ML20212E216
| ML20212E216 | |
| Person / Time | |
|---|---|
| Issue date: | 08/26/1997 |
| From: | Callan L NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | |
| References | |
| SECY-97-195, SECY-97-195-01, SECY-97-195-1, SECY-97-195-R, NUDOCS 9711030105 | |
| Download: ML20212E216 (36) | |
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RULEMAKING ISSUE (NEGATIVE CONSENT)
Auaust 26. 1997 SECY-97-195 E@:
The Comissioners EB2:
L. Joseph Callan Executive Director for Operations
SUBJECT:
RULEMAKING PLAN: 10 CFR PART 76, " CERTIFICATION AMENDMENT PROCESS" PURPOSE:
l To inform the Comission that the EDO intends to approve the attached Rulemakii,g Plan to emend 10 CFR Part 76 to correct the deficiencies and inconsistences in the certificate amendment process through rulemaking.
1 1
IS1QF:
Since the initial certification of the Gaseous Diffusion Plants (GDPS), the operator of the GDPs, the United States Enrichment Corporation (USEC), has requested several amendments to thoso certificates.
In implementing the certificate amendment process described in S 76.45, the NMSS staff has identified several deficiencies that should be corrected.
BACKGROUND:
In 1994, 10 CFR Part 76, " Certification of Gaseous Diffesion Plants," was codified to provide the regulatory process by which the NRC would assume regulatory authority for the operation of the Portsmouth and Paducah Gaseous Diffusion Plants (GDPs) that had operated safely for many years under the authority of the Department of Energy. The initial certificates of compliance authorizing continuing operation of the GDPs under NRC regulatory oversight were issued on November 26, 1996, and became effective on March 3, 1997, at which time the GDPs came under NRC authority.
When Part 76 was initially CONTACT:
NOTE:
To BE MADE PUBLICLY AVAILABLE Charles W. Nilsen, RDB/DRA/RES WHEN THE FINAL SRM IS MADE AVAILABLE (301) 415-6209 s
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The Comissioners promulgated, the certification process was to be re)eated annually.
The recertification period has recently been extended, )y Congressional action and implementing rulemaking, to allow for up to 5 years between recertifications.
DISCUSSION:
Although Part 76, presently, provides a 3rocess for aniding the certificate, the process is not clearly defined and tie need for numerous and timely amendments was not ad?quately anticipated.
Only very limited amendments to the certificate were expected because of the requirement for complete recertification annually.
(The GDP certificates have already been amended severai times in the first several months of GDP operation under llRC regulatory authority and currently there are 17 amendment requests under NRC review or in preparation by the Corporation.) There are two principal deficiencies in the certificate amendment orocess:
While the process for both "signifimt" and "not significant"1 e
emendments provides an opportunity f r the public to petition the Comission for review of the Director's decision, only requests for "significant" amendments are published in the Federal Reaister. which provides an opportunity for public review and coment during NRC's review of the request.
Amendments that are "not signi#icant" are not noticed in advance for public coment.
There is also an ambiguity in who may petition for Comission reviet One interpretation of MEMO to Carl J. Paperiello fium Elizabeth 0. Ten Eyck, dated January 29, 1997.
Proposed activities shall be determined to be not significant if all the following conditions are met:
I.
There is no change in the types or significant increase in the amounts of any effluents that may be released offsite.
II.
There is no significant increase in individual or cumulative occupational radiation exposure.
III. There is no significant construction impact.
IV.
There is no significant increase in the potential for, or radiological or chemical consequences from, previously analyzed accidents.
V.
The proposed changes do not result in the possibility of a new or different kind of accident.
VI.
There is no significant reduction in any margin of safety.
VII.
The proposed changes will not result in an overall decrease in the effectiveness of the plant's safety, safeguards or security programs.
Any proposed activities not meeting all of the above criteria shall be deemed to be significant.
.c The Comissioners S 76,62(c) is that only individuals who provided comments on the initial certificate application may petition for review: S 76.62(c) does not 1
explicitly address the certificate amendment process. Another possible interpretation is that only those who comented on a particular amendment can petition for review.
This could be inter the public has no petition rights for "not significant"preted to mean i
amendments o
because there is no public comment period provided for in the.
regulations.
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In addition, the existing regulatory framework of Part 76 does not grovide for immediately effective amendment of a certificate for either significant" or "not significant" activities.
For "significant"
-amendments, there is an initial 30 day coment period when the application for amendment is received and published in the Federal Reaister.
This initial 30-day notice is not required for "not significant" amendments. Amendments can be then be 1ssued after the NMSS staff completes their review and the recommendation for approval of the amendment is published in the Federal Reaister giving the public an opportunity (15 days) to petition the Comission for review of the recommended amendment action.
