1984, to change the TS in Table 3.3.2-2 to increase the main steam line tunnel inlet air to outlet air temperature difference for the trip setpoint 12 F from greater than or equal to 24 F to greater than or equal to 36 F. The allowable value increased 12 F to 42 F. These changes were proposed to prevent an urintentional full isolation of all main steam lines causing reactor shutdown with no steam present. CEC requested action as soon as possible because of the new steam turrel temperatures rhich were being obtained from operational startup of Unit 2. CEC explained that the change was needed as soon as possible to prevent spurious trips from causing full steam line isolations and reactor shut downs. 3. Commonwealth Edison Company, LaSalle County Station, Unit 2, application for amendment dated July 31,-1984, to vacate Amendment No. 3 and reinstate License Condition 2.C(7) which required installation of instrumentation that would automatically shut down the reactor (in the startup and refueling modes only) in the event of low control rod drive pump discharge pressure. Condition 2.C(7) was to have been satisfied before completion of the startup test program. Amendment No. 3 indicated installation of the instrumentation to comply with License Condition 2.C(7) and provided the necessary TS to assure proper operation of the new scram capability and deletion of the license condition. Hcwever, the licensee found that, while testing the modification, spurious scrams occurred, indicating that with the existing trip setpoints the modification could not yet be declared fully cperable,

. pending identification and correction of the cause of the scrams. Thus, the license condition had to be reinstated to provide the time necessary to assure the operability of the instrumentation. 4. Georgia Power Company, et al., Edwin I. Hatch Nuclear Plant, Unit No. 2, application for amendment dated August 27, 1984, supplemented September 20, 1984, requested the revision of the overcurrent trip setpoints for four circuit breakers listed in the TS Table 3.8.2.6-1 "Prinary Containment Penetration Conductor Overcurrent Protective Devices." The licensee requested an exigent circumstances amendment because of its late recognition that the TS change was necessary in order to provide the new overcurrent trip setpoints. The NRC staff issued a proposed determination that, though the plant could be started up and operated without this change, extended operation without it was undesirable because it requires deenergizing the main steam line drain valve motor. Press Release and Federal Register Notice (short notice) 1. Pennsylvania Power and Light Company, Suscuehanna Steam Electric Station, Unit 1, application for amendment dated October 20, 1983, as mcdified November 7,1983, to change the TS table to modify the start time sequence of two emergency service water pumps frcm 53 and 57 seconds to 44 and 48 seconds, respectively, to support two-unit operation and prevent potential concurrent starts of the residual heat removal or core spray pumps with the emergency service water pumps. The exigent circumstances resulted

s . from extending the shutdown of Unit 1 following the tie-in outage for Unit 2 and delaying the fuel load of Unit 2 if the proposed change were not acted upon in a timely manner. Paid Public Announcement (only} Toledo Edison Company, et al., Dav's-Besse Nuclear Power Station, Unit No. 1, application for amendment dated December 3,1984, to modify TS section 1.6 which provides the definition of OPERABLE 0PERABILITY, to provide that, from the effective date of the amendment until Mode 1 is entered for Cycle 5 only, operability of the auxiliary feedwater system will be determined without consideration of the status of the startup feedwater system. The licensee satisfactory explained the circumstances requiring prompt action on the application because the startup feedwater pump would be needed en a one-time basis to perform the zero power physics tests in Mode 2 during plant startup. While the plant could be started up and operated at low power without the change, initial startup frcm a refueling outage without the change was undesirable because it could extend or prevent performance of required zero-power core physics testing and could result in unnecessary challerpes to the plant's safety system.

J & While it is awaiting public comment, the staff proceeds with the safety analysis. In this context, the Commission explained in the interim final rules that, though the substance of the public comments could be litigated in a hearing, when one is held, neither it nor its Licensing Boards or Presiding Officers would entertain hearing recuests on the NRC staff's substantive findings with respect to these comments. It noted that this is in keeping with the legislation which states that public comment cannot delay the effective date of an amendment. The Commission has modified 9 50.58(b)(6) to state that only it on its own initiative nay review the staff's substantive findings. 1 After the public comment period, the Commission reviews the comments, if any, considers the safety analysis, and makes its decision en the amendment request. If it decides that no significant hazards consideration is involved, it may publish an individual " notice of issuance" under ! 2.106 or, normally, it publishes the notice of issuance in its system of periodic FEDERAL REGISTER notices, and thus closes the public record. As the Commission explained with respect to the interim final rules, it does not normally make and pub-lish a " final determination" en no significant hazards consideration, because such a determination is needed only if a hearing recuest is received and if it decides to make the amendment immediately effective and to provide a hearing after issuance rather than before. In this regard, the staff need not respond to comments if a hearing has not been requested. l

s . If it receives a hearing request during the comment pericd and the staff has decided that no significant hazards consideration is involved, it prepares a " final determination" on that issue which considers the reouest and the public ccmments, makes the necessary safety and public health findings, and i proceeds to issue the amendment. The hearing reouest is treated the same way I as in previous Commission practice, that is, by providing any requisite j i hearing after the amendment has been issued. As explained before, the legislation permits the Commission to make an amendment immediately effective, notwithstanding the pendency before it of a request for a hearing from any person (even one that meets the provisions for interventien in 5 2.714), in 4 advance of the holdino and completion of any required hearing, where it has determined that no significant hazards consideration is involved. Any question about the staff's substantive determinations on the issue of significant versus no significant hazards consideration that may be raised in any hearing on the amendment does not stay the effective date of the amendment. The procedures just described have been the usual way of handling license amendments under the interim final rules because most of these amendments do not involve (1) emergency situations, or (2) exigent circumstances, or (3) entail a determination that a significant hazards consideration is involved. As discussed below, these three cases and other unusual or.es could arise though.

O Returning to the initial receipt of an application, if the staff were to receive an amendment request and then determine that a significant hazards consideration is involved, it would handle this request by issuing an indi-vidual notice of proposed action providing an opportunity for a prior hearing under i 2.105, and, as appropriate, notifying the public of the final disposi-tion of the amendment by noting its issuance or denial in an individual 4 FEDERAL PEGISTER notice. As explained above, even if the amendment request were to involve an emergency situation and if it were determined that a i significant hazards consideration were involved, the Ccmission would be required to issue a notice providing an opportunity for a prior hearing. If the Commission were to determine, however, that the public health or safety were in imminent danger, it could issue an appropriate order under 10 C.F.R. Part 2, as explained previously and as also discussed below, i Another unusual case may arise: the staff may receive, for instance, an amendment recuest and find an energency situation, where failure to act f in a timely way would result in derating or shutdown of a nuclear power plant. In this case, also discussed later in connection with State censul-J tation, it may proceed to issue the license amendment, if it determines, 4 among other things, that no significant hazards consideration is involved. In this circumstance, the staff might not necessarily be able to provide for prior notice for opportunity for a hearine or for prior notice for public corrent; though it has not done this so far, it could provide notice l in an individual notice of issuance under 9 2.'05 (which provides an cpportunity for a hearing after the amendment is issued) or, as has been the i i )

