ML20244C132
| ML20244C132 | |
| Person / Time | |
|---|---|
| Issue date: | 03/04/1983 |
| From: | Dircks W NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | |
| References | |
| TASK-RIA, TASK-SE SECY-83-016B, SECY-83-16B, NUDOCS 8303160694 | |
| Download: ML20244C132 (119) | |
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RULEMAKING ISSUE (Affirmation)
March 4, 1983 SECY-83-16B Fer:
The Commissioners From:
William J. Dircks Executive Director for Operations
Subject:
REVISED REGULATIONS TO IMPLEMENT LEGISLATION ON (1) TEMPORARY OPERATING LICENSING AUTHORITY AND (2) NO SIGNIFICANT HAZARDS CONSIDERATION (THE "SHOLLY AMENDMENT") - SECY-83-16 AND 83-16A purpose:
To obtain Commission approval of publication of: proposed and interim final regulations implementing legislation which authorizes NRC to issue (1) temporary operating licenses and (2) requested operating license amendments involving no significant hazards considerations before the conduct of any hearing.
Discussion:
Questions and concerns were raised at the Commission meeting on February 22, 1983 about various aspects of the subject regulations in SECY-83-16A. We have made changes to the paper to answer and accommodate these, and enclose revised Enclosures 2, 3 and 4 (containing the rules) to SECY-83-16A, with deletions lined through and additions under. lined.
(Deletions and additions marked on SECY-83-16A have been deleted.)
For your ready reference we have also included updated revisions of Enclosures 5 to 9 of SECY-83-16.
One of the more important changes we have made is to delete reference to ex parte and separation of functions in the temporary operating licensing rule in Enclosure 2 and to adopt the list of sections in subpart G provided by OGC. This is explained in the preamble of the rule.
In another of our changes, we have deleted the examples of significant and no significant hazards considerations from the rule itself and incorporated them in the
Contact:
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.The Commissioners
- L preamble of Enclosure 3.
We have also deleted reracking from the examples and provided a short explanation in-the preamble. We have kept the approach provided in
, for more flexible notice and comment procedures in exigent circumstances short of emergencies. And we have not changed the approach, presented in Enclosures 3 and 4. of publishing the rules as interim final rules and requesting public' comment l
during the 30-day period before they become effective.
William Dircks Executive Director for Operations
Enclosures:
Revised Enclosures 2, 3 and 4 to SECY-83-16A and updated Enclosures 5 - 9 to SECY-83-16.
Commissioners' comments should be provided directly to the Office of the Secretary ASAP.
Commission Staff Office comments, if any, should be submitted to the Commissioners ASAP, with an information copy to the Office of the Secretary.
This paper is tentatively scheduled for affirmation at an Open Meeting during the Week of March 14, 1983.
Affirmation will be moved up to Thursday, March 10,_ 1981 if Commissioners' votes are received in time.
DISTRIBUTION:
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ENCLOSURE 2 I
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NUCLEAR REGULATORY COMMISSION p
10 CFR Parts 2 and 50 Temporary Operating Licenses AGENCY:
Nuclear Regulatory Commission.
' ACTION:
Proposed rule.
SUMMARY
- The Commissi6n is proposing to adopt amendments to its " Rules of' Practice for Domestic Licensing Proceedings" in 10 C.F.R. Part 2 and to its
' regulations in 10 C.F.R. Part 50, " Domestic Licensing of Production and Utilization Facilities," providing for the issuance of temporary operating licenses for nuclear power reactors.
Public Law 97-415, enacted on January 4,1983, amended section 192 of the Atomic Energy Act of 1954 (the Act), to authorize the NRC to issue such licenses. Section 192, initially added to the Act on June 2,1972, authorized the Atomic Energy Comission (AEC) to issue temporary operating licenses for nuclear power reactors under certain prescribed circumstances.
(The AEC's licensing authority was trans-ferred to the NRC in 1975.) The authority under the original section 192 expired, however, on October 30, 1973. To the extent that the amended section 192 is to substance the same as the original section, the imple-menting regulations in the amendments to Parts 2 and 50 are also similar in substance to the now expired regulations which were initially published in 1972 to implement the section. The proposed amendments to Parts 2 and 50 set K
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L out below are designed to conform Commission regulations and procedures to the new temporaryToperating licensing authority.-
l Comments received after this date DATE: Comment period ' expires -
will be considered if.it is practical to do so, but assurance of consideration cannot be given except as to comments received.on or before this date.
ADDRESSES: All interested persons who desire to submit written comments or suggestions for consideration in connection with the amendments'should serd them to_ the Secretary of the Commission, U.S. Nuclear Regulatory Conmission, Washington, D.C. 20555, Attention: Docketing and Service Branch. Copies of comments received on the amendments as well as on the Regulatory Analysis prepared in connection with the amendments may be examined in the Commission's Public Document Room at 1717 H Street, N.W., Washington, D.C.
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.
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30 days will be given following publication in the FEDERAL REGISTER.
This footnote will be deleted after the Commission acts on the rule.
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-SUPPLEMENTARY INFORMATION:
Background
After the March 1979 accident at the Three Mile Island nuclear power plant, the NRC focused its attention on evaluating the accident and its implications for-the safe regulation of nuclear power in this country and on developing the necessary regulatory improvements for continued operation of nuclear power plants. During this period, construction con-
.tinued on those nuclear power plants with construction' permits, although NRC applied only very limited effort to preparing and meeting the necessary safety reviews and hearing requirements for the issuance of operating licenses for these facilities.
Largely as a result of this state of affairs, in late 1980 it was argued that there was a possibility that delays would occur between the between the time when construction of some of these plants would be sufficiently completed to allow fuel loading and the start of operations and the time when all requirements for the issuance of operating licenses (including the hearing requirements of the Atomic Energy Act) would be met.
Under the Atomic Energy Act of 1954, as amended (the Act), no person may operate a nuclear power plant without first obtaining an operating license from the NRC. A fonnal on-the-record evidentiary hearing must be held--and a decision rendered on the basis of that record--if requested by any person whose interest may be affected, before the Commission may issue an operating license.
Before the enactment of Public Law 97-415, in a case where a hearing is held, the Comission lacked the authority to authorize fuel loading and low-power operation and testing on the basis of its safety and environmental evaluation; a utility was required instead to await authorization in the course of the hearing process (see 10 C.F.R. 50.57(c)).