Therefore, the earliest the staff can issue an effective amendment is 45 days for a "significant" action and 15 days for a "not significant" action. Neither "significant" nor "not significant" amendments can be issued imediately.
A change is proposed
-to add an "imediate effective amendment" process so that the existing regulatory process does not cause undue operational difficulty for the GDPs when certificate amendment action may be a preferred option to
" enforcement discretion" or " commission order " Use of an "imediate effective amendment" arocess would mainly be focused on adrainistrative types of amendments w11ch are not safety related but, by continued plant operation, violation could be defined as willful.
Although emergency amendments should not be needed routinely, the staff does need this flexibility to issue immediately effective amendments as the diffusion process does not lend itself to rapid partial or full shutdown. Under the proposed process for "immediate effective amendment" a petition for l
review may still be filed requesting the Commission set aside or modify an amendment action.
The regulations need to be corrected or clarified by revising Part 76.
In' summary, it is expected that a proposed rulemaking revising the certificate amendment process will include prescriptive procedures specific for three
. different certificate amending processes.
A "not significant" amendment process action will be simil6r to the process for all types of. amendments processed under 10 CFR 70.34 for fuel cycle
-facilities.
The amendment application is-received, reviewed, and the amendment is issued if found to be supported by the application.
The difference is that under Part 76 the amendment action will also be published in the Federal Reaister and subject to a petition for review requesting the Comission to set aside or modify the amendment action.
The current regulations in Part 76 contain provisions for publication of notice of an amendment action and for petition for review of the amendment action.
The Comissioners -
A "significant" amendment processing action will begin with publication of the application for amendment in the Federal Reaister providing 30 days for public s
coment. This is similar to the initial notification process for public comment on amendments processed under 10 CFR 50.91 for nuclear power plants.
-In addition, a public meeting may also be scheduled on the amendment application if the Director. NMSS, determines that a meeting is in the public interest. The ensuing amendment processes are the same as for the "not significant" amendment process above (publication in the Federal ReaistgC and opportunity to petition for review).
A new "immediate effective amendment," process will also be added to process 4
applications found to be "significant" or "not significant" but requiring 1
1 mediate implementation.
This process is again similar to the normal amendment process under 10 CFR 70.34 for fuel cycle facilities.
The difference is that the amendment will be published for 30 days public coment after issuance and the amondment will subject to a petition for review requesting the Comission to set aside or modify the amendment action.
It is also similar to the process under 10 CFR 50.91(a)(6) for exigent circumstances.
COORDINATION:
The Office of the General Counsel has na legal objection to the actions 3roposed in the Rulemaking Plan.
The Office of the Chief Financial Officer las no objection to the resources estimate contained in this pa)er. The Office of the Chief Information Officer has reviewed the rulemacing plan for information technology and-information management implications and concurs in it.
RECOMMENDATION:
Unless the Commission directs otherwise,10 days from the date of this paper, i
1 will approve the Rulemaking Plan and direct the staff to begin developiaent of a direct final rule.
h L.JfjephCallan Exec &ive Director for Operations
Attachment:
l Rulemaking Plan SECY NOTE:
In the absence of instructions to the contrary, SECY vill notify the staff on Thursday, September 11, 1997 that the Commission, by negative-3 consent, assents to the action proposed in this paper.
DISTRIBUTION:
Commissioners OPA EDo oGC oCA REGloN III oCAA ACRS SECY
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RULEMAKING PLAN I
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1 RULEMAKING PLAN PART 76 CERTIFICATION AMENDMENT PROCESS 10 CFR PART 76 Lead Office:
Office of Nuclear Regulatory Research Staff
Contact:
Chuck Nilsen, RDB/DRA/RES
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M. Knapp
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C. Paperiello, NMSS
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L. Josep 1 Callan, EDO Date i
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a RULEMAKING PLAN RESPONSE.T0 NMSS REQUEST FOR RULEMAKING 10 CFR PART 76 PART 76 CERTIFICATION AMENDMENT PROCESS Reaulatory Issue -
In 1994, 10 CFR Part 76, " Certification of Gaseous Diffusion Plants" was codified to provide the regulatory process by which the NRC would asseme regulatory authority for the operation of the Portsmouth and Paducah Gaseous Diffusion Plants (GDPs) that had operated safely for many years under the authority of the Department of Energy.
The initial certificates of compliance 4
authorizing continuing operation of the GDPs under NRC regulatory oversight were-issued on November 26, 1996, and became effective on March 3, 1997, at which time the GDPs came under NRC authority. When Part 76 was initially promulgated, the certification process was to be repeated annually.