. case thus far, it could provide periodic retice (the Commission's periodic FEDERAL REGISTER notice system notes its action en the amendnent request and, thereby, provides an opportunity for a hearing after issuance). The Commission stated with respect to the interim final rules, in connection with emergency requests, that it expects its licensees to apply for license amendments in a timely fashion. It explained that it will decline to dispense with notice and coerent on the no significant hazards consideration determination, if it determines that the applicant has failed to make a timely application for the amendment because of negligence or in order to create the emergency so as to take advantage of the emergency provision. Whenever an emergency situation is involved, the Commission expects the applicant to explain to it why it has occurred and why the applicant could not avoid it; the Commission will assess the applicant's reasons for failure to file an application sufficiently in advance of that event. An emergency situation might also occur during the normal 30-day cerrment period. Depending upon the tyre of emergency (safety-related versus emergency situation in the "Sholly" sense -- see Section II(F)(1.1) abcVe), the Ccmmission wculd act under the system described above. Another unusual case might be that the Commission receives an arrendment request and finds an exigent circumstance, that is, a situation other than an emergency where swift action is necessary. The legislation, cuoted above, states that the Commission should establish criteria which "take into acccunt the exigency of the need for the amendment." The Conference Report, quoted

i l i. 84 - I above, points cut that "the conference agreement preserves for the Commission substantial flexibility to tailor the notice and comment procedures to the exigency of the need for the license amendment" and that "the conferees expect the content, placement, and timing of the notice to be reasonably calculated i i to allow residents of the area surrcunding the facility an adequate opportunity i to formulate and submit reasoned comments." i In the interim final rules, the Commission stated its belief that extraordinary cases may arise, short of an emergency, where a licensee and the Commission must act quickly and where time does not permit the Commission to publish a FEDERAL REGISTER notice soliciting public comment or te provide 30 days ordinarily allowed for public comment. As noted in the response to public comments on the two interim final rules, the Commission gave as examples two circumstances involving a net benefit to safety. (See additional examples at II(G)(1.1).) One circumstance might occur if a licensee with a reactor shut-down for a short time wishes to add some component clearly more reliable than one presently installed; another might occur when the licensee wishes to use a different method of testing some system and that method is clearly better than one provided for in its technical specifications. In either sase, the licensee may have to request an amendment, and, if the staff determines, among other things, that no significant hazards consideraticn is involved, it may wish to grant the request before the licensee starts the plant up and the opportunity to improve the plant is lost. i 1 l 4 i -v ,.--,w y r -- w -rw-- w

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. The Commission noted in the interim final rules that in circumstances such as the two just described, it may use media other than the FEDERAL REGISTER, for example, a local newspaper published near the licensee's facility, widely read by the residents in the area surrcurding the facility, to inform the public of the licensee's amendment request. It stated that in these instances, the Ccmmission will provide the public a reasonable cpportunity to comment en the preposed no significant hazards determination. It also stated that, to ensure that the comments are received on time, it may also set up in such a situation a toll-free hotline, allowing the public to telephone their comments to NRC cn the amendment request. This method of prior notice for public comment is in addition to any individual notice of hearing that may be published; it does not affect the time available to exercise the opportunity to request a hearing, though it ray provide that opportunity only after the amendment has been issued, when the Commission has determined that no significant hazards consideration is involved. The Com71ssion has modified slightly the procedure discussed above. In emergency situations the staff does not have tire to issue a notice. In exigent circumstances, the staff has to act swiftly but has some time to issue a notice; in most instances it will be a FEDERAL REGISTER notice requesting public comment within less than 30 days, but no less than two weeks. The Comnission, of course, needs the cooperation of a licensee to make the system work and to act quickly. If NRC is put in a situation where it cannot issue

. a FEDERAL REGISTER notice for at least two weeks public comment, it will issue a media notice. It may censult with the licensee on a propcsed release and the geographical area of its coverage and, as recessary and appropriate, may inform it of the State's and the public's comments. If a system of mailgrams or overnight express is workable, it may use that as j cpposed to a Fctline; however, it has not ruled out the use of a hotline. If it does use a hotline, it may tape the conversations and may transcribe them, as necessary and appropriate, and may inform the licensee of these. i As with its provisions on emergency situations, the Ccmmission explained in the interim final rules that it would use these procedures sparingly and that it wants to make sure that its licensees will not take advantage of these procedures. It stated that it will use criteria similar to the ones it uses with respect to emergency situations to decide whether it will shorten the l comment period and change the type of notice normally provided. It also stated in connection with requests indicating exigent circumstances that it 1 expects its licensees to apply for license amendments in a timely fashion. It will not change its normal notice and public comment practices where it determines that the licensee has failed to use its best efforts to make a timely application for the amendment because of negligence or in order to 1 create the exigent circumstances so as to take advantage of the exigency provision. Whenever a licensee wants to use this provision, it has to explain to the staff the reason for the exigency and why the licensee cannot avoid it; the staff will essess the licensee's re sons for failure to file

_ _. ~. _ _ _ _ _. _ _ _ _ _. I I i an application sufficiently in advance of its proposed action or for its s inability to take the acticn at some later time. j The staff could also receive an amendment request with respect to which

l it finds that it is in the public interest to offer an opportunity for a prior hearing.

In this case, it would use its present individual notice procedure te allow for hearing requests. Whether or not a hearing is held, it would notify the public about the final disposition of the amendment in i an individual FEDERAL REGISTER notice of issuance or denial, i It should also be re-emphasized that these procedures normally cnly apply to license applications. The staff may, under existing 55 2.202(f) and 2.204, make a determination that the public health, safety, or interest requires l it to order the licensee to act without prior notice for public comment or opportunity for a hearing. In this case, the staff wculd follow its present procedure and publish an individual notice of issuance in the FEDERAL. [ REGISTER and provide for an opportunity for a hearing on the order. i The new system has changed only the Commission's noticing practices; it has not altered its hearing practices. The Commission explained in the two interim final rules that it has attempted to provide noticing procedures that are administratively simple, involve the least cost, do not entail { undue delay, and allow a reasonable opportunity for public comment; never-theless, it is clear that they are burdensome and involve resource impacts i i j l

I i i i and timing delays for the Commission and for licensees requesting amendments. Licensees can reduce these delays under the procedures by providing to the i l Commission their timely and carefully prepared appraisals on the issue of i significant hazards, and the staff can further reduce delay by processing j j requests expeditiously. i i B. State Corsultation As noted above, Public Law 97-415 requires the Comission to consult with l the State in which the facility involved is located and to promulgate regu-l lations which prescribe procedures for such consultation on a determinaticn 1 4 l that an amendment to an operating license involves no significant hazards consideration. The Conference Report, cited earlier, stated that the conferees expect that the procedures for State consultation would include the following elements * (1) The State would be notified of a licensee's request I for an amendment; (2) The State would be advised of the NRC's evaluation of i the amendment request; (3) The NRC's proposed determination en whether the license i amendment involves no significant hazards consideration would be discussed with the State and the NRC's reasons for making that determination would be explained to the State; I (4) The NRC would listen to and consider any comments i l provided by the State official designated to consuit with the NRC; and (5) The NRC would make a gcod faith attempt to consult with the State prior to issuing the license amendment. ) s i l 1 i l

, At the same time, however, the procedures for State censultation would not: (1) Give the State a right to veto the proposed NRC determination; (2) Give the State a right to a hearing on the NRC determination before the amendment becomes effective; (3) Give the State the right to insist upon a postponement of the NRC determination or issuance of the amendment; or (4) Alter present provisions of law that reserve to the NRC exclusive responsibility for setting and enforcing radiological health and safety requirements for nuclear pcwer plants. In requiring the NRC to exercise scod faith in consulting with a State in determining whether a license amendment involves no significant hazards consideration, the conferees recognize that a very limited number of truly exceptional cases may arise when the MRC, despite its good faith efforts, cannot contact a responsi-ble State official for purposes of prior consultation. Inability to consult with a responsible State official following good faith attempts should not prevent the NRC from making effective a license amendment involving no significart hazards consideration, if the NRC deems it necessary to avoid the shut-down or derating of a power plant. Conf. Rep. No. 97-884, 97th Cong., 2d Sess., at 39 (1982). The law and its legislative history were quite specific. Accordingly, the Commission adopted the elements described in the Conference Report quoted above in those cases where it makes a proposed determination on no significant ha:ards consideration. The Commissien has decided to retain this procedure. Normally, the State consultation precedures works as follows. To make the State consultation process simpler and speedier, under the interim final rules the Commission has required an applicant requesting an amendment to send a ecpy of its appraisal on the question of no significant hazards to the State in which the facility involved is located. (The NRC

o compiled a list of State officials who were designated to consult with it on amendment recuests involving no significant hazards considerations; it rade this list available to all its licensees with facilities covered by { 50.21(b) or 5 50.22 or with testing facilities.) The staff sends its FEDERAL REGISTER notice, or some other nctice in the case of exigent circumstances, contairing its proposed determination to the State official designated to consult with it together with a request to that person to centact the Commission if there is any disagreerent or concern about its proposed determination. If it does not hear from the State in a timely manner, it considers that the State has no interest in its determination -- in this regard, the staff made available to the designated State officials a list of its Project Vanagers and other personnel whom it has designated to consult with these officials. The final rule has been clarified to point out that, nevertheless, to insure that the State is aware of the amendment request and that it is really not interested, the Comissicn will make a reasonable effort to telephone the appropriate State official before it issues the amendment. In an emergency situation, the staff does its best to consult with the State before it makes a firal determination about no significant hazards consideration before it issues an amendment. Finally, in light of the legislative history, though the staff gives careful consideration to the comrents provided tc it by the affected State

