ML20217J188
| ML20217J188 | |
| Person / Time | |
|---|---|
| Issue date: | 07/28/1997 |
| From: | Thadani A NRC OFFICE OF NUCLEAR REGULATORY RESEARCH (RES) |
| To: | Lieberman J, Olmstead W, Paperiello C NRC OFFICE OF ENFORCEMENT (OE), NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS), NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| Shared Package | |
| ML20217J182 | List: |
| References | |
| NUDOCS 9708140054 | |
| Download: ML20217J188 (16) | |
Text
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UNITED STATES g j t
NUCLEAR REGULATORY COMMISSION W ASHINGTON. D.C. 90fe4001
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July 28, 1997 HEMORANDUM TO: Carl J. Payeriello. Director Office of iuclear Material Safety and Safeguards James Lieberman Director Office of Enforcement William J. Olmstead. Associate General Counsel e for Licensing and Regulation Office of the General Counsel [
Jesse L. Funches- - -- O Chief Financial Officer y$
Anthony J. Galante W Chief Information Officer /) g Richard L. Bangart. Director Office of State Programs h'I g3fh Brenda Jo. Shelton, Chief Information and Records Management Branch n Office of Information Resources M a t FROM: Ashok C. Thadani. Director / e- -
Office of Nuclear Regulatory Res rch
SUBJECT:
RULEMAKING PLAN: CHANGES TO 10 CFR PART 72.-EXPAND APPLICABILITY TO INCLUDE CERTIFICATE HOLDERS AND APPLICANTS AND THEIR CONTRACTORS AND SUBCONTRACTORS Your concurrence is requested on the attached Commission pa)er transmitting a Rulemaking Plan that will make a number of changes to 10 CFR Part 72.
" Licensing Requirements for the Independent Storage of Spent Nuclear Fuel and High level Radioactive Waste " This Commission Paper and Rulemaking Plan were initially issued for concurrence on February 10, 1997, and are being reissued because a number of changes were made during the initial review. One of the significant changes was the elimination of consideration by the NRC to issue civil penalties on Part 72 certificate holders for serious violations. It is re uested that the Directors of the Program Offices obtain input from the Re ions on this rulemaking plan, if appro)riate. The sections in Part 72 af ected by these changes are listed in tie Appendix of the rulemaking plan attached.
The Commission's regulations at 10 CFR Part 72 were originally designed to provide specific licenses for the storage of spent nuclear fuel in an independent spent fuel storage installation (ISFSI). Later, these were y
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. C. J. Paperiello et al. 2 ,
amended to include the storage of high level waste (HLW) at a monitored retrieval storage (MRS) installation, in 1990, the NRC amended Part 72 to include a process for certifying spent fuel storage casks (Subpart L) and for granting a general license to reactor licensees using NRC certified casks (Subpart K) for storage of s Some Part 72 provisions for cask storage of spent fuel, pent nuclear fuel.e.g. the quality assurance requireme intended to apply Lv cusi certificate holders and applicants for cask certificates of compliance, as well as to holders of licenses and applicants for a license to store spent nuclear fuel at an ISFSt. Because some of the Part 72 requirements intended to 0#1v to certificate holders and applicants e of the requirement, the do NRC nothas clearly bring these had difficulty citingperseg cvtMetsk:holders O n the scop / applicants when such pers have violated those Part 72 requireme m . Presently, when the NRC discovers such a violation. It issues an administrative action in the form of a Notice of Nonconformance (NNC). The issuance of an NNC does not effectively convey that a violation of a legally binding recuirement has occurred. Since the current regulations do not clearly incluce these persons, the NRC has not taken enforcement action such as a Notice of Violation (NOV) against certificate holders and applicants and their contractors and subcontractors when such persons violated Part 72 requirements.
On May 9, 1996, the Office of Nuclear Materials Safety and Safeguards requested that the Office of Nuclear Regulatory Research initiate rulemaking to correct this weakness in the current regulations.
The following is a summary of this request:
1.