.l It continues to be argued that, notwithstanding the administrative changes to the licensing process designed to reduce the time required to complete the licensing of these plants, and-the-fast-that-hearings-have-set delayed-eperatien-ef-any-plant-14eensed-te-sperate-after-the-ass 4 dent-beyeRd the-time-that-the-plant-was-ready-fer-speratien there remains a possibility that some licensing delays might occur for some of the plants scheduled to be completed before the end of 1983.
In order to obviate the possibility of such delays ever occurring, on March 18, 1981, the Commission submitted a legislative proposal to amend the Act so as to authorize the Comission to issue a temporary' operating license for a nuclear power plant, allowing fuel loading and low-power operation and testing, in advance of the conduct or completion of an on-the-record evidentiary hearing on contested issues relating to the final operating license.
Public Law 97-415 is the final legislative product of the Comission's proposal.
It is an
" extraordinary and temporary cure for an extraordinary and temporary situation." Conf. Rep. ha.97-884, 97th Cong., 2d Sess. 35 (1982).
General A person applying for an operating license for a nuclear power plant, which is licensed under sections 103 or 104b. of the Act and as to which a hearing is otherwise required under section 189a. of the Act, could apply for a temporary operating license, pending tinal action by the Comission on the application for the final operating license. The temporary operating license for the facility would authorize fuel loading, testing and operation at a specific power level to be determined by the Comission. The initial petition would have to be limited to power levels not to exceed 5 percent of
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the. nuclear facility's rated full thermal power, and the Commission could not initially authorize a higher power level. After the temporary operating license is issued, the licensee may file one or more additional petitions with ths Comission to allow facility operation up to full power in staged increases in power level beyond the initial 5 percent limitation. All authorizations for temporary operating licenses under section 192 and these implementing regulations must be pursuant to a vote and a final. order of the Commission itself and cannot be delegated to the NRC staff. The authorizations themselves lie within the discretion of the Commission. This means, among other things, that the Comission in a temporary operating license would authorize both a given power level and the time it deems appropriate for operation at that level before issuance of the full power license.
The prencnt authority and procedures in % 50.57(c) of the regulations (under which a pres'iding Atomic Safety and Licensing Board may, on motion, and after a decision based on the evidentiary record or upon agreement of the parties to the contested proceeding, authorize the issuance of a fuel loa,d or low-power and testing license) remain available and are not affected at all by these regulations implementing section 192 of the Act.
In other words, the new 5 50.57(d) (described below) for temporary operating license authority is not coupled to the present 5 50.57(c), and a licensee proceeding under 5 50.57(c) may also proceed separately under 6 50.57(d) without any rights being waived under 6 50.57(c).
If a licensee already has a low power license and wishes to go to higher or full power using the temporary operating license procedure (that is, it wants to translate its low power authority under 9 50.57(c) to low power authority under 6 50.57(d) and C_______--_---------_--------------
then to go to higher power under 9 50.57(d)-for some specified time period),
' it_ should show that it is in satisfactory camnliance with 9 50.57(d) and that e
the temporary operating license for la ytwr would be in all respects the.
- same as or more restrictive than the low power license. Although the Comission does not'wish to require pro forma acts, a licensee in the situation described above should show that the time periods and authorized power level for both types of licenses are compatible, and Additionally, to simplify the Comission's considerations, it should show that the parties affected by this situation (ordinarily the parties in the proceeding under 9 50.57(c)) have nut waived their rights and agree to its proposed course of action; consequently, to make sure that there truly is an agreement and that everyone's rights are being protected, the Comission expects licensees to demonstrate to it (under the procedures described in 9 2.301 et seq.,
described later) that affected parties were en notice of and have not objected to the licensee's proposed action.
If a licensee does not or can not make such a showing, the Comission may still issue the temporary operating license, but may use additional procedures to make its decision.
In delineating the circumstances under which petitions may be filed and conditions under which the Comission may exercise its authority, the proposed rule carefully follows the prescriptions in section 11 of Public
!.aw 97-415. These provisions are reflected in the proposed amendments to Parts 2 and 50 set out below.
In essence, these amendments would establish a detailed procedural framework for considering and issuing tempccary operating licenses.
Section 192, as amended, and its accompanying legislative history
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4 clearly contemplate that the procedural framework is both useful and needed to. govern the Comission's actions in exercising the new authority and to preserve for the publid its right to participate in licensing decisions.
Proposed Subpart C to 10 C.F R. Part 2
" Procedures Under Section 3 for the Issuance of Temporary Operating Licenses."
Subpart C would simply add procedural requirements to 10 C.F.R. Part 2 needed to implement the temporary operating licensing authority in section 192 of the Act as provided for in a new $ 50.57(d) of 10 C.F.R. Part 50. Unlike the hearing process on the final operating license, the temporary operating licensing process would be subject neither to the hearing requirements of section 189a. of the Act nor to the requirements of subparts A or all the requirements of subpart G of the Rules of Practice in 10 C.F.R. Part 2.
However, certain sections of subpart G would be applied to resolve needless controversy about such items as the filing of papers, service on parties, and so on. These are 10 C.F.R. $ 2.701, 2.702 and 2.708 - 2.712, relating to service and filing of documents, maintaining a docket, and time computations and extensions; 6 2.713, relating to appearance and practice before the Comission; 6 2.758, generally prohibiting challenges to the Comission's rules; and 6 2.772, generally granting the Comission's Secretary the authority to rule on procedural matters.
It should be noted that 10 C.F.R. 6 2.719 and 2.780, relating to separation of functions and ex parte communications, would not apply. This would mean that the_
I Comission's staff, applicants and interveners would be free to contact individual Commissioners as well as the Comission's Office of General i
l Counsel and Office of Policy Evaluation to argue their respective positions i
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I on the temporary operating license. The Comission is sensitive to the concern that informal contacts should not be extensive and that they should not result in significant data or argument that is'both relied on by the Commission in its temporary operating licensing decision and unavailable to the parties for comment before the decision.
It will separate ex parte contacts in the in the area of temporary operating licensing from those with respect to operating licensing proceedings and attempt to ensure that such contacts do not contaminate operating licensing proceedings. The Commission's decision not to apply separation of functions and ex parte rules to temporary operating licensing is based on the belief that operating licensing and temporary operating licensing proceedings on a given plant are separate proceedings for the purpose of application of the formal hearing requirements of the Administration Procedure Act (APA). The amendment to section 192 of the Atomic Energy Act (Act) states that section 189a. of the Act does not apply to a temporary operating licensing proceeding; thus, if section 189a.
does not apply, then the APA's formal hearing requirements do not apply either. Consequently, the Comission's consideration of private communications with the parties in a temporary operating licensing proceeding would not prevent the Comission from eventually considering, as necessary, issues arising from the operating licensing proceeding.