The recertification period has recently been extended, by Congressional action and implementing rulemaking, to allow for up to 5 years between recertifications.
Since the initial certification of the GDPs, the operator of the GDPs, the United States' Enrichment Corporation (USEC), has requested several amendments to those certificates, in implementing the certificate amendment process described in 6 76.45, the NMSS staff has identified several deficiencies that should be corrected.
Existino Reoulatory Framework Although Part 76 presently provides a process for amending the certificate, the process is not clearly defined and the need for numerous and timely amendments was not adequately anticipated. Only very limited amendments to the certificate-were expected because of the requirement for complete recertification annually.
There are two principal deficiencies in the certificate amendment process; While the process for both "significant" and "not significant"'
amendments provides an opportunity for the public to petition the-Commission for review of the Director's decision, only requests for "significant" amendments are published in the Federal Reaister, which provides an opportunity for public review and comment during NRC's review of the request.
Amendments that are "not significant" are not noticed in advance for public comment.
There is also an ambiguity in who may petition for Commission review.
One interpretation of 6 76.62(c) is that only individuals who provided comments on the initial
--certificate application may petition for review; 6 76.62(c) does not
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4 explicitly address the~ certificate amendment process. Another possible interpretation is that only those who commented on a particular amendment can petition for review. This could be interpreted to'mean the public has no petition rights for "not significant" amendments because there is no public comment period provided for in the regulations.
In addition, the existing regulatory framework of Part 76 does not provide for immediately effective amendment of a certificate for either "significant" or "not significant" activities.
For "significant" amendments, there is an initial 30-day comment period when the application for amendment is received and published in the Federal Reaister. 1his initial 30-day notice innot required for "not significant" amendments.
Amendments can be then be issued after the NMSS staff completes their review and the recommendation for approval of the amendment is published in the Federal Reaister giving the public an opportunity (15 days) to petition the Commission for review of the recommended amendment action.
Therefore, the earliest the staff can issue an effective amendment is 45 days for a "significant" action and 15 days for a "not significant" action.
Neither "significant" nor "not significant" amendments can be issued immediately.
A change is proposed to add an "immediate effective amendment" process so that the existing regulatory process does not cause undue operational difficulty for the GDPs when certificate amendment action may be a preferred option to
" enforcement discretion" or " commission order." Use of an-"immediate effective amendment" process would mainly be focused on administrative types of amendments which are not safety related but, by continued plant operation, violation could be defined as willful. Although emergency amendments should not be needed routinely, the staff does need this flexibility to issue immediately effective amendments as the diffusion process does not lend itself to rapid partial or full shutdown.
Under the proposed process for "immediate effective amendment" a petition for review may still be filed requesting the Commission set aside or modify an amendment action.
The: regulations need to be corrected or clarified by revising Part 76.
How the Reaulatory Problem Will be Addressed by RulemahiDS Part 76 should be amended to correct the deficiencies and inconsistences in the certificate amendment process through rulemaking.
Section 76.45 will be revised as a stand-alone certificate amen 6nent process and will not refer to the process for initial certification.
The processes for "significant" and "not significant" amendment actions will be clarified by providing a prescriptive amendment reocess for each 4
action.
A process for an immediately effective "significant" or "not significant" amendment of a certificate will be added to f 76.45 to assure licensing action can be taken in a timely manner.
l The criteria for persons who are eligible to file a petition for review of a certificate for amendment will be redefined to include any person whose interest may be affected.
The time periods associated with filing petitions for review will be extended to better accommodate the process for public participation.
Rulemakino 00tions One' option is to not change the process for amending certificates.
Part 76 does contain a process for certificate amendment and the GDP certifiutes have been amended several times in tiw first 2 months of GDP operation under NRC regulatory authority. Currently tiiere are 17 amendment requests under NRC review or in preparation by the Corporation. Although several amendments have been noticed, there have been no petitions for review or comments received from the public.
In regard to the need for immediately effective amendments the terms and conditions of a certificate of compliance or approved compliance plan are subject to Commission modification by reason of orders issued in accordance with the Act (see f 76.70).
The second option is to amend the certificate amendment process of 6 76.45 to correct deficiencies.
Although many variations for amending a certificate could be developed, the one being considered parallels the current Part 76 process but removes the ambiguity.
(See User Need Memorandum, C.J. Paperiello to D.L. Morrison, dated March 3, 1997, Attachment A, and a USEC transmittal of February 2, 1997. Attachment B, concerning rulemaking to revise the certificate amendment process.)