Title:
Rulemaking Plan: Changes to 10 CFR Part 72. " Expand Applicability to include Certificate Holders and Applicants and Their Contractors and Subcontractors"
- 2. Task Leader: A, J. DiPalo, RES/DRA - 415-6191
- 3. Workina Grono: G. Cant. OE P. Brochman NHSS '
N. Jensen 0GC
- 4. Steerina Groun: No
- 5. Enhanced Public Particination: No 6.- Comnatibility for Aareement States: No
- 7. Reauested Comoletion Date: Two weeks from the date of this memorandum /[ ql)
- 8. Reauested Action: Office Concurrence Due to E00 8/15/97 i
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C, J. Paperiello et al. 3
- 9. . lesources and Coordination: It is anticiaated that 0.85 NRC FTEs will je needed to complete this action (0.45 RES. 0.2 NHSS, and 0.2 all other). These resources are within existing budget allocations. Copies ofthisconcurrencepackagehavebeenforwarded{otheChiefFinancial Of ficer. ACRS. ACNW and the IG for information.
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Attachment:
Commission Paper w/ enc 1. (
cc w/ encl.: H. T. Bell. OlG D. Meyer. ADM J. Larkins. ACRS & ACNW H. Miller. R(gion 1/ ORA L. Reyes, Region ll/0RA A. Beach Region lil/ ORA E. W. Hershcoff. Region IV/0RA
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COMMISSION PAPER
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[.QB: The Commissioners f.BQM: L. Joseph Callan Executive Director for Operations
SUBJECT:
CHANGES TO 10 CFR PART-72. EXPAND APPLICABILITY TO INCLUDE i CERTIFICA1E HOLDERS AND APPLICANTS AND THEIR CONTRACTORS AND l SUBCONTRACTORS l PURPOSE:
To inform the Commission that the E00 intends to sign the enclosed Rulemaking Plan to amend certain sections in 10 CFR Part 72. ' This rulemaking will place :
a)propriate Part 72 requirements on certificate holders ard applicants and e :
t1eir contractors and subcontractors.- ;
BACKGROUND:
-The Commission's regulations at 10 CFR Part 72 were originally designed to provide specific licenses for the storage of spent nuclear fuel in an independent-spent fuel storage installation.(ISFSI). Later, these were amended to include the storage of high level waste (HLW) at a monitored ;
retrieval storage (MRS) installation. In 1990, the NRC amended Part 72 to
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include a process for certifying spent fuel storage casks (Subpart L) and for-granting a general license to reactor -licensees using NRC certified casks !
(Subpart K) for storage of spent nuclear fuel. Some Part 72 provisions for
-cask storage of pent fuel, e.g., the quality assurance requirements, are, intended to apply to cask certificate holders and applicants for cask certificates of compliance, as well as to holders or 11 censes and applicants
-for;a license to store spent nuclear-fuel at an ISFSI. Because some of the Part 72 requirements intended to apply to certificate holders and applicants do not clearly bring these persons within the scope of the requirement,-the
'NRC has had difficulty citing-certificate holders / applicants when such persons have violated those Part 72 requirements. Presently, when the NRC discovers CONTACT: NOTE: TO BE MADE PUBLICLY AVAILABLE
-Anthony DiPalo, WMB/DRA/RES WHEN THE FINAL SRM IS MADE AVAILABLE (301) 415 6191-
4 4 The Commissioners 2 :
such a violation, it issues an administrative action ir the form of a Notice '
of Nonconformance (NNC). The issuance of an NNC does not effectively convey that a violation of a legally binding recuirement has occurred. Since the current regulations do not clearly incluce these persons. the NRC has not taken enforcement action such as a Notice of Violation (NOV) against certificate holders and applicants and their contractors and subcontractors when such persons violated Part 72 requirements.
! DISCUSSION:
The current regulations in 10 CFR Part 72 Subpart G explicitly apply only to licensees. The proposed rulemaking will primarily focus on amending regulations in Subpart G. " Quality Assurance." and Subpart L. " Approval of Spent Fuel Storage Casks." to explicitly make certificate holders / applicants subjecttothosereguirements. Some of the Subaart L regulations apply explicitly only to the applicant." e.g., 10 CF1 72.232, or to "the cask vendor." e.g. 10 CFR 72.234(d)(1), or are written in the passive voice so that it is not clear who is responsible for meeting the requirement e.g.,
10 CFR 72.236. This pr posed rulemaking will revise those sections of 10 CFR Part 72 listed in the pendix of this rulemaking plan to explicitly place requirements on certifi ate holders and applicants and their contractors and subcontractors. In addition to these changes, 10 CFR 72.11. "Com)leteness and Accuracy of Information," will be revised to include certificate lolders:
10 CFR 72.3 will be revised to incorporate a definition of " spent fuel storage cask": and a records and reports requirement similar to that in 10 CFR 72.80 will be placed in Subpart L.