_ ~.. O 1 91 i I on the cuestion of no significart hazards ccnsideraticn, the State comments l I are advisory to the COTmission; the Conmission remains responsible for j making the final administrative decisien on the amendment rcquest; a State a Cdnnot V0to the Commission's proposed or final cetermination. Second, State consultaticn does not alter present provisicrs of law that reserve to the + Ccamissicn exclusive responsibility for setting and enforcing radiological health ard safety requirements for nuclear power plants. I .l Reculatory Analysis t i l The Ccnmission prepared a Regulatory Analysis on these amendments, when it 1 i l issued the two interim final rules. It is contained in SECY-83-168 and it i d may be examined at the address indicated in " ADDRESSES" above. Experience to date indicates that the staff resource impacts predicted in the Analysis are 5 low by abcut a factor of three. This is expected to change as experience is l .l gainea in implementing the final rule. Backfit Analysis l 1 l l t 4 l Under 10 CFR 50.109, preparation of a backfit aralysis is not necessary, since i the rule is required by legislation (whether or nct it meets the standard in j i l 150.109(a)(3)), since the final rule is a ecdificaticn of two interim final rules promulgated before new { 50.109 became effective, and since the firal i rule is peccedural ard not within the definition of "backtit" in 150.1C9(a)(1). i l l l f

~- _ . _. - _. - -. -. _ ~ Pacerwork Reduction Act Statement 4 i This tinal rule amends information collection requirements subject to the Paperwork Feductior Act of 1980 (44 U.S.C. 3501 et seq.). These require-i j nents were approved by the Office of Management and Budget under approval number 3150-0011. l I i Regulatory Flexibility Certificatien In accordance with the Regulatory Flexibility Act of 1980 (Act), 1 5 U.S.C. 605(b), the Commission certifies that this rule does not have a significant economic impact on a substantial number of small entities. This rule affects only the licensing and operation of nuclear power plants and testing facilities. The ccmpanies that own these plants do not fall within I the scope cf the definition of "snall entities" set forth ir the Act j or in the Small Business Size Standards set out in regulatiens issued by tra j Small Business Administration at 13 CFR Part 121. Consequently, this rule i does not fall within the purview of the Act. I List of Subjects in 10 C.F.R. Parts 2 and 50, a i Part 2 Administrative practice and prncccure, Antitrust, Byprccuct material, i Classified information, Envirccmental prctection, Muclear materials, Nuclear power plants and reactors, Penalty, Sex ciscriminaticn, t Source caterial, Scecial nuclecr material, "aste trcatrcent anc disposal. j i

, Part 50 Antitrust, Classified information, Fire prevention, Incorporation by reference, Intergovernmental relaticos, Nuclear power plants and reactors, Penalty, Padiation protection, Peactor siting criteria, i Reporting and recordkeeping requirements. 1 I Pursuant to the Atomic Erergy Act of 1954, as amended, the Energy Reor9 ariza-tien Act of 1974, as amended, and secticns 552 and 553 of Title 5 of the United States Code, notice is hereby given that the following amendments to j 10 C.F.R. Parts 2 and 50 are published as a document subject to codification. i. PART 2 -- RULES OF PRACTICE FOR CCMESTIC LICENSING PROCEEDINGS 1. The authority citation for Part 2 is revised to rea'd as follows: f AUTHORITY: Secs. 161, 181, 68 Stat. 948, 953, as amended (a2 U.S.C. 2201, 2231); sec. 191, as amended, Pub. L. 87-615, 76 Stat. 409 (42 U.S.C. 2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); 5 U.S.C. 552. i Section 2.101 also issued ur. der secs. 53, 62, 63, 81, 103, 104, 105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42 U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); sec. 102, Pub. L. 91-190, 63 Stat. 853, as amended (a2 U.S.C. 4332); sec. 301, SS Stat. 1243 (42 U.S.C. ? J 5871). Sections 2.102, 2.103, 2.104, 2.1C5, 2.721 also issued under secs. 102, 103, 1C4, 105, 183, 189, 68 Stat. 936, 937, 938, 954, 955 as atoenced (42 U.S.C. 2132, 2133, 2134, 2135, 2233, 2239). Section 2.105 alsc issued under Pub. L. c7 415, 96 Stat. 2073 (J2 U.S.C. 2239).

-O - Secticns 2.200-2,2C6 also issued under secs. 186, 234, 68 Stat. 955, 83 Stat. 444, as amended (42 U.S.C. 2236, 2282); sec. 206, 88 Stat. 1246 (42 U.S.C. 5846). Sections 2.600-2.606 also issued under sec. 102, 4 Pub. L. 91-190, 83 Stat. 853, as amended (42 U.S.C. 4332). Sections 2.7CCa, 2.719 also issued under 5.U.S.C. 554. Sections 2.754, 2.760, 2.770 also issued under 5 U.S.C. 557. Sections 2.79C also issued unoer sec. 103, 68 Stat. 936, as amended (42 U.S.C 2133) and 5 U.S.C. 552. Sections 2.800 and 2.808 also issued under 5 U.S.C. 553. Section 2.809 also issued under 5 U.S.C. 553 and sec. 29, Pub. L. 85-256, 71 Stat. 579, as amenced. (42 U.S.C. 2039). Appandix A also issucc uncer sec. 6, Pub. L. 91-580, 84 Stat. 1473 (42 U.S.C. 2135). 2. In @ 2.105, paragraphs (a)(4), [theeugh-a}f8)-aFe-Fede9+gRaned-ss paragvaphs-fa}{s-tkreugh-fa}{9),-a-Rew-paragrap>-faffa)-is-addedy-and 4 redesignated-paragraph](a)(6), and (d)(2) are revised to read as follows:* % 2.105 Notice of proposed action. (a) l (4) An amendment to an operating license for a facility licensed under

• 9 50.21(b) cr 150.22 cf this charter or for a testing facility, as folicus:

(i) If the Commission determines under s 50.58 of this chapter that the amendment involves to significant hazards censideration, though it wili i provide notice of oppcetunity for a bearing pursuant to this secticn, it nay 1 l make the amendment inmediately effective arc grant a hearing thereafter; or i i

• Additions are undariu.ed; deletiens are in brac'rets ind scered tnrcugt.

i

r-O (ii) If the Commission determines under 6 50.58 and s 50.01 of this chapter that an emergency situation exists or that exigent [s4twatien] circumstances exist [s] and that the amendment involves no significant hazards considerations, it will provide notice of opportunity for a hearing pursuant to 9 2.106 (if a hearing is requested, it will be held after issuance of the amerAment); (6) An amendment to a license specified in paragraph (a)(5) of this section, or an amendment to a construction authorization granted in proceedings on an application for such a license, when such an amendment I would authorize actions which may significantly affect the health and safety of the public; or (d) (1) (2) Any person whose interest may be affected by the proceeding may ' file a recuest for a hearing or a petition for leave to intervene if a hearing has already been reauested. Si 2.300-2.309 [ Removed] 3. Subpart C (15 2.300-2.309) is removed.

