ML20215G255
| ML20215G255 | |
| Person / Time | |
|---|---|
| Issue date: | 03/04/1987 |
| From: | Goldberg J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Arlotto G NRC - COMANCHE PEAK PROJECT (TECHNICAL REVIEW TEAM) |
| Shared Package | |
| ML20213F337 | List: |
| References | |
| FOIA-87-289 NUDOCS 8703180037 | |
| Download: ML20215G255 (2) | |
Text
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WAR 4 1987 MEMORANDUM FOR:
Guy A. Arlotto, Chairman l
Comanche Peak Report Revier Group (CPDRG)
FROM:
Jack R. Goldberg, Deputy Assistant General Counsel for Enforcement Office of the General Counsel
SUBJECT:
APPLICABILITY OF FINAL SAFETY AFALYSIS i
REPORT TO PLANT UNDER CONSTRUCTION By your Memorandum to me dated February 25, 1987, you requested an opinion from OGC about the use of the Final Safety Analysis Report (FSAR) in the inspection and enforcement process for a facility under construction.
Some brief background will be helpful to a discussion of this issue.
A Notice of Violation must be premised upon the failure of a licensee (which includes the holder of a construction permit) to adhere to the Commission's regulations or to the terms of any license or order to which the licensee is subject.
For a facility which is under construction, the licensee must adhere to the terms of its construction permit.
A construction permit is issued to a licensee following the submittal by the licensee of an application to the agency.
Part of that app!! cation includes a Preliminary Safety Analysis Report (PSAR).
See 10 C.F.R. I 50.34(a).
The PSAR is reviewed by the -
staff in considering the licensee's application for a construction permit and, i
when a construction permit is issued, the NRC staff makes a finding that the application for the construction permit, including the PSAR, complies with the rules and regulations of the Commission.
Consequently, the PSAP is "ap-proved" by the staff upon issuance of a construction permit to the licensee.
Ilowever, neither the construction permit nor any regulation of the NRC requires the licensee to adhere to all representations made by the licensee in the PSAP.
These representations have become to be known as the licensee's
" commitments".
Consequently, should a licensee fail to adhere to the commit-ments it has made in its PSAR during the course of its construction activi-ties, a Notice of Violation is inappropriate (except in unusual cases in which the failure constitutes violation of the requirements of the construction per-mit).
Rather, the agency should issue to the licensee a Notice of Deviation describing the licensee's failure to satisfy a commitment and requesting the licensee to provide a written explanation or statement describing the correc-tive steps taken or planned, the results achieved, and the date when correc-tive action will be completed.
See 10 C. F. R.
Part 2, Appendix C,Section V.E. (2).
In summarv, it is 'fre construction permit and the PSAlt which should govern inspection and enforcement activities of a facility under construction.
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i s The Final Safety Analysis Report (FSAR) is a document required of an applicant for an operating license.
See 10 C.F.R.
S 50.34(b).
Prior to issuance of an operating license, there is no legal basis for a Notice of Viola-tion tied directly to the FSAR.
However, it should be recognized that Notic-es of Deviation from licensee commitments made in its FSAR may be appro-priate prior to the issuance of the operating license.
Given the complex nature of a nuclear facility start-up, the staff may review and approve por-tions of the FSAR, or other licensee proposals, prior to the issuance of an operating license in areas such a preoperational testing or plant start-up.
Such programs would then be in the nature of licensee commitments and could form the basis for the issuance of Notices of Deviation.
The FSAR is " approved" by the staff when it issues an operating license for i
the facility.
There is no Commission regulation or other requirement which explicitly requires a licensee to adhere to the representations made in its FSAR following issuance of an operating license.
Consequently, Notices of Violation tied directly to the FSAR remain inappropriate.
However, a failure to adhere to FSAR commitments after issuance of the operating license may form the basis for a violation of 10 C.F.R. 6 50.59, which governs changes to l
the facility, procedures, tests and experiments described in the FSAR, since
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the provisions of 10 C.F. R. 6 50.59 become effective upon issuance of an opearting license.
Also, as was the case prior to issuance of an operating license, Notices of Deviation would be appropriate for those instances where a licensee deviates from commitments made in the FSAR.
In conclusion neither the PSAR nor the FSAR may directly form the basis for the issuance of a Notice of Violation.
Jack R. Goldberg, Deputy Assistant General Counsel for Enforcement Office of the General Counsel ec:
C. Heltemes, Jr., AEOD C. Paperiello, Reg. til R. Erickson, NMSS DISTRIBUTION:
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