In this context, it bears mention that the Conference Comittee noted that, under section 192, the Comission cannot issue a temporary operating license before "all significant safety issues specific to the facility in question have been resolved to the Commission's satisfaction." See Conf. Rep. No.97-884, 97th Cong., 2d Sess. 35 (1982).
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I Subpart C provides all of the necessary procedural guidance regarding requests for, and Commission authorization of, temporary operating licenses.
l Briefly, Subpart C would provide:
For the petition for a temporary operating license or for an amendment to that license to be filed in the form of a written motion. The written motion, with supporting affidavits, must be served on all parties to the proceeding for the issuance'of the final operating license.
The initial petition must be limited to power levels not to exceed 5 percent of rated full thermal power. After the issuance of the temporary i
operating license, the licensee may file subsequent petitions with the Comission to amend the temporary operating license by incremental increases in power levels in excess of the initial 5 percent limitation.
Each new petition can request only one incremental increase.
The proposed subpart provides general guidance on the contents and requirements for affidavits which may be filed in support of or in opposition to petitions for the issuance, or the amendment, of temporary operating licenses.
The proposed rules provide for prompt publication of notices of petitions for temporary operating licenses as well as for amendments to such licenses and also provide for a 30-day period for public coment. The notice will inform interested persons about the way they can obtain access to the petition and its supporting affidavits.
Such access is needed so that such persons might, as the rules also provide, file responsive affidavits to the petition.
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The proposed rules do not specify a time after the 30-day public e
comment period for Commission action on the petition.
In keeping with a purpose' of the temporary operating license authority, the proposed rules 1
provide that the Commission will act as expeditiously as possible on i
I petitions for temporary operating licenses and for amendments to such licenses.
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Issuance of a temporary operating license or an amendment must be pursuant to a final order of the Commission itself, which recites the reasons called for'in section 192 of the Act and in 9 50.57(d) of the regulations.
As called for by. the legislation, the order would be transmitted upon its issuance to the Comittees on Interior and Insular Affairs and Energy and Commerce of the House of Representatives and the Committee on Environment and Public Wcrks of the Senate. The final order of the Comission would be subject to judicial review under section 189b. of the Act.
It should be noted that, pursuant to the legislation, the requirements of section 189a. of the Act would not apply to the issuance or amendment of a temporary operating license. Thus, the legislation authorizes the Commission to use procedures other than formal adjudicatory procedures in issuing a temporary operating license.
In this regard, the Comist. ion will develop informal procedures case-by-case to resolve particular issues as they arise.
The proposed rules restate the procedural constraints in section 192 to assure that the issuance of a temporary operating license does not prejudge the outcome of the licensing hearing for the final operating license for that nuclear power plant or prejudice the rights of any party to the hearing to raise any proper issue in that hearing and to have that issue decided.
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4 The proposed rules require, as does section 192, that any party to l'
the final operating license hearing, or any licensing board member conducting l
the heari:.g, promptly notify the Commission about any information made an11able as part of that hearing:
(1) that the terms and conditions of the temporary operating license are not being met or (2) that they are insufficient to provide reasonable assurance that operation of the facility during the period of the temporary operating license 'will provide adequate protection to the public health and safety and to the environment.
The proposed rules state that a temporary operating license is subject to modification, suspension or revocation, or to the imposition of civil penalties pursuant to sections 186 and 234 of the Atomic Energy Act and subpart B of 10 C.F.R. Part 2.
Finally, it should be noted that, pursuant to section 192d. of the Act, the Comission will. exert its best efforts to adopt appropriate administrative remedies to minimize the need for the issuance of temporary operating licenses. This is in keeping with the conferees' agreement in the Conference Report that a temporary operating license should be a "last resort remedy, to be employed only when no other alternative is available." Conf.
Rep.No.97-884,97thCong.,2dSess.36(1982). The Comission will also ensure that any administrative remedies it adopts will not themselves infringe upon the right of any party to a full and fair hearing under the Act, again in keeping with the conferees' expectations.
Ijd. And, lastly, the Commission will notify the Committees on Interior and Insular Affairs and Energy and Commerce of the House of Representatives and the Committee on
L Environment and Public Works of the Senate of all administrative remedies it
. proposes to adopt, also in keeping with the conferees' intentions.
I d_.
s Proposed 5 50.57(d) of 10 CFR Part 50 A new 9 50.57(d) would be added to reflect the substance of the temporary operating licensing authority granted by Public Law 97-415 and the special provisions which must be satisfied before the Commission exercises this authority. Pursuant to section 11 of Public Law 97-415 and Q 50.57(d),
the following requirements would be applicable to a petition for and the issuance of a temporary operating license and amendments to that license:
A petition for the issuance of a temporary operating license could not be filed with the Commission until the Advisory Committee on Reactor Safeguards (ACRS) report, the NRC staff's initial safety evaluation report (SER) and the staff's supplement to this report (SSER) prepared in response to the ACRS report for the plant, the NRC staff's final environmental statement, ands-pwesvant-te-t-50,34(b}s-E-50,475-and-Append 4x-E-ef-part-50s a State, local or utility emergency plan have been filed.
The initial petition for a temporary operating license and amendments to that license would be handled as described before.
After the issuance of a temporary operating license, subsequent q
i petitions from the utility for increased power levels, notice and public
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i comment periods on each new petition, and the determinations by the NRC called for by section 192 (and implemented in this new i 50.57(d)) would be required before the Comission could allow operation at power levels beyond the initial 5 percent low-power testing level.
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' Before issuing a temporary operating license or amending the license to alliw operation at an increased power level, NRC must provide notice of the request fcr such authority and a 30-day period for public coment.
Upon the expiration of the 30-day coment period, the Comission could issue the temporary operating license, or amend the license to allow temporary operation at a power level in excess of the initial license limitation, as the case may be, if the Comission itself determined that:
(1) all requirements of law other than the conduct or completion of any required hearing on the final operating license are met; (2) in accordance with such requirements, there is reasonable assurance that temporary operation of the facility in accordance with the terms and conditions of the license will provide adequate protection te the public health and safety and the environment; and (3) denial of the temporary operating license will result in delay between the time when the facility is sufficiently completed, in the judgment of the Comission, to permit issuance of the temporary operating license, and the time when a final operating license for the facility would otherwise be issued.
For a petition to amend the temporary operating license to permit operation at a power level in excess of 5 percent of the facility's rated full themal power, the Comission's findings must, of course, be directed to operation at the increased power level which would be authorized by the amendment.