. PART 50 -- COMESTIC LICENSING OF PRCCUCTION AND UTILIZATION FACILITIES 4. The authority citation for Part 50 is revised to read as follows: AUTHORITY: Secs. 103, 104, 161, 182, 183, 186, 189, 68 Stat. 936, 937, 948, 953, 954, 955, 956, as amended, sec. 234, 83 Stat. 1244, as amended (42 U.S.C. 2133, 2134, 2201, 2232, 2233, 2236, 2239, 2282); secs. 201, 202, 206, 88 Stat.1242,1244,1246, as amended (42 U.S.C. 5841, 5822, 5846), unless otherwise noted. Section 50.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat. 2951 (42 U.S.C. $851). Sections 50.58, 50.91 and 50.92 also issued under Pub. L. 97-415, 96 Stat. 2073 (42 U.S.C. 2239). Section 50.78 also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Sections 50.80-50.81 also issued under sec. 184, 68 Stat. 954, as amended (42 U.S.C. 2234). Sections 50.100-50.102 also issued under sec. 186, 68 Stat. 955 (42 U.S.C 2236). Fcr the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2273), QS 50.10(a), (b), and (c), 50.44, 50.46, 50.48, 50.54, and 50.80(a) are issued under sec. 161b, 68 Stat. 948, as amended (42 U.S.C. 2201(b)); @s 50.10(b) and (c) and 50.54 are issued under sec. 1611, 68 Stat. 949, as amended (42 U.S.C. 2201(i)); and 5s 50.55(e), 50.59(b), 50.70, 50.71, 50.72, 50.73 and 50.78 are issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201(o)). j

. For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2273), 55 50.10(a), (b), and (c), 50.44, 50.46, 50.48, 50.54, and 50.80(a) are issued under sec. 161b, 68 Stat. 948, as amended (42 U.S.C. 2201(b)); $5 50.10(b) and (c) and 50.54 are issued under sec. 161i, 68 Stat. 949, as amended (42 U.S.C. 2201(i)); and 95 50.55(e), 50.59(b), 50.70, 50.71, 50.72, and 50.78 are issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201(o)). S 50.57 [ Amended] 5. In s 50.57, paragraph (d) is removed. 6. In Q 50.58, paragraph (b) is revised to read as follows: 550.58 Hearings and report of the Advisory Committee on Reactor Safeguards. (b)(1) The Commission will hold a hearing after at least 3C-days' notice and publication ence in the FEDERAL REGISTER on each applicatico for a construction permit for a production or utilization facility which is of a type described in 550.21(b) or 550.22, [ef-this-party] or for [wh4eh-4s] a testing facility. M When a construction permit has been issued for such a facility following the holding of a public Fearing and an applicaticn is made for an operating license or for an amendment to a construction permit or operating

. license, the Ccmmission may hold a hearing after at least 30-days' notice and publication once in the FEDERAL REGISTER, or, in the absence of a request therefor by any person whose interest may be affected, may issue an operating license or an amendment to a construction permit or cperating license without a hearing, upon 30-days' notice and publication once in the FEDERAL REGISTER of its intent to do 50. (3) If the Commission finds, in an emergency situation, as defined in Q 50.91, that no significant hazards consideration is presented by an application for an amendment to an operating license, it may dispense with public notice and comment and may issue the amendment. If the Commission finds that exigent circumstances exist, as described in Q 50.91, it may reduce the period provided for public notice and comment. (4) Both in an emergency situation and in the case of exigent circumstances, the Commission will provide 30 days notice of opportunity for a hearing, thcugh this notice may be published after issuance of the amendment if the Commission determines that no significant hazards considerations are involved. (5) The Commission will use the standards in Q 50.92 to determine whether a significant hazards consideration is presented by an amendment to an operating license for a facility of the type described in % S0.21(b) or Q 50.22, or which is a testing facility, and may make the amendment ir.medi-ately effective, notwithstanding the pendency before it of a recuest for a hearing from any person, in advance of the holding and completion of any reaufred hearing, where it has determined that no significant hazards censideration is involved.

, (6) Only the Commission on its own initiative may review the staff's substantive findings under % 50.92. 7. Section [A-mew-{]50.91 is [added-te-paFt-59] revised to read as folicws: $50.91 Notice for public comment; State consultation. The Commission will use the following proccJures on an application [Peee4ved afteF-May-6 -4983] requesting an amendment to an operating license for a 1 facility licensed under s 50.21(b) or 5 50.22 cr for a testing facility: (a) Notice for public comment. (1) At the time a licensee requests an amendment, it must provide to the Commission its reasoned analysis, using the standards in @ 50.92, about the issue of no significant hazards consideration. (2) The Commission may publish in the FEDERAL PEGISTER under 9 2.105 [eitheF] an individual notice of proposed action [as-te-wh4ek-4t-makes-a] for an amendment for which it makes a proposed determination that no signifi-cant hazards consideration is involved, or, at least once every 30 days, J publish a [menthly] periodic FEDERAL REGISTER notice of proposed actions which identifies each amendment issued and each amendment proposed to be issued since the last such [wenthly] periodic notice, or it may publish both such notices.

- 100 - For each amendment preposed to be issued, [eftheF) the notice Will (i) Contain the staff's proposed determination, under the standards in 5 50.92, (ii) provide a brief description of the amendment and of the facility involved, (iii) solicit public comments on the proposed determination, and (iv) provide for a 30-day comment period. The comment period will begin on the day after the date of the publication of the first notice, and, normally, the amendment l will not be granted until after this comment period expires. (3) The Commission may inform the public about the final disposition of en amendment request [where] for which it has made a prorosed determina-tion of no significant hazards consideration either by issuing an individual notice of issuance under Q 2.106 of this chapter or by publishing such a notice in its [meath3y] periodic system of FEDERAL REGISTER notices. In either event, it will not make and will not publish a final determination en no significant hazards consideration, unless it receives a request for a hearing I. on that amendment request. (4) Where the Ccemission makes a final determination that no significant hazards consideration is involved and that the amendment shculd be issued, the amendment will be effective upon issuance, even if adverse public comments 4 have been received and even if an interested persen meeting the provisions for intervention called for in 6 2.714 of this chapter has filed a request for a hearing. The Commission need hold any recuired hearing only after it issues an amendment, unless it determines that a significant hazards consider-I ation is involved in which case the Commission will provide an opportunity for a prior hearing.