Imoacts on the Corooration A revised certificate amendment process that is prescriptive for both "significant" and "not significant" amendments and is nonambiguous will provide a more focused and publicly acceptable and open regulatory process.
On'the other hand, clarification of who can petition the Commission to review an amendment and extension of the period for requesting review may result in more petitions being filed and, therefore, may require the Corporation to expend more rtsources in responding to petitions.
The no-change option would maintain existing deficiencies and ambiguities, thereby possibly delaying and limiting amendments reqiested by the Corporation.
Benefit A revised process for certificate amendment that provides ntore focus with less ambiguity, should be a more efficient process.
Clarification of who can petition the Commission to review an amendment action and extension of the time frame will provide greater opportunity for the public to participate in the amendment process. 1
The no-chango option would save current rulemaking resources at the expense of potential savings on_ future amendment actions.
Preferred 00tions The preferred option is to amend the regulations to 1) eliminate ambiguities,
- 2) better define the processes for "significant" and anot significant" amendments, 3) add a process for immediately effective amendments, and
- 4) improve the process for public participation.
(Attachment B is an early draft-of a proposed revision to 5 76.45.)-
Office of Genecal Counsel _Leaal Analysis The proposed rulemaking plan would clarify the process for amendments to the certificates of compliance.
This is a procedural rule which does not constitute a backfit under either 10 CFR SS 76.76 or 50.109, as appropriate, therefore no backfit analysis will be required.
There is no requirement for an environmental assessment for this amendment to a procedural rule. There are no new information collection requirements which would require an-analysis and submission of the information collection requirements to the Office of Management and Budget for approval in compliance with the Paperwork Reduction Act of 1980. 0GC has not identified any basis for a legal objection to the rulemaking plan.
Backfit Analysis The NRC has determined that the backfit rules for 10 CFR 50.109 and 76.76 do not apply to this rulemaking. Thus, a backfit analysis is not required for these amendments because they do not involve any provisions that would impose backfits as defined in 10 CFR_50.109(a)(1) and 76.76(a)(1).
Aareement State Imolementation Issues None. Agreement States do not review or inspect uranium enrichment facility programs as regulated by the Commission.
Ma.ior Rule No Sucoortina Documents-Neede.d There'are no suppnrting documents.
Issuance by Executive Director for Ooerations or Commission This Rulemaking is considered to be an action of a minor policy to be issued by the Executive Director of Operations. _-
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Resources-Needed to Comolet'e Rulemakina It' is anticipated that 0.5-NRC FTE's will be needed to complete this action
'(0.3 RES, 0.1 NMSS and 0.1 all other).
Resources-to complete and_ implement the _ rulemaking are included in the FY 1998 budget.-
Staff Level Workina Grouo-Concurrina Official
~C. W. Nilsen-M. R. Knapp M. L.-Horn.
C. J. Paperiello K. L. Winsberg S. A. Treby
'Manaaement Steerina Group
-None Public Particioation
-This Rulemaking Plan will be placed on an electronic bulletin board following EDO approval and Commission review.
Schedule -
Rulemaking Plan to the EDO August 1997 Proposed Rulemaking Package to the EDO September 1997 Final Rulemaking Package to the EDO December 1997 I'
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i ATTACHMENT A USER NEED MEMORANDUM FROM C.J. PAPERIELLO TO D.L. MORRISON DTD 3/3/97 i
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UNITED STATES NUCLEAR REGULATORY COMMISSION if WASHINGTON, D.C. 20nM001
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March 3, 1997 MEMORANDUM T0: David L. Morrison, Director Office of Nuclear Regulatory Research L M(Ij ( @ *
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FROM:
Carl J. Paperiello, Director
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Office of Nuclear Material Safety and Safeguards
SUBJECT:
USER NEED MEMORANDUM FOR 10 CFR 76.45 The initial Certificates of Compliance authorizing the continuing operation of the Portsmouth and Paducah Gaseous Diffusion Plants under NRC regulatory oversight have been issued. The United States Enrichment Corporation has requested several amendments to those certificates.
In implementing the amendment process described in 576.45, the staff has identified several required rule changes that need to be corrected on an expedited basis.
The rule, as written, does not provide a mechanism for making an amendment immediately effective.
Currently, once the staff has completed its review, the actual amendment cannot be issued until after the public has an-opportunity to petition the Commission for review of the recommended approval.
The earliest the staff can issue the amendment is 15 days after notice of the recommendation for approval appears in the Federal Reaister.
There is also an ambiguity in who can petition for Commission review.- While significant amendments -are noticed in the Federal Reaister and-include an opportunity for public comment, amendments that. are not significant are not noticed in advance and there is no public comment opportunity.