Any final Comission order authorizing the issuance of a temporary operating license pursuant to section 192 (i.e., as distinguished from an order which may be issued by a presiding Atomic Safety and Licensing Board under paragraph (c) of 5 50.57) of the Act must recite with specificity the i
i reasons justifying the findings required by that section and 6 50.57(d).
The order must be sent upon issuance to the Committees' described before.
The temporary operating license would contain such terms and conditions as the Commission may deem necessary, including the duration of i
the license and any provision for its extension.
The Commission would suspend the temporary operating license if it finds that the applicant is not prosecuting the application for the final operating license (and on which a hearing under section 189a. is being conducted) with due diligence. The Commission could, of course, suspend the license for other reasons, such as in the interest of public health and safety.
Section 192 provides that the Commission's authority to issue new temporary operating licenses shall expire on December 31, 1983. This precludes the normal procedure under the Administrative Procedure Act with respect to the filing of "tinely applications". Since the Commission cannot issue new temporary operating licenses after December 31, 1983, it expects any licensee that wishes to apply for such a licensee to do so before November 23, 1983, to allow it to act before its authority expires.
(See 6 2.301.)
Licensees should also note that their licenses will not expire on that date.
Section 192 simply states that the Commission's authority to issue a new temporary operating license will expire.
It is also clear that the Commission retains its authority to suspend the temporary operating license, if it finds that the applicant is not prosecuting its application for the final operating l
license with due diligence.
(Seei2.306.)
Finally, where the Commission has I
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l issued a new temporary operating license before December 31, 1983, and, subsequently, the licensee requests an amendment to that license, this provision does not preclude the Commission from amending that license after December 31, 1983. Th e - G emi s s i e n-w4 s he s - te-pe i n t -e w t,- th ew g h,- t h a t s-4 n keeping-with-the-intent-ef-the-legislattens-4t-dees-net-erdinar41y-eMpeet I'
te-graRt-aR-ameRdmaRt-reGWest4Rgy-fer-eMampley-a-eRe-step-4RErease-frem-Et pewer-te-fw11-pewer-after-this-date, Peperwork Reduction Act Statement This proposed rule contains no new or amended requirements for recordkeeping, reporting, plans or procedures, applications or any other type of information collection reviewable by the Office of Management and Budgat
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under the Paperwork Reduction Act.
Reoulatory Flexibility Certification In accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C.
605(b),theCommissioncertifiesthatthisproposedruledoesnothavea significant economic impact on a substantial number of small entities.
This rule affects only the licensing and operation of nuclear power plants. The companies that own these plants do not fall within the scope of the definition of "small entities" set forth in the Regulatory
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Flexibility Act or the Small Bus'iness Size'. Standards' set out in regula-tions issued by'.the.Small Business Administration at 13 C.F.R. Part.121.
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, Since ~these companies are dominant in their service areas, this p.roposed rule does.not fall'within the purview of the Act.
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Reculatory Analysis The Commission has prepared a' Regulatory Analysis.on these proposed -
amendments, assessing the costs and benefits and resource impacts.
It may
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- be examined at the address indicated above.
Accordingly, pursuant to the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and sections 552 and 553 of' Title 5 of the United States Code, notice is hereby given that adoption of.
the following amendments to 10 C.F.R. Parts 2 and 50 is contemplated.
List of Subjects in 10 C.F.R. Parts 2 and'50.
Part 2 8
l Administrative practice and procedure, Antitrust, Byproduct material, Classified information, Environmental protection, Nuclear materials, Nuclear power plants and reactors, Penalty, Sex dis-crimination, Source material, Special nuclear material, Waste treatment and disposal.
Part 50 Antitrust, Classified information, Fire prevention, Inter-governmental relations, Nuclear power plants and reactors, Penalty, Y____________--___
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4 Radiation protection, Reactor siting criteria, Reporting requirements.
l PART 2 -- RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS 1.
The authority citation for Part 2 is revised to read as follows:
i AUTHORITY:
Secs. 161, 181, 68 Stat. 948, 953, as amended (42 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.
Section 2.101 also issued under 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, 83 Stat. 853, as amended (42 U.S.C. 4332); sec. 301, 88 Stat. 1248 (42 U.S.C. 5871).
Sections 2.102, 2.103, 2.104, 2.105, 2.721 also issued under secs. 102, 103, 104, 105, 183, 189, 68 Stat. 936, 937, 938, 954, 955, as amended (42 U.S.C. 2132, 2133, 2134,2135,2233,2239).
Sections 2.200-2.206 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, Pub. L.91-190, 83 Stat. 853, as amended (42 U.S.C. 4332).
Sections 2.700a, 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. Section 2.790 also issued under sec. 103, 68 Stat. 936, as amended (42 U.S.C. 2133) and 5 U.S.C. 552.
Sec-tions 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 amended (42 U.S.C. 2039). Appendix A also issued under sec. 6, Pub.
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~r L.91-580, 84 Stat. 1473 (42 U.S.C. 2135). The provisions of subpart C also issued under Pub. L. 97-415~, 96 Stat. 2071 (42 U.S.C. 2133).
2.
A new subpart C is added to 10 C.F.R. Part 2 to read as follows:
Subpart C - Procedures under Section 192 for the Issuance of Temporary Operating Licenses.
l 2.300 Scope of subpart.
This subpart prescribes the procedures for issuing a temporary operating license and specifies the framework for Comission determinations. These procedures apply in any proceeding where an applicant has applied for a final operating license for a utilization facility (licensable under sections 103 or 104b. of the Atomic Energy Act (Act) and otherwise requiring a licensing hearing pursuant to e tion 189a.) and the applicant, pursuant to section 192 of the Act and 5 50.57(d) of'this chapter, petitions the Comission for a
' temporary operating license authorizing fuel loading, testing, and initial low power operation (or for an amendment authorizing operation at an increased power level), pending action by the Comission on the application for the final operating license.
9 2.301 Filing of petition and accompanying affidavits.
(a) Before November 23, 1983, an applicant for an operating license may file a written petition for a temporary operating license with the Comission for each such facility. The applicant must serve the petition, including the t
accompanying affidavits, on all parties to the proceeding for the issuance of L___---__---____--__-_-___________-_
the final operating license. The applicant may file any such petition at any time after the documents called for by section 192 of the Act and % 50.57(d) of this chapter become available.