O - 101 - (5) Where the Commission finds that an emergency situation exists, in that failure to act in a timely way would result in derating or shutdown of a nuclear power plant, or in prevention of either resumption of operation or of increase in power output up to the plant's licensed power level, it may issue a license amendment involving no significant hazards consideration without prior notice and opportunity for a hearing or for public comment. In such a [eireumstanee] situation, the Commissicn will not publish a notice of proposed determination on no significant hazards consideration, but will publish a notice of issuance under s 2.106 of this chapter, providing for opportunity for a hearing and for public comment after issuance. The Commission expects its licensees to apply for license amendments in timely fashion. It will decline to dispense with notice and comment on the determination of no significant hazards consideration if it determines that the licensee has failed to make timely application for the amendment in order to create the emergency and to take advantage of the emergency provision. Whenever a-threatened-eleswee er-derating-4s-4nvelved, an emergency situation exists, a licensee requesting an amendment must explain why this emergency situation occurred and why it could not avoid this situation, and the Commission will assess the licensee's reascns for failing to file an application sufficiently in advance of that event. (6) Where the Commission finds that exigent circumstances exist, in that a licensee and the Ccmmission must act quickly and that time does not pernit the Commission to publish a FEDERAL PEGISTEP notice allowing 30 days for prior public ccament, and it also determines that the amendment involves no significant hazards considerations, it:

- 102 - (i)(A) Will either issue a FEDERAL REGISTER notice providing notice of an opportunity for a hearing and allowing at least two weeks from the date of the notice fcr prior public comment; or (B) Will use local media to [4mferm] provide reasonable notice to the public in the area surrounding a licensee's facility of the licensee's amendtrent and of its proposed determination as described in paragraph (a)(2) of this section, consulting with the licensee on the proposed media release and on the geographical area of its coverage; (ii) Will provide for a reasonable opportunf t" for the public to comment, using its best efforts to make available to the public whatever means of communication it can for the public to respond quickly, and, in the case of telephone comments, have these ccmments recorded or transcribed, as necessary and appropriate; (iii) When it has issued a local media release, may inform the licensee of the public's comments, as necessary and appropriate; (iv) Will publish a notice of issuance under 9 2.106; [previding-an eppertunity-feF-a-heaping-and-feF-publie-eemment-afteF-4sswaPeet-4f-44 determines-tkat-the-amendmentAnvelves-ne-s4gnifieant-hazards-eensideratien] (v) Will provide a hearing after issuance, if one has been requested by a person who satisfies the provisions fcr intervention called for in 4 2.714 of this chapter; [f4v)](vi) Will require [an-explapatien-frem] the licensee [abest-the reasen-fer] te explain the exigency and why the licensee cannot avoid it, and use its normal public retice and comment procedures in paragraph (a)(2) of this section [where] if it determines that the licensee has failed to

A - 103 - use its best efforts to make a timely application for the amendment in order to create the exigency and to take advantage of this procedure. (7) Where the Commissien finds that significant hazards considerations are involved, will issue a FEDERAL REGISTER notice providing an opportunity for a prior hearing even in an emergency situation, unless it finds an imminent danger to the health or safety of the public, in which case it will issue an apprcpriate order or rule under 10 C.F.R. Part 2. (b) State consultation. (1) At the time a licensee requests an amendment, it must notify the State in which its facility is located of its request by providing [te] that State with a copy of its application and its reasoned analysis about no significant hazards considerations and indicate on the application that it has done so. (The Commission will make available to the licensee the name of the appropriate State official designated to receive such amendments.) (2) The Commission will advise the State of its proposed determination about no significant hazards consideration normally by sending it a copy of the FEDERAL REGISTER notice. (3) The Commission will make available to the State official designated to consult with it about its proposed determination the names of the Project ifanager or other NRC personnel it designated to consult with the State. The Commission will censider any comments of that State official. If it does not hear from the State in a timely manner, it will consider that the State has no interest in its determination; nonetheless, to ensure that the State is aware of the application, before it issues tre amendment, it will make a good faith effort to telephone that official. [feF-the-r w ese-ef-eensultatiest]

o - 104 - Inability to consult with a responsible State official following good faith attempts will not prevent the Ccmmission from making effective a license amendment involving no significant hazards consideration. (4) The Commission will make a good faith attempt to consult with the State before it issues a license amendment involving no significant hazards consideration. If, however, it does not have time to use its normal consul-tation procedures because of an emergency situation, it will attempt to telephone the appropriate State official. Inability to consult with a responsible State official following goed faith attempts will not prevent the Ccmmission from making effective a license amendment involving no significant hazards consideration, if the Commission deems it necessary in an emergency situation. [te-aveid-a-shutdewn-er-deratingr] (5) After the Commission issues the requested amendment, it will send a copy of its [f4 pal] determination to the State. (c) Caveats about State consultation. (1) The State consultation procedures in paragraph (b) of this section do not give the State a right: (i) To veto the Commission's proposed or final determination; (ii) To a hearing on the determinaticn before the amendment becomes effective; or (iii) To insist upon a postponement of the determination er upon issuance of the amendment. (2) [New-de] These procedures do not alter present provisions of law that reserve to the Commission exclusive respersibility for setting and

1 - 105 - enforcing radiological health and safety requirements for nuclear power plants. Section [59,94-4s-redes 4 nated-as-!] 50.92 [and-revised] is revised 8. 3 to read as follows: 0 50.92 Issuance of amendment. (a) In determining whether an amendment to a license or constructicn permit will be issued to the applicant, the Commission will be guided by the considerations which govern the issuance of initial licenses or construction permits to the extent applicable and appropriate. If the application involves the material alteration of a licensed facility, a constructicn permit will l be issued [ prier-te] before the issuance of the amendment to the license. If i the amendment involves a significant hazards consideration, the Commission will give notice of its proposed action (1) pursuant to 9 2.105 of this chapter { before acting thereon and [The-nettee-wf14-be-4ssued] (2) as soon as practicable after the application has been docketed. i (b) The Commission will be particularly sensitive to a license amend-ment request that involves irreversible consequences (such as cre that permits a significant increase in the amount of effluents or radiation emitted by a nuclear power plant). (c) The Commission may make a final determination, pursuant to the procedures in s 50.91, that a proposed amendment to an operating license for a facility licensed under S 50.21(b) or 150.22 or for a testing a f - - -,. -, -,,,, - -.7,, ,.,,.,,,.. -, _,.-r-. ,,,,.n,-

i - 106 - j 1 facility involves no significant hazards considerations, if operation of the facility in accordance with the proposed amendment would not: (1) Involve a significant increase in the probability or consequences i 4 of an accident previously evaluated; or i (2) Create the possibility of a new or different kind cf accident j j from any accident previously evaluated; or J i (3) Involve a significant reduction in a margin of safety. Dated at Washington, D.C. this day of , 1985. i ? For the Nuclear Regulatory Corrmission, i t Samuel J. Chilk, Secretary for the Commission. t 1 4 1 1 I 4 1 I i I i - - ~.,.. - -,..,.., - - - -, -. _ -, -,, - _.,.,, _, - -.,, _.. -.. _ _,..

6 0

SUMMARY

OF COMMEllTS EllCLOSURE 2

a INDEX TO

SUMMARY

OF COMMENTS 1. Clarity of Standards 2. Clarity of Examples 3. Classification of Decisions 4. Rerackings 5. Irreversible Consequences 6. Emergency Situations 7. Exigent Cirumstances 8. Retroactivity 9. Notice and Consultation Procedures

10. Notices in Emergency Situations or Exigent Circumstances

11. Procedures to Reduce the Number of Amendments

12. License Fees 13.

Regionalization

14. Exetption Requests e

e e LIST OF COMMENTERS AND DATES COMMENTS RECEIVED Comenters Overall Position on Rules 1. Ohio Citizens for Responsible Energy (OCRE) Against Susan L. Hiatte OCRE Representative 8275 Munson Rd. Mentor, OH 44060 May 5, 1981 2. Lowenstein, Newman, Reis & Axelrad (Lowenstein) For Maurice Axelrad 1025 Connecticut Ave., N.W. Washington, D.C. 20036 May 5, 1983 3. UnionofConcernedScientists(UCS) Against Ellen R. Weiss Lee L. Bishop Harmon & Weiss 1725 I Street, N.W. Suite 506 Washington, D.C. 20006 May 6, 1983 4. Stone &WebsterEcgineeringCorp.(S&W) For R.B. Bradbury Chief Engineer, Licensing Division P.O. Box 2325 245 Sumer St. Boston, Mass. 02107 May 6, 1983 5. Debevoise&Liberman(D&L) For(ifits J. Michael McGarry recomendations Jeb C. Sanford about avoiding delays 1200 Seventeenth St., N.W. areaccepted) Washington, D.C. 20036 May 9, 1983 6. HoustonLighting& Power (HL&P) For M.R. Wisenberg Manager Nuclear Licensing P.O. Box 1700 Houston, Texas 77001 May 9, 1983