The regulations that are the subject of this proposed rulemaking have not been made explicitly applicable to certificate holders / applicants. Accordingly.
NNCs have ty)ically been issued when these regulations are violated by certificate 1olders. This rulemaking will allow the staff to issue NOVs in these situations. The staff believes that issuance of NOVs will clearly identify that a violation of a legally binding requirement has occurred.
The purpose of this rulemaking is to clearly place appro)riate Part 72 requirements on certificate holders and applicants and t1eir contractors and subcontractors. This should enhance the staff's capability to take enforcement action in the form of NOVs rather than administrative action in i the form of a NNC when recuirements are violated that apply to certificate holders and applicants anc their contractors and subcontractors, COORDINATION:
The Office of the General Counsel concurs with the Rulemaking Plan. The
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Office of the Chief Financial Officer concurs that there will be no resource impacts. The Office of the Chief Information Officer concurs that there will be no information technology or management impacts.
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The Comissioners 3 i
2 RECOMMENDATION:
Note that it is my intention to approve the Rulemaking Plan within 10 days from the date of this paper unless otherwise directed by the Comission.
Enclosure:
Rulemaking Plan L. Joseph Callan Executive Director for Operations 1
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I RULEMAKING PLAN
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l RULEMAKING PLAN L' CHANGES TO 10 CFR 72 ;
1 Lead Office: Office of Nuclear Regulatory Research l
Staff
Contact:
Tony DiPalo, WMB
! Concurrences:
l A. Thadani, RES Date !
l G. Paperiello, NM55 Date J. Lieberman, OE Date l
W. Olmstead, DGC Date J. L. Funches, GF0 Date t
i A. J. Galante, CIO Date l
R. Bangart, 05P Date B. J. Shelton IRM Date 4
Approval: '
L. Joseph Callan EDO Date l
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RULEMAKING PLAN CHANGES TO 10 CFR PART 72. EXPAND APPLICABILITY TO INCLUDE CERTIFICATE HOLDERS AND APPLICANTS, AND THEIR CONTRACTORS AND SUBCONTRACTORS Reaulatory Issue The Commission's regulations at 10 CFR Part 72 were originally designed to provide specific licenses for the storage of spent nuclear fuel in an independent spent fuel storage installation (ISFSI). Later, these were amended to include the storage of high level waste (HLW) at a monitored retrieval storage (MRS) installation, in 1990, the NRC amended Part 72 to include a process for certifying spent fuel storage casks (Subpart L) and for granting a general license to reactor licensees using NRC certified casks-(Subpart K) for storage of s Some Part 72 provisions for cask storage of spent fuel, e.g., pentthe nuclear qualityfuel.
assurance requirements, are intended to apply to cask certificate holders and applicants for cask certificates of compliance, as well as to holders of licenses and applicants for a license to store spent nuclear fuel at an ISFSI. Because some of the Part 72 requirements intended to apply to certificate holders and applicants e of the requirement, the do NRC not hasclearly had difficulty bring citing thesecerpersons within the scop / applicants when such persons tificate holders have violated those Part 72 requirements. Presently, when the NRC discovers such a violation, it issues an administrative action in the form of a Notice of Nonconformance (NNC); The issuance of an NNC does not effectively convey
.that a violation of a legally binding requirement has occurred. Since the current regulations do not clearly include these persons, the NRC has not taken enforcement action such as a Notice of Violation (N0V) against ,
certificate holders and applicants and their contractors and subcontractors when such persons violated Part 72 requirements.
Current Rule Reauirements The current regulations in Subpart G explicitly apply only to licensees.
Some of-the Subpart L regulations a) ply explicitly only to "the applicant."
e.g. 10 CFR 72.232, or to "the cast vendor." e.g. 10 CFR 72.234(d)(1), or are written in the passive voice so that it is not clear who is responsible for meeting the reoutrement. e.g.'. 10 CFR 72.236.