(b) The initial petition for a temporary operating license for each such facility shall, in accordance with section 192 of the Act and 9 50.57(d) of this chapter, be limited initially to a specified time and to a power level not to exceed 5 percent of the facility's rated full thermal power for that specified time. After the Commission issues a temporary operating license for any such facility, the licensee may file subsequent petitions with the Comission, using the procedure described in paragraph (a),
requesting the Comission to amend the temporary operating license to allow facility operation a.t incremental stages beyond the initial 5 percent level for specified times, up' to and including operation at full power, pending completion of the proceeding on the final operating license.
(c) The Comission has full discretion to determine the initial power level up to 5 percent and the incremental increases in power levels it will authorize and the period for which the authorization is granted.
It will not grant a temporary operating license or an amendment to that license for a period lasting beyond the date the final operating license is granted, and the temporary operating license and any amendments to that license will expire when the final operating license is issued.
I 2.302 Contents of affidavits.
The applicant's petition for a temporary operating license or an amend-ment to that license shall be accompanied by an affidavit or affidavits 1
setting forth the specific facts upon which the petitioner relies to justify i
L issuance of the temporary operating license or the amendment to that license, j
Any such affidavit and any affidavit filed in response shall state separately the specific facts and arguments and include the exhibits upon which the person relies. The facts asserted in any affidavit filed shall be sworn to l
or affirmed by persons having knowledge of those facts, and a statement to this effect shall affirmatively appear in the affidavit.
Except under unusual. circumstances, such persons should be those who would be available to substantiate orally the facts asserted, as the Commission deems appropriate.
Any such affidavit shall be accompanied by a list of documents relied on to support the facts stated in the affidavit and the place where such documents, other than those issued by the Comission's staff, are available for inspection.
5 2.303 Notice of petition.
The Commission will promptly publish notice of each petition for issu-ance of a temporary operating license and any subsequent petitions for amendments to that license in the FEDERAL REGISTER and in such trade or news publications as the Commission deems appropriate in order to give reasonable notice to persons who might have a potential interest in the grant of such a temporary operating license or an amendment to that license. The notice will inform such persons of the arrangements for their access to the petition and supporting affidavits. Any person may file affidavits in support of, or in opposition to, the petition within 30 days after the publication of such notice in the FEDERAL REGISTER. The Commission thereafter will act as expeditiously as possible to reach a determination on such petitions.
.---______.m_______m.._____________________________mm,_-_,_____.__.-
.________.,__.-_._,_m._
6 2.304 Responsive affidavits.
Responsive affidavits in opposition to the petition shall be accompanied
-by a short and concise statement of the material facts as to which it is contended that there exists a substantial issue'concerning the issuance of-the temporary operating license or. an amendment to that license. Any respon-sive affidavit and any accompanying statement shall be served on all-parties to the proceeding for the issuance of the final operating license.
Q 2.305 Commission authorization.
(a)
Issuance of a temporary operating license or an amendment to that-license shall be pursuant to a final order of the Commission itself which recites the reasons for such authorization as called for in section 192 of the Act and 5 50.57(d) of this chapter.
(b) The requirements of section 189a. of the Act with respect to the issuance of or an amendment to a utilization facility license shall not apply to the issuance of or an amendment to a temporary operating license. Thus, l
subpart A of this part does not apply to the consideration of a petition for the issuance of or an amendment to such a temporary operating license; and only ll 2.701, 2.702, 2.708 - 2.713, 2.758 and 2.772 of subpart G of this part apply to the consideration of such a petition.
9 2.306 Hearing on the final operating license.
(a)
Issuance of a temporary operating license under section 192 of the Act and 9 50.57(d) of this chapter shall not pre. judice the right of any party to a proceeding for the issuance of the final operating license to pursue
___________.._____2.__
L..; -
properly admitted issues in a hear.ing required pursuant to section 189a. of the Act.
Failure to assert any ground for denial or limitation.of such a temporary operating license shall not bar the assertion of such ground in connection with the issuance of a subsequent final operating license.
No party shall argue the issuance or denial of a temporary operating license by the Comission as support for its position in a proceeding for the issuance of the final operating license.
(b) Any' hearing on the application for the final operating license for a facility required pursuant to section 189a. of the Act shall be concluded as promptly as practicable. The Comission will suspend the temporary operating license if it finds that the applicant is not prosecuting the application for the final operating license with due diligence. The.
Commission may suspend the. license for other public health and safety or common defense and security reasons.
9 2.307 Notification to the Comission.
Any party to a hearing required pursuant to section 189a. of the Act on the final operating license for a facility for which a temporary operating license has been issued under section 192 of the Act and i 50.57(d) of this chapter, and any member of the Atomic Safety and Licensing Board conducting such a hearing, shall promptly notify the Comission of any information made available-as-part-ef-sweh-hearing that:
(a) The terms and conditions of the temporary operating license are not being met; or that (b) Such terms and conditions are not sufficient to provide reasonable assurance that operation of the facility will provide adequate protection to
p
. 231-
).7
,. u.
1:
.I the public health and safety and to the environment during the period of th'e
- facility's temporary operation.
6.2.308 Use of infonnal procedures.
The Comnission-may-use-presedures-ether-than ordinarily will not use formal adjudicatory procedures.in issuing a temporary operating license and will develop informal procedures case-by-case to resolve particular issues as they arise.
5 2.309 Enforcement.
The Commission may modify, suspend or revoke a temporary operating license, or impose a civil penalty pursuant to sections 186 and 234 of the Act and subpart B of this part.
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^
PART 50 -- DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION FACILITIES 3.
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, l
953, 954, 955, 956, as amended, sec. 234, 83 Stat. 1244, as amended (42U.S.C.2133,2134,2201,2232,2233,2236,2239,2282); secs.201,202, 1
206, 88 Stat. 1242, 1244, 1246, asamended(42U.S.C.5841,5842,5846),
unless otherwise noted.
Section 50.7 also issued under Pub. L.95-601, sec. 10, 92 Stat. 2951 (42 U.S.C.5851). Sections 50.57(d),50.58,and50.92alsoissuedunderPub.
L.'97-415, 96 Stat. 2071 (42 U.S.C. 2133). 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 t
J 50.100-50.102 also issued under sec. 186, 68 U.S.C. 955 (42 U.S.C' 2236).
For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2273),
il 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));
6950.10(b)and(c)and50.54areissuedundersec. 1611, 68 Stat. 949, as j
amended (42 U.S.C. 2201(1)); and Ql 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)).
4.
In 5 50.57 of 10 CFR Part 50, a new paragraph (d) is added to read j
as follows:
5 50.57 Issuance of operating license.