7. Three Mile Island Alert, Inc. (TMIA) Against Joanne Doroshcw 315 Peffer St. Harrisburg, Penn. 17102 May 9, 1983 8 American Industrial Forum, Inc. (AIF) For Barton Cowan 7101 Wiscensin Ave. Washington, D.C. 20014 May 9, 1983 9. LeBoeuf Lamb, Leiby & MacRae (LeBoeuf) For 1333 New Hampshire Ave., N.W. Washington, D.C. 20036 May 9, 1983

10. TheIndianaSassafrasAudubonSociety(ISAS)

Against of Lawrence, Greene, Monroe, Brown, (because reracking Morgan & Owen Counties is not included) Mrs. David G. Frey Energy Policy Committee, SAS 2625 5. Smith Rd. Bloomington, Indiana 47401 May 9, 1983

11. SeacoastAnti-PollutionLeague(SAPL)

Against Jane Doughty Field Director 5 Market St. Portsmouth, NH 03801 May 9, 1983

12. Baltimore Gas & Electric (BGSE)

For Manager Nuclear Power Dept. Charles Center P.O. Box 1475 Baltimore, MD 21208 4 May 9, 1983

13. Edison Electric Institute (EEI)

For John J. Kearney Senior Vice President 1111 19th St., N.W. Washington, D.C. 20036 May 9, 1983

C 3-

14. StateofMaine(Maine)(CommentonStandards)

Against James E. Tierney Attorney General Philip Abrams Paul Stern Assistant Attorneys General State House Station 6 Augusta, Maine 04333 May 10, 1983 15. StateofMaine(Maine)(CommentonState Against James E. Tierney (Consultation) Attorney General Philip Abrams Paul Stern Assistant Attorneys General State Heuse Station 6 Augusta, Maine 04333 May 10, 1983

16. Yankee Atomic Electric Company (YAEC)

For (if 66 50.59 Robert E. Helfrich and 50.36 were Generic Licensing Activities changed to provide 1671 Worcester Rd. for fewer amendment Framingham, Mass. 01701 requests) May 12, 1983

17. NortheastUtilities(NU)

For (because they are W. G. Council required by statute) Senior Vice President P.O. Box 270 Hartford, Conn. 06141-0270 May 16, 1983

18. Marvin I. Lewis (Lewis)

Against 6504 Bradford Terr. Philadelphia, PA 19149 May 16, 1983 18A. Carolina Power & Light Co. (CP&L) For Samantha F. Flynn Associate General Counsel Walter J. Hurford Manager, Technical Services P.O. Box 1551 Raleigh, North Carolina 27602 May 16, 1983 e g a

o 4-19. (AuthorUnclear) Against 718-A Iredell Durham, NC 27705 May 20, 1983 20. New York State Energy Office (NY) For William D. Cotter Acting Commissioner Rockefeller Plaza Albany, N.Y. 12223 May 23, 1983

21. / Portland General Electric Company (PGE)

Against Bart D. Withers Vice President-Nuclear 121 S.W. Salmon St. Portland, Oregon 97204 June 20, 1983

• /

Renumbered 722 by Docketing Section 6 + 4 e e

o

SUMMARY

OF COMMENTS 1. Clarity of Standards 1.1 Coments Comenters 1 (0CRE), 3 (UCS) 7 (TMIA),10 (ISAS),11 (SAPL),14 (Maine), and 19 (Author unclear) state that the three standards in 6 50.92(c) are unclear and argue that the examples in the statement of considerations -- which they believe are clearer than the rule -- should be made part of the rule; otherwise, they argue, the examples have no legal significance. 1.2 Coment Comenter 18 (Lewis) believes that the interim final rule " unduly" and " improperly" limits freedom of speech and that minor changes in a plant can lead to severe health snd safety consequences, such as an anticipated transient without scram (ATWS) as was the case in an incident with the Salem nuclear power plant. 1.3 Coment Commenter 19 (Author unclear) suggests that the only standard that is needed is one that simply identifies those license amendments which make an accident possible. 1.4 Comments Comenter 5 (D&L) requests that only " credible accident scenarios" j should be considered in evaluating amendment requests against the first two standards. It also suggests that, with respect to the third standard (significant reduction in safety margins), the Comission

o ' should initially determine how large the existing safety margin is before deciding whether i reduction is significant, because the extent of the existing margin is clearly relevant to the Comission's determination. l Commenter 17 (NU), on the other hand, argues that it is inappropriate to specify a percentage change above which the change becomes significant. It notes that when the safety margin is three I orders of magnitude, a ten percent reduction is clearly not significant, and that when the safety margin is fifteen per.ent, a comparable percentage reduction may be significant. It also suggests that the cumulative effects of successive changes to one system must also be considered, and not merely the individual change which is being subjected to review at any given time. I 1.5 Coments Comenter 16 (YAEC) points out that the three stanJards are virtually identical to the criteria in i 50.59 for determining whether unreviewed safety questions exist, E and states that this similarity is appropriate. ( Commenter 17 (f;U) makes the sc e point as comenter 16 but notes an important difference in i 50.59, namely, that the word "significant" is absentinparagraphs(a)(2)(1)to(a)(2)(iii)ofthatsection. It suggests that i 50.59 should be amended to make it identical with i 50.92(c). m a - - + - > -

0 1.6 Comment Commenter 20 (NY) generally agrees with the rule but believes that the word "significant" should be defined, if only to forestall court challenges by persons disagreeing with NRC. It suggests that NRC should create some sort of mechanism to resolve disputes between the staff, a State, or other parties, over whether or not an amendment request involves significant hazard considerations. 2. Clarity of Examples 2.1 Comments on examples in the "likely" category Conmenter 3 (UCS) and 14 (Maine) state, with respect to the category of examples likely to involve significant hazards considerations, that (1) examples (i) and (ii) are incomprehensible; (2) example (iii) should be modified to read as follows: A significant [ change (preferred by UCS) or alteration (preferred by Maine)] in limiting conditions for operation (such as allowing a plant to operate at full power when one or more safety systems are notoperable). (They request this modification (a) to substitute either the word " change" or the word " alteration" for " relaxation" in order to clarify that an opportunity for a hearing should be available in cases where there is a legitimate question about the sufficiency of an improvement in safety and (b) to delete the reference to " accompanying changes, conditions, or actions" which they consider irrelevant until the actual hearing.), and that (3) the examples on reracking and increase in radio-active emissions appearing in a staff paper (SECY-83-16A, Enc. 3A at pp. 25-26) and deleted from the interim final rule should be restored.

o Commenter 13 (EEI) requests additional, clearer examples and comenters 3 (UCS) and 19 (Author unclear) provide the following in the category of examples "likely to invcive significant hazards considerations": (a) Reduction in testing er quality assurance quality control, or monitoring surveillance requirements; (b) Relaxation of a deadline for implementing a requirement related to safety; (c) Any reduction in the degree of redundancy and/or diversity in systems important to safety. Commenter 5 (D&L) requests, with respect to examples in the "likely" category, that, "where the maximum core power level which has been reviewed by the staff exceeds the power level actually authorized by the license, any increase in power level up to the level which was reviewed" and which received a " favorable conclusion" by the staff "(subject only to confirmation or verification of some kind) should be considered not likely to involve significant hazard considerations, since that power level has already been reviewed." The cementer contrasts this to a situation where an amendment is sought to permit operation at a maximum core power level in excess of the design basis which was reviewed and approved. Comenter 7 (TMIA) requests that steam generator tube repairs such as the one at TMI-1 should be treated as involving significant hazards considerations.