Rcaul6 tory Problem to be Resolved NRC's Enforcement Policy describes the enforcement sanctions available to the NRC (see Section VI of the Enforcement Policy). These sanctions include:
a notice of violation ("a written notice setting forth one or more violations of a legally binding requirement");
a civil penalty ("a monetary penalty that may be imposed for violation of (1) certain specified licensing provisions of the Atomic Energy Act or
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4 g u 2 supplementary NRC rules or orders. (2) any requirement for which a license may be revoked, or (3) reporting requirements under Section 206 of the Energy Reorganization Act ); and related administrative actions such as a Notice of Nonconformance (" written notices describing verdor's failures to meet commitments which have not been made legally binding requirements by NRC").
The regulations that are the subject of this proposed rulemaking have not been made explicitly ap)11 cable to certificate holders and applicants.
Accordingly NNCs lave typically been issued when these regulations are violated by certificate holders. This rulemaking would allow the staff to issue NOVs in these situations. The staff believes that issuance of NOVs would clearly 1dentify that a violation of a legally binding requirement has occurred.
The NRC staff's experience in administering the Part 72 regulations has shown that significant problems have occurred with respect to spent nuclear fuel storage because of the failure of certificate holders and applicants to observe Part 72 requirements. In FY 1996, the NRC issued 15 NNCs to certificate holders and their subcontractors indicating a pattern of poor engineering in the areas of design, design controls, and corrective action by certificate holders.
The purpose of this rulemaking is to clearly place appro)riate Part 72 requirements on certificate holders and applicants and t1eir contractors and subcontractors. This should enhance the staff's ca enforcement action in the form of NOVs rather thanadministrative pability.to takeaction in the form of a NNC when recuirements are violated that apply to certificate holders and applicants anc their contractors and subcontractors.
The proposed rulemaking would amend regulations in Subpart G. " Quality Assurance." and Subpart L. " Approval of Spent Fuel Storage Casks." to explicitly make certificate holders and applicants subject-to those requirements. This proposed rulemaking would revise those sections of 10 CFR Part 72 listed in the Appendix of this rulemaking plan to explicitly place requirements on certificate holders and applicants and their contractors and subcontractors, in addition to these changes. 10 CFR 72.11. " Completeness and Accuracy of Information." would be revised to include certificate holders:
10 CFR 72.3 would be revised to incorporate a definition of " spent fuel storage cask"; and a records and re 72.80 would be placed in Subnart L. ports requirement similar to that in 10 CFR Preliminary Reaulatory Analysis The following options are cons 1 A red in this rulemaking plan:
o -Option 1 - Revi'se appropriate sections of 10 CFR Part 72 (listed in the appendix).to explicitly place requirements on certificate holders and a)plicants and their contractors and subcontractors. The benefit of tais option is that all who have a responsibility for assuring safety -
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e i.e., licensees, certificate holders, applicants, contractors.
subcontractors .would be named explicitly as subject to the requirements in 10 CFR Part 72. This in turn wilf make )ossible issuance of notices of violation, if appropriate, when t1e requirements are violated by any person having a responsibility for assuring safety, thereby allowing the NRC to conduct its business of l health and safety more ef ficiently and effectively. protecting public However, because i
the regulation would explicitly include non licensees (contractors and subcontractors) this action could be challenged in court as an unwarranted expansion of the scope of the Commissisn's authority.
- Option 2 - Revise Part 72 to add certificate holders and applicants but not their contractors and subcontractors. The advantages of this option
! are that the regulatory scheme of Part 72 would remain more consistent with other NRC regulations in that certificate holders and applicants would be responsible for the behavior of their contractors and I
subcontractors, and because this action would be limited to certificate holders and anlicants it may not be as likely to be challenged as an ex)ansion of HC authority. The cons are that contractors and su] contractors of licensees, certificate holders, and applicants do have responsibility for safety, and omitting them from Part 72 will continue the present difficulty that NRC has encountered in reaching these persons with its enforcement tools.
- Option 3 No Action. The pros of this option are that staff resources are conserved (in that a rulemaking does not take ) lace). However, under this option the present difficulty that the 4RC has had in reaching all persons with responsibility for safety with its enforcement tools will continue.