(d)(1) Temporary operating license. An applicant for an operating license, in a case where a hearing is required in a pending proceeding for the final operating license for a facility required to be licensed under sections 103 or 104b. of the Act, pending final action by the Comission on the application for the final operating license, may petition the Comission by a written motion, pursuant to section 192 of the Act and this paragraph j
for (i) a temporary operating license for the facility authorizing fuel l
loading, testing, and operation at up to 5 percent rated full thermal power for a specified time and (ii) an amendment to the temporary operating license requesting for a specified time an incremental increase of the power level beyond that initially granted by the Comission up to full power. The I
Comission has full discretion to determine the initial power level up to l
4
__ _ f 5 percent and the incremental increases in power levels it will authorize and the period for which the authorization is granted.
It will not grant a temporary operating license or an amendment to that license for a period i
lasting beyond the date the final operating license is granted,'and the
' temporary operating. license and any amendments to that license will expire when the final operating license is issued.
(2) The initial' petition for a temporary operating license for each such facility may be filed at any time af'ter the filing of:
(i) the report of the Advisory Committee on Reactor Safeguards (ACRS) required by subsec-tion 182b. of th'e Act; (ii) the initial safety evaluation report (SER) on the application by the regulatory staff and the staff's first supplement to the SER prepared in response to the ACRS report; (iii) the staff's final detailed statement on the environmental impact of the facility prepared pursuant to section 102(2)(C) of the National Environmental Policy Act of 1969; and (iv),
pursuant-te-E-50,34(bh-5-59,47,-and-Append 4x-E-ef-part-50, a State, local, or utility emergency preparedness plan for the facility.
(3) Each petition for the issuance of a temporary operating license, or for an amendment to that license allowing operation at a specific power level greater than that authorized in the initial temporary operating license, shall be accompanied by an affidavit or affidavits setting forth t.he specific facts upon which the petitioner relies to justify issuance of tne temporary operating license or the amendment to that license.
(4) The Comission will publish a notice of each such petition in the l
FEDERAL REGISTER and in such trade or news publications as it oeems approp-riste to give reasonable notice to any persons who might have a potential l
interest in the grant of such a temporary operating license or amendment.
r
[
The notice will inform such persons of the arrangements for their access to the petition and supporting affidavits. Any person may file affidavits in support of, or in opposition to, the petition within 30 days after the publication of such notice in the FEDERAL REGISTER.
e (5) With' respect to any such petition, the Comission may issue a temporary operating license, or subsequently amend.the license to authorize temporary operation at a specific power level greater than that authorized in
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the initial temporary operating license, as determined by the Comission, upon finding that:
(1) in all respects, other than the conduct or completion of any required hearing, the requirements of law are met; i
(ii) in accordance with such requirements, there is reasonable assurance that operation of the facility during the period of the temporary operating license in accordance with its terms and conditions will provide adequate protection to the public health and safety and to the environment during the period of temporary operation; and (iii) denial of the temporary operating license will result in delay between the date on which construction of the facility is sufficiently completed, in the judgment of the Comission, to permit issuance of the temporary operating license and the date on which a final operating license l
for such facility would otherwise be issued under the Act.
(6) Any final Comission order authorizing the issuance of any temporary operating license or an amendment to that license pursuant to
]
section 192 of the Act and this paragraph will recite with specificity the i
reasons justifying the findings required by that section and this paragraph, 1
and will be transmitted upon its issuance to the Comittees on Interior and
)
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S q
4 ENCLOSURE 3 I
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I J
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- -.m.
( n' 1
Insular Affairs and Energy and Commerce of.the House of Representatives and-the Committee on Environment and Public Works of the Senate.
(7) The. temporary operating license will become effective upon its-issuance'and will contain such terms and conditions as the Commission may
~ deem necessary, including the duration of the license and any provision for its extension.
(8) The Commission will suspend the temporary operating license if it
. fin's that the applican't'is not prosecuting the application for the final d
operating license with due diligence.
(9) The authority to issue new temporary. operating licenses under i
section 192 of the Act and this paragraph expires on December 31, 1983.
Dated at Washington, D.C., this day of
,1983.
I For the Nuclear Regulatory Commission, i
Samuel J. Chilk Secretary to the Commission 1
u l
[7590-01]
NUCLEAR REGULATORY COMMISSION 10 CFR Part 50 Standards for Determining Whether License Amendments Involve No Significant Hazards Considerations AGENCY:
Nuclear Regulatory Commission.
ACTION:
Interim final rule.
SUMMARY
Pursuant to Public Law 97-415, NRC is amending its regulations to specify standards for determining whether requested amendments to operating licenses for certain nuclear power reactors and testing facilities involve no significant hazards considerations. These standards will help NRC in its evaluations of these requests. Research reactors are not covered.
The Commission specifically requests EFFECTIVE DATE:
comments on this interim final rule by
- Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given except as to comments received on or before this date.
- /
30 days following publication in the FEDERAL REGISTER. This footnote will be deleted after the Commission has acted.
1
2-ADDRESSES: Written comments should be sent to the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, D. C. 20555, Attention: Docketing and Service Branch. Copies of the documents discussed in this notice and of the comments recei.ved on the proposed rule o
and interim final rules may be examined in the Commission's Public Document Room at 1717 H Street, N.W., Washington, D. C.
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 Pursuant to Public Law 97-415, NRC must promulgate, within 90 days of enactment, regulations which establish (a) standards for determining whether an amendment to an operating license involves no significant hazards considerations, (b) criteria for providing or, in emergency situations, for dispensing with prior notice and reasonable opportunity i
I for public comment on any such determination, and (c) procedures for consultation on any such determination with the State in which the facility involved is located.
Proposed regulations to specify standards for determining whether amendments to operating licenses or construction permits for facilities licensed under il 50.21(b) or 50.22 (including testing facilities) involve no significant hazards considerations (item (a) above) were published for comment in the FEDERAL REGISTER by the Commission on March 28, 1980 (45 FR 20491).
Since
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- 1. - the Commission rarely issues amendments to construction permits and has never issued a construction permit amendment involving a significant hazards consideration, it has decided not apply these standards to amendments to construction permits and to handle these case-by-case. This is in keeping with the legislation which applies only to operating license amendments.
Additionally _these standards will not now be applied to research reactors.
The Commission is currently reviewing whether and'how it should apply these or similar standards to research reactors.
In sum, the interim final rule will amend Part 50 of the Comission's regulations to establish standards for determining whether an amendment to an operating license involves no significant hazards consideration.
The rule takes account not only of the new legislation but also the public coments received on the proposed rule.