o i Commenter 14 (Main) believes that the examples do not necessarily meet with the standards and that this creates a gray area; it then i argues that all borderline cases within this gray area shculd be placed in the "likely" category. Commenter 16 (YEAC) argues that, contrary to example (vi) in the "likely" category not all changes to technical specifications are likely to involve significant hazards considerations. It cites, for example, changes to technical specifications associated with core refueling that consist of small numerical variations to fuel cycle-dependent parameters; these changes, it states, are routinely calculated, verified, and monitored using Commission-approved analytical methods and administrative procedures. As a separate but related matter, it also argues that i 50.59 should be amended to permit changes to technical specifications without the present requirements of prior approval plus amendment, when it can be demonstrated that such changes do not create i any unreviewed safety question under the present criteria in i 50.59. The commenter's suggestion is related to the proposed rule which would divide technical specifications into two categories of license specifications: technical specifications and supplemental l specifications. The former would require amendments; the latter would i not require amendments, but could require prior approval in certain l circumstances. (See 47 FR 13369, March 30, 1982). 2.2 Comments on examples in the "not likely" category Commenter 5 (D&L) requests, with respect to examples in the "not likely" category, that (1) example (ii) be expanded to encompass "any i

o change in the facility or procedures which is plainly a move in a more conservative direction;" (2) example (iii) be clarified by expressly illustrating the " change" to which it refers "as including (though not limited to) routine adjustments in technical specifications necessitated by non-significant differences in physical characteristics of the fresh fuel from the previous fuel;" and that (3) [Comenters 9 (LeBoeuf) and 18A(CP8L) agree] example (viii)beexpandedtoincludeadjustmentsin ownership shares when there are "new co-owners which are subsidiaries, parents or affiliates of existing co-owners, so long as there is no alteration of the lead licensee's control over construction or operations." Commenter 12 (BG&E) states that example (vi) in the "not likely" category specifies a comparison of amendment requests vis-a-vis the Standard Review Plan (SRP) that may be overly restrictive on older plants. It suggests that any comparison be made to either original or current licensing bases rather than the SRP. 2.3 Cements on both sets of examples Comenters 3 (UCS) and 19 (Author unclear) argue that the word "significant" in the examples should be defined so as not to leave " critical decisions to the unreviewable judgment of the staff." Comenter 6 (HL&P) requests that the guidance embodied in both sets of examples should not only be referenced in the procedures of the office of Nuclear Reactor Regulation, but that it should also be formally transmitted to all licensees in the form of a generic letter, regulatory guide, or other such document.

o 7 3. Classification of Decisions Coments Comenters 3 (UCS) and 14 (Maine) argue that the standards pose complex questions that " require a level of analysis that goes for beyond the initial sorting of issues that Congress authorized." They repeat an argument that comenter 3 had made, when the standards were published as a proposed rule, namely, that "the use of these standards cannot help but require the NRC staff to make an initial determination, well before the fomal hearing (if any) is held, of the health and safety merits of the proposed license amendment." And they argue that Congress did not authorize NRC to make such a determination in advance of the hearing on the merits. (Comenter 7 (THIA) agrees with this argument). In sum, these comenters would like to see standards that simply allow for the sorting of issues, rather than, as they argue, standards that allow the staff to determine issues which are " virtually the same" as those it determines when deciding whether or not to grant the license amendment. In this same vein both comenters argue that the standards contravene Congress' intent in that the Comission does not avoid resolving " doubtful or borderline cases with a finding of no significant hazards consideration." 4 Rerackings Comments Comenters 1 (OCRE), 3 (UCS), 7 (TMIA),10 (ISAS),11 (SAPL),14 (Maine),and19(Authorunclear)statethatrerackingsshouldbe considered amendments that pose significant hazards considerations, in light of the Comission's past practice and the understanding of Congress that the practice would be continued.

O The industry commenters 13 (EEI) and 16 (YAEC), for instance, agrees with the Comission's position, including the need for a staff report that would provide the basis for a technical judgment that an amendment request to expand a specific spent fuel pool may or may not pose a significant hazards consideration. 5. Irreversible Consequences Coments Comenter 7 (TMIA) notes that license amendments involving irreversible consequences (such as those permitting an increase in the amount of effluents or radiation emitted from a facility or allowing a facility to operate for a period of time without full safety protections) require prior hearings so as not to foreclose the public's right to have its views considered. This commenter is especially concerned about the TMI-2 clean up and about the TMI-1 steam generator tube repairs. It argues that 9 60.92(b) (which requires Comission " sensitivity" to this issue and which is buffered by the term "significant")contravenesCongress' intent. Comenter 20 (NY) requests that a State and the public should have a say about any amendment request involving an environmental impact before NRC issues an amendment. It wants more from the Commission than the statement in the rule that the "Comission will be particularly sensitive" to such impacts. Commenter 5 (D&L) requests that the same argument that applies to " stretch pcwer" situations should apply to situations which involve " irreversible consequences", such as increase in the amount of effluents or radiation emitted from a facility. It argues that, if the discharge

O 9-or emission level evaluated in the Safety Analysis Report, the Final Environmental Statement or generically by rulemaking (i.e., Part 50, Appendix I) would equal or exceed the proposed level of emissions, any permanent increase up to that level should not be considered likely to involve significant hazards considerations, and that any temporary increase within generally recognized radiation protection standards, such as those in 10 CFR Part 20, should be treated similarly. Moreover, it requests that these situations should be included as examples in the "not likely" category. On the other hand, comenter 7 (TMIA) argues that ifcense amendments involving temporary waiving of radiation release limitations (so that airborne radioactive waste can be released at a rate in excess of that which is allowed to be released -- as was an issue in the Sholly decision),shouldinvolvesignificanthazardsconsiderationsand, consequently, a prior hearing. 6,. Emergency Situations 6.1 Coments Commenter 17 (NU) requests that the term " emergency" be deleted from the rule because it could be confused with a different use of this term in a final rule issued on April 1, 1983 (48 FR 13966) involving the applicability of license conditions and technical specifications in an emergency. See il 50.54(x) and 50.72(c). It suggests that the phrase " warranting expedited treatment" or some similar phrase could be used instead of the term " emergency." Commenters 2 (Lowenstein) and 6 (HL&P) request that 9 50.91(a)(5) (involving emergency situations) be clarified to make clear that an

s emergency situation can exist whenever it is necessary that a plant not in operation return to operation or that a derated plant operate at a higher level of power generation. Comenter 2 argues that unnecessary economic injury or impact on a generating system should also be classified as an emergency situation. It recomends that 5 50.91(a)(5) be amended by inserting, af ter the words "derating or shutdown of the nuclear power plant" the words " including any prevention of either resumption of operation or increase in power output." Comenter 6 concurs with these words and would add the words "up to its licensed power level" after " power output." Commenter 4 (S&W) suggests that an emergency situation should also exist where a shutdown plant could be prevented from starting up because the Commission had failed to act in a timely way. Commenters 5 (D&L), 16 (YAEC) and 21 (PGE) agree with these comments, arguing that emergency situations should (1) be broadly defined, (2) be available when a plant is shutdown and cannot startup without a license amendment, and (3) include situations where an amendment is needed (as is the case with exigent circumstances) to improve public health and safety. 6.2 Coment Commenter 12 (BG&E) requests that the rule specify what is meant by a " timely application" in i 50.91(a)(5). That paragraph states that licensees should apply for license amendments in a " timely fashion" and that the Comission will decline to dispense with notice and comment

o procedures, "if it determines that the licensee has failed to make a timely application for the amendment in order to create the emergency and to take advantage of the emergency provision." 6.3 Comments Commenter 17 requests that NRC explain how it will process an amendment request that involves both an emergency situation and a significant hazards consideration. It suggests that, in this unlikely case, the Commission might issue an immediately effective order under 10 C.F.R. 2.204. 7. Exigent Circumstances 7.1 Comments Commenter 2 (Lcwenstein) suggests that the two examples of exigent circumstances are unnecessarily narrow because both involve potentially lost opportunities to implement improvements in safety during a plant outage. The commenter recommends that the Commission make clear that these examples were not meant to be limiting and that exigent circum-stances can occur whenever a proposed amendment involves no significant hazards consideration and the licensee can demonstrate that avoiding delay in issuance will provide a significant safety, environmental, reliability, economic or other benefit. Commenter 12 (BG&E) requests that exigent circumstances include situations (1) where a licensee's plant is shutdown and the licensee needs an amendment to startup and (2) involving significant hazards considerations. The commenter argues that both such situations entail delay and a significant financial burden an licensees.