Furthermore, 576.62(c) only allows those individuals who provided comments to petition for review.
Both of these situations need to be corrected and/or clarified by revising Part-76.
-As originally written 576.62(c) envisioned an annual certification process, however, the rule now provides for a five-year certification schedule.
I request that Part 76 be modified to correct the deficiencies discussed above and provide a certificate amendment process similar to that in Part 70.
The attachment contains preliminary language for your consideration in revising 576.45.
I request that the Office of Nuclear Regulatory Research initiate a rulemaking to revise the process for amending the certificates issued under Part 76.
Revising the Part 76 amendment process has a high priority and should be completed on an expedited basis, CONTACT:
Merri Horn, NMSS/FCSS 301-415-8126
)
a 676.45 Aco_11 cation for amendment of certificate.
(a)
Contents of amendment aDolication.
in addition to the annual application for certification submitted pursuant to 576.31, the Corporation may at any time apply for amendment of the certificate to cover proposed new or modified activities.
The amendment application should contain sufficient information for the Director to make findings of compliance or acceptability for the proposed activities as required for the original certificate.
(b)
Oath or affirmation.
An application for an amendment of the certificate of compliance must be executed in a signed original by the Corporation under oath or affirmation.
(c)
Notice for nublic commen1 Upon receipt of the Corporation's application for amendment of the certificate, the Director will determine whether the proposed activities are significant.
If the Director determines that the acti/ities are not significant, the Director will, af ter appropriate review, issue a decision pursuant to subparagraph (d).
If the Director determines that the activities are significant, the Director shall publish in the Federal Reaister:
(i) A notice of the filing of the amendment application (specifying that copies of the application, except for Restricted Data, Unclassified Controlled Nuclear Information, Classified National Security Information, Safeguards Information, Proprietary Data, or other withholdable information will be made available for the public inspection in the Commission's Public Document Room at 2120 L Street, NW. (Lower Level), Washington, DC, and in the local public document room at or near the location of the plant);
(ii) A notice of opportunity for written public comment on the amendment application; and (iii)
The date of any scheduled public meeting regarding the amendment application.
A public meeting ray be held on an amendment application if the Director, in his or her discretion, determines that a meeting is in the public interest with respect to a decision on the amendment application.
(iv)
When the Director finds that an emergency situation exists, the Director may issue an amendment to the certificate, involving proposed activities considered to be significant, without prior notice and opportunity for public comment.
In such a situation the Director will publish a notice of issuance, providing for public comment after issuance.
The Commission expects the Corporation to apply for certificate amendments in timely fashion.
It will decline to dispense with notice and comment if it determines that the Corporation has abused the emergency provision by failing to make timely application for amendment and thus itself creating the emergency.
Whenever an emergency situation exists, the Corporation must explain why this emergency situatioa occurred and why it could not avoid this situation, and the Director will assess the reasons for failing to file an amendment application sufficiently in advance of the event.
(d)
Issuance of_ amendment to certificate.
Upon a finding of compliance with the Commission's regulations for issuance of a certificate and/or approval
'of a compliance plan, the Director shall issue a written decision explaining the decision. The Director may issue an amendment to the certificate of compliance covering those areas where the Corporation is in compliance with applicable
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Commission requirements and approve a compliance plan for the remaining areas, if any,. of noncompliance.
The Director' tay impose any appropriate terms and 1
conditions.
The Director shall publish notice of the decision in the Federal Reaister.
Unless otherwise stated in the notice, the amendment and the j
Director's decision shall be final and effective upon issuance.
(e) Denial of _ amendment to certificate.
The Director may deny an application for an amendment to the certificate of compliance or not approve compliance plan upon a written finding that the amendmer.t application is in
-noncompliance with one or more of the Commission's requirements for the plant, or that the compliance plan is inadequate to protect the public health and safety or the common defense and security.
The Director shall publish notice of the decision in the Federal Reaister.
(f) Petition for review. The Corporation, or any person whose interest may be affected, may file a petition, not to exceed 30 pages, requesting review of the Director's decision.
This aetition must be filed with the Commission not later than 15 days after publ< cation of, the Faderal Reaister notice.
The Corporation may file a response to any petition for review, not to exceed 30 pages, within 10 days after the filing of the petition.
The Commission may adopt, by order, further procedures that, in its judgment', would serve the purpose of review of the Director's decision.
(g) Commission review. The Commission may adopt, modify, or set aside the findings, conclusions, conditions, or terms in the Director's decision and will state the basis of its action in writing.
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ATTACHMENT B 1
USEC TRANSMITTAL OF FEBRUARY 2,1997 f
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