The current regulations do not totally reflect the NRC authority to protect public health and safety and impede NRC from conducting its business efficiently and effectively. Option 1 is selected because it will clearly place Part 72 recuirements on all persons who have safety responsibility. It would allow the bRC to issue NOVs. Experience has indicated that contractors and subcontractors, rather than only certificate holders and applicants, need clear direction that it is necessary to comply with applicable Commission regulations. The impact on affected persons in compliance with the regulations should be none because this rulemaking is not placing new requirements on them: rather, it is only clarifying the applicability of current regulations. For affected respond to a NNC or NOV is similar. persons in non The impact compliance, on the thesmall NRC will be effort to because there is no significant difference in expenditure of staff resources in issuing a NOV instead of a NNC.
T1e Action Taken by the NRC-0GC's Leoal Sufficiency Analysis Demonstratina laat No Known Basis Exists for Leaal Objection OGC has no legal objection to initiation of this rulemaking. The Commission has in the past placed unlicensed persons within the scope of its regulations, notably in the Deliberate Misconduct Rule (DMR) (56 Eel Rea. 40664 - 40693
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1 4-(1991)). In the DMR, the Comission asserted broad authority under the Atomic Energy Act to place regulatory prohibitions on non licensees and to take enforcement action against such persons when violations occur. Decently, the Comission issued a proposed rule which expands the scope of tht. JMR to include additional categories of persons, including certificate holders and applicants. See 61 f.eA Ech 51835 51844 (1996).
Since this pro)osed ruhimking is based on the same legal principle used to support the DM1 and it.s amendments, OGC believes that there is a sound legal basis for proceeding with this rulemaking. However, the scope of the Comission's authorit) over non licensees is not clear cut, and the same objections to the Comission's assertion of such authority that were made to the DMR and to its proposed amendment may be anticipated here. As long as this rulemaking retains the same cautious language as was used in the above-mentioned rulemakings (i.e., that by im)osing a direct prohibition on unlicensed persons, the Comission may se able to exercise its section 234 authority to impose NOV's on unlicensed persons), OGC does not anticipate a successful legal challenge to the rule.
Backfit Analysis The NRC staff has determined that the backfit rule 10 CFR 72.62, does not apply to this proposed rule and, therefore, a backfit analysis is not required.
Aareement State Considerations No problems from the proposed amendment have been identified that would adversely affect the Agreement States.
Succortina Documents None required.
Resources Reauired It is anticipated that 0.85 NRC FTEs will be needed to complete this action (0.45 RES, 0.2 NMSS and 0.2 all other). These resources are within existing budget allocations.
Lead Office Staff and Staff From Suncortina Offices RES T. DiPalo/P. Norian OCG N. Jensen OE G, Cant ADM M. Lesar NMSS P, Brochman OSP L. Bolling Steerina Groun These amendments are not considered significant enough to warrant consideration by a steering group.
5-Public Particioation l
This rulemaking plan will be placed on the fedWorld Bulletin Board. The proposed amendments will be published in the Federal Reaister as a proposed rule for public coment.
-Is It Recomended That the EDO 1ssue the Rule in Accordance With Manaaement Directive 9.17?
No. The proposed rule constitutes an expanded application of NRC jurisdictional authority. Therefore, issuance of the proposed and final rule will require Comission approval.
Schedul.g The schedule is expressed in terms of time from approval of the rulemaking plan.
Proposed rule to EDO Approval of rulemaking plan + 3 months Public coment )eriod ends Approval of rulemaking plan + 7 months Final rule to E)0 Approval of rulemaking plan + 14 months
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t I APPENDIX
i APPENDIX Pronosed Chanaes to 10 CFR Part 72
- 1. Include certificate holders and applicants and their contractors and subcontractors as ap3ro 72.80(a),(c), 72.84())(priate, 1)(iv), in 10 CFR 72.2(b).
72.140(a),(b), 72 11(a),(b),
72.142, 72.144(a),(b),(c),(d), 72.146(a).(b),(c). 72.148, 72.150, 72.152, 72.154(a),(b),(c), 72.156, 72.158, 72.160, 72.162, .164, 72.166, 72.168(a), 72.170, 72.172, 72.174, 72.176, and Subpart L, 72.230 -
72.240.
- 2. Revise 10 CFR 72.3 to incorporate a definition of " spent fuel storage cask."
- 3. Revise Subpart L to include the records and reports requirement in 10 CFR 72.80.
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