s 7.2 Comments Comenter 4 (S&W) states that the public notice procedures for exigent circumstances should be no different from those for emergency situations. Commenters 5 (D&L) and 17 (NU) oppose the use of press releases or display advertising in local media, arguing that such notices would unnecessarily elevate the importance of amendment requests. Commenter 17 (NU) recommends that, if NRC believes that it must issue a press release, it consult with the licensee on a proposed release before it acts. It also requests that NRC inform the licensee of the State's and the public's comments and that it promptly forward to the licensee copies of all correspondence. Comenter 5 (D&L) and 17 (NU) also oppose the toll-free " hot-line" in exigent circumstances, arguing that the concept implies imminent danger or severe safety concerns which normally will not be present. Comenter 5 requests, instead, the use of mailgrams or overnight express. It also recommends, if a hot-line system is implemented, that the system should be confined to extraordinary amendments involving unique circum-stances. To ensure the accuracy of transcription of the coments received, commenter 5 suggests that the coments should be recorded and retained to ensure that a verbatim transcript could be produced if needed. Commenter 17 requests that copies of the recorded comments should be sent to the licensee. Commenter 12 (BG&E) suggests that the rule specify the geographical area to be covered by a notice to the media.

o 7.3 Comment Commenter 18A (CP&L) notes that exigent circumstances can arise aftcr the publication of a Commission notice offering a normal public comment period on a proposed determination. It requests that in these circumstances the rule should make clear that an expedited schedule would be established for receiving public comments and issuing the amendment. 8. Retroactivity Comments Commenters 2 (Lowenstein) requests (and Commenter 17 (NU; would agree) that Q 2.105(a)(4)(1) -- which explains how NRC may make an amendment immediately effective -- be clarified to make clear that NRC will not provide notices of proposed action on amendment requests it received before May 6,1983 (the effective date of the rule) that do not involve significant hazards considerations. Commenter 2 suggests that the Commission should publish instead notices of issuance of amendments pursuant to 5 2.106. Commenter 18A (CP&L) suggests expedited treatment for amendment requests received before May 6, 1983, when these relate to refueling outages scheduled by licensees before that date. 9. Notice and Consultation Procedures 9.1 Comments Commenter 5 (D&L) proposes the following changes (endorsed by commenter 18A (CP&L)) to the notice procedures to shorten the comment period and to clarify the method of publication: Routine, minor amendments should be published in the monthly Federal Register compilation only and a ten-day comment period 1 accorded. There should be no individual Federal Register notice in ) routine cases. An individual notice should be published in the

% Federal Register for requests that are not routine, such as for instance, steam generator modifications or reracking. These requests could also be published in the monthly compilation, but the comment period should run from the date of the individual notice. As is the case for routine amendments, we propose a ten-day comment period. In exigent circumstances, which could encompass either routine or non-routine requests, we propose that notice be published individually in the Federal Register and that a reasonable comment period be accorded taking into account the facts of the particular case. The commenter argues that expedited notice procedures would satisfy the statutory requirements, would eliminate a large source of delay, and would be recognized by the courts, since expedited procedures are the appropriate solution when notice and hearing are statutorily required but time is of the essence. Commenters 8 (AIF) and 12 (BG&E) are also concerned about the potential for delay in the new notice procedures. Connenter 12 requests that the rule indicate the normal time NRC needs to process routine and emergency applications. 9.2 Comments Commenter 15 (Maine) argues that the consultation procedures created by the interim final rule do not meet Congress' intent because they leave it up to a State to decide whether it wants to consult based on the licensee's amendment request and NRC's proposed determination. It seeks " formal, active consultation" (before NRC makes its proposed determination and publishes a Federal Register notice) through the " scheduling of formal discussions between the State and the NRC on the proposed determination, with the foregoing of such only upon written waiver of the State." Additionally, it seeks incorporation of the State's comments in the Federal Register notice together with an

o explanation of how NRC resolved these. Finally, it requests that NRC always teiephone State officials before issuing an amendment, rather than merely " attempting" to telephone them as, it states, the rule provides. Commenter 20 (NY) is satisfied with the notice and consultation procedures, stating that "the regulations give the State no more authority in regulating the operation of the reactor then it had in the past, but they serve notice en the reactor operator that the State is an interested party in all nuclear operations within the State."

10. Notices in Emergency Situations or Exigent Circumstances Comment Commenter 2 (Lowenstein) recommends that the Commission clarify that it intends to issue a post notice under l 2.106 rather than a prior notice under 5 2.105 when it has determined that there is an emergency situation or exigent circumstances and that an amendment involves no significant hazards consideration. The commenter suggests that, in 6 2.105(a)(4)(ii) the words "it will provide notice of opportunity for a hearing pursuant to i 2.106" should be deleted and the words "instead of publishing a notice of proposed action pursuant to this section, it will publish a notice of issuance pursuant to S 2.106" should be substituted.

11. Procedures To Reduce the Number of Amendments Comment Commenter 5 (D&L) suggests that many of the routine matters which require amendments should not be subject to the license amendment process. It argues that greater use should be made of 9 50.59 (involving changes, tests and experiments without prior Commission

a % approval, where these do not involve an unreviewed safety question or a technical specification incorporated in a license) for changes involving routine matters by not placing such changes into the technical specifi-cations and thereby avoiding the need to issue license amendments. Commenter 5 and Commenter 17 (NU) also generally endorse the Commission's proposed rule (published on March 30, 1982 in 47 FR 13369) that would reduce the volume of technical specifications now part of an operating license, thereby reducing the need to request license amendments. 12. License Fees Comment Ccmmenter 17 (NU) argues that licensees should not be assessed additional fees to finance activities involving determinations about no significant hazards considerations. It, states'that in a recent proposed rule (47 FR 52454, November 22,1982) NRC proposed to amend the existing regulations governing payment o# fees associated with, among other things, the processing of license amendment requests. The key element of the proposed changes relates to assessment of fees based upon actual NRC resources expended, rather than upon fixed fee for various classes of amendments. It gces on to note that, if the Part 170 changes are issued as proposed, after May 6,1983--the effective date of the interim final rule--NRC resources expended as part of the notice and State consultation process would be financed by the requesting licensee. It states that licensees would not be the " identifiable recipient of benefits" resulting from this more involved process; as such, licensees should not be assessed fees for any expenses resulting from the public

9 notice, State consultation, and other consequential or follow-up activities which may result. And it argues that the legislative history behind Public Law 97-415 makes it clear that licensees are not the prime beneficiaries of this new license amendment process. 13. Regionalization Comment Commenter 17 (NU) recommends that, before NRC's headquarters transfers authority to the Regions to process " routine" amendments, a clear understanding be reached among the licensee, the Region and NRC's ~ headquarters about the ground rules for what would constitute " routine" versus " complex" amendments and for the ways the amendments would be processed from the times they are requested, through notice and State I consultation, to their grant or denial. 14. Exemption Recuests Comment Commenter 17 (NU) is concerned that NRC might automatically consider exemption requests as license amendments. It believes that exemption requests need not automatically be considered license amendments, even though NRC has occasionally elected to notice such requests in the Federal Register or has assigned license amendment numbers to the issuing documents. l .}}