For the sake of clarity, affected prior legislation as well as the Comission's regulations and practice are discussed as background information.
Simultaneously with the promulgation of these standards in % 50.92, the Comissions-as-requireal-by-the-new-legislatten, is publishing an interim final rule which contains criteria for providing or, in emergency situations, for dispensing with prior notice and reasonable opportunity for and public coment on a determination about whether an amendment to an operating license involves a significant hazards consideration (item (b) above).
This rule also specifies procedures for consultation on any such a determination with the State in which the facility involved is located
~
(item (c)above). The rule appears separately in the FEDERAL REGISTER.
- 4'-
These regulations are issued as final, though in interim form, and comments will be considered on them. They will become effective 30 days after publication in the FEDERAL REGISTER. Accordingly, interested persons who wish to comment are encouraged to do so at the earliest possible time, but not-later than 30 days after publication, to permit the fullest consideration of their views.
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 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 construction permit and an operating license for power reactors and certain other facilities.
Public Law 85-256 (71 Stat. 576) amending i 189a. of the Act.
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 Atomic Energy, 87th Cong., 2d. Sess. (April 17,1962),p.6.) Partially in response to the administrative rigidity and cumbersome procedures which this j
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 l
' 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 Comittee on Atomic Energy which recomended the i
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 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 absence 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 Comission to dispense with the 30-day notice requirement where the application presents no significant hazards consideration. This criterion is presently being applied by the Comission under the terms of AEC Regulations 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, now provides that, upon thirty-days' notice published in the FEDERAL REGISTER, the Comission may issue an operating 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 requested by any interested person. Section 189a. also permits the Comission to dispense with such thirty-days' notice and FEDERAL REGISTER publication with respect to the issuance of an amendment to a construction permit or l
l
L an amendment to an operating license upon a determination by the Commission that the amendment involves no significant hazards consideration. These provisions have been incorporated into 662.105,2.106,50.58(a)and-(b) and 50.91 of the Commission's regulations.
The regulations provide for prior notice of a " proposed action" on an application for an amendment when a-determination is made that there is a significant hazards consideration and provide an opportunity for interested members of the public to request a hearing.
Seeif2.105(a)(3)and50.91.
l Hence, if a requested license amendment is found to involve a significant hazards consideration, the amendment would not be issued until after any required hearing is completed or after expiration of the notice period.
In addition, 5 50.58(b) further explains the Commission'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 i 50.21(b) or 9 50.22 or which is a testing facility. When a construction permit has been issued for such a facility folicying.tha hnidina of a noblic 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 amendment to a construction permit or operating license wihtout a hearing, upon 30 days notice and publication once in the FEDERAL REGISTER 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 l
license, it may dispense with such notice and publication and may issue the amendment.
l l
l l
l l
( l Thus, it is very important to note that a determination that a proposed license amendment does or does not present a "significant hazards t
consideration" has generally been coupled to the hearing and attendant notice requirements. Consequently, the Commission has generally coupled its determination abou'c whether it should issue an amendment with its determination about whether it should issue a notice after the fact, and the central factor in both determinations has been the determii. tion about "no significant hazards consideration." As discussed later, in practice this has meant that the staff has sometimes coupled the decision about the merits of an amendment to the decision about when it should notice the amendment, i.e., whether it should give prior notice or post notice.
Additionally, there has been some concern that the Act and the regulations have not defined the term "significant hazards consideration" and that they have not established criteria for determining when a proposed amendment involves a "significant hazards consideration." Section 50.59 does set forth criteria for determining when a proposed change, test or experiment involves an "unreviewed safety question," but it is clear that not every such question involves a "significant hazards consideration."
In any event, 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 also important to bear in mind that there is no intrinsic safety significance to the "no significant hazards consideration" standard.
Whether or. not an action requires prior notice, no license and no amendment may be issued unless the Comission 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.,550.57(a). Also, whether or not an amendment entails prior notice, no amendment to any license may be issued unless it conforms to all applicable Comission safety standards. Thus, the "no significant hazards consideration" standard has been a procedural standard only, governing whether public notice of a proposed action must be provided, before the action is taken by the Comission.
In short, the "no significant hazards consideration" standard has been a notice standard and has had no substantive safety significance, other than that attributable to the process of prior notice to the public and reascnable opportunity for a hearing.
B.
The Sholly Decision and the New Legislation The Comission'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 101 S.Ct.
3004 (1981) (Sholly).
In that case the U.S. Court of Appeals for the District of Columbia Circuit ruled that, under section 189a. of the Act, 1
NRC must hold a prior hearing before an amendment to an operating license
L L
4
~
.g.
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 Depart-ment of Justice, the Supreme Court agreed to review the Court of Appeals' l
interpretation of section 189a. of the Act. The Supreme Court has met l
i yet-astederemanded the case to the Court of Appeals with instructions to reconsider it in light of the legislation.
l l
~
The Court of Appeals' decision did not involve and has no effect upon the Comission's authority to order immediately effective amendments, without prior notice or hearing, when the public health, safety, or interest so l
requires. See, Administrative Procedure Act, 9 9(b), 5 U.S.C. 5 558(c),
section 161 of the Atomic Energy Act, and 10 C.F.R. El 2.202(f) and 2.204.
l l
Similarly, the Court did not alter existing law with regard to the j
l l
Comission's pleading requirements, which are designed to enable the i
Comission to determine whether a person requesting a hearing is, in fact, an " interested person" within the meaning of section 189a. -- that is, i
whether the person has demonstrated standing and identified one or more issues to be litigated. See, BPI v. Atomic Energy Comission, 502 F.2d 424, 428 (D.C. Cir.1974), where the Court stated that, "Under its procedural regulations it is not unreasonable for the Comission to require that the 1
prospective intervenor first specify the basis for his request for a hearing."
However, the Comission believed that legislation was needed to change the result reached by the Court in Sholly because of the implications of the requirement that the Comission grant a requested hearing be sre it could issue a license amendment involving no significant hazards consideration.
The Commission believes that, since most requested license amendments involving no significant hazards consideration are routine in nature, prior hearings on such amendments could result in unwarranted disruption or delay in l
the operations of nuclear power plants and could impose regulatory burdens upon it and the nuclear industry that are not related to significant safety matters. So'rv.luently, on March 11, 1931, the Commission subnitted proposed legislation to Congress (introduced as S.912) that rould expresaly authorize it to issue a license amendment before holding a hearirg requested 4 an interested person, 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 consideration:
"(2)(A) The Comission may issue and make immediately 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 Comission 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 detemining under this section whether such amendment involves no significant hazards consideration, the Commission shall consult with the State in which the facility 1
11 _
involved is located.
In all other respects such amendment shall meet'the requirements of this Act.
"(B) The Comission 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 (1) identify the facility involved; and (ii) provide a brief description of such amendment. Nothing in this subsection shall be construed to delay the effective date of any amendment.
"(C) The Commission 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 with prior notice and reasonable opportunity for public comment on any such determination, which 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 Comission, under the provisions of the amendment made by subsection (a), to issue and to make imediately effective any amendment to an operating license shall take effect upon the promulgation by the Comission of. the regulations required in such provisions.
Thus, as noted above, the legislation authorizes NRC to issue and make imediately effective an amendment to an operating license upon a determination that the amendment involves no significant' hazards consideration, even though NRC has before it a, request for a hearing from an interested person. At the same time, however, the legislative history makes it clear that Congress expects NRC to exercise its authority only
-in the case of amendments not involving significant safety questions.
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
l interest may be affected. The agreement simply authorizes the Commission, in those' cases where the amendment involved poses no significant hazards co'nsideration, 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 authority carefully, applying it only to those license amendments which pose no significant hazards consideration.
Id_. at p. 37.
In this regard, the Senate stressed:
its strong desire to preserve for the public a meaningful right to participate in decisions regarding the commercial use of nuclear power. Thus, the provision does not dispense with the requirement l'
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. 14 (1981).
It should be also noted, in light of the previous discussion about the coupling of the decision on the merits of an amendment with the decision about when to notice the amendment, tha't Section 12 of Public Law 97-415, by providing for prior public notice and comment, in effect uncouples the determination about prior versus post notice from the determination about whether to issue an amendment.
In sum, the Comission is promulgating as an interim final rule the proposed standards in i 50.92 for determining whether an amendment to an operating license involves no significant hazards consideration, and it is publishing separately an interim final rule to establish (a) procedures 1
for noticing operating license amendment requests for an opportunity for a 1
hearing, (b) criteria for providing or, in emergency situations, dispensing with prior notice and reasonable opportunity for public comment on any proposed determination on no significant hazards consideration, and (c) procedures for consulting with the requisite State on any such determination.
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t i
INTERIM FINAL RULE ON STANDARDS FOR DETERMINING WHETHER AN AMENDMENT TO AN OPERATT56 LICENSE INVOLVES NO SIGNIFICANT HAZARDS CONSIDERATIONS 1
AND EXAMPLES OF AMENDMENTS THAT ARE CONSIDERED LIKELY OR NOT LIKELY TO INVOLVE SIGNIFICANT HAZARDS CONSIDERATION 5 A.
Petition and Proposed Rule The Commission's interim final rule on standards for determining whether an amendment involves no significant hazards consideration completes its actions on the notice of proposed rulemaking (discussed above), which was issued in response to a petition for rulemaking (PRM 50-17) submitted by letter to the-Secretary of the Commission on May 7,1976, Mr. Robert Lowenstein.
For the reasons discussed below, the petition is denied. However, the Commission is promulgating standards, as !ntended by the petitioner, though not the standards petitioned for.
(PRM-60-17 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 prnposed rulemaking was published in the FEDERAL REGISTER on March 28, 1980 (45 FR 20491). The staff's recommendations on the interim final rule 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 Room at 1717 H Street, N.W. Washington, D.C.) The petitioner requested that 10 C.F.R. Part 50 of the Commission's regulations be amended with respect to the procedures for issuance of amendments to operating licenses for production and utilization facilities.)
The petitioner's proposed amendments to the regulations would have required that the staff take into consideration (in determining whether i
a proposed amendment to an operating license involves no significant l
hazards consideration) whether noeration of the plant under the proposed license amendment would (1) substantially increase the probability or
consequences of a major credible reactor accident er (2) decrease the margins of safety substantially below those previously evaluated for the
. plant'and below those approved for existing licenses.
Further, the petitioner proposed that, if the staff reaches a negative conclusion about both of these standards, the proposed amendment must be considered not to involve a significant hazards consideration.
In issuing the proposed rule, the Comission sought to improve the licensing process by specifying in the regulations standards on the meaning of no significant hazards consideration. These standards would have applied to amendments to operating licenses, as requested by the petition for rulemaking, and also to construction permits, to whatever extent considered appropriate. As mentioned before, the Comission now believes that these standards should not be applied to amendments to construction permits, not only because construction permits do not normally involve a significant hazards consideration but also because such amendments are very rare; the proposed rule has been modified accordingly.
Additionally, the Comission is reviewing the extent to which and the way standards should be applied to research reactors. The Comission will handle case-by-case any amendments requested for construction permits or for research reactors with respect to the issue of significant hazards considerations.
i In the statement of considerations which accompanied the proposed rule, the Comission explained that it did not agree with the petitioner's proposed standards because of the limitation to " major credible reactor i_________.______________________.____________.__.__
.- l accidents" and the failure to include accidents of a type different from-those previously evaluated.
During the past several years the Comission's staff has been guided, in reaching its determinations with respect to no significant hazards consideration, by standards very similar to those now described in this interim final rule as well as by examples of amendments likely to involve, and 'not likely to involve, significant hazards considerations.
These have proven useful to the staff, and the Commission employed them in developing the proposed rule. The r.:tice of proposed rulemaking cor.tained 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 significant 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, they had to be used together with standards te-be-applied-where-the-examples-were-net-definitive in determining whether or not a proposed amendmentinvolved significant hazards considerations.
The three standards proposed in the notice of proposed rulemaking were:
whether the license amendment would: (1) involve a significant increase in the probability or consequences of an accident previously evaluated, (2) create the possibility of an accident of a type different from any evaluated previously, or (3) involve a significant reduction in a margin of safety.
B.
Comments on the Proposed Rule Nine persons submitted comments on the petition for rulemaking and nine persons submitted comments on the proposed amendments. The comments on the petition are in SECY-79-660.
The comments on the proposed rule are in SECY file PR-2. 50 (45 FR 20491).
A sumary of the coments and initially-proposed responses to the comments are in SECY-81-366, available for examination at the Comission's Public Document Room.
In light of the legislation, the Comission has decided to make its approach more precise (as described below) and has, therefore, revised its response to the coments. The new response is found in SECY-83-16A and 83-16B.
A number of comenters recomended, 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 coment was not accepted.
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 previously evaluateo, may turn out after further evaluation to have more severe consequences than previously evaluated.
l 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 they result 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). Such amendments
~ u typically are 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 satisfactorily resolved by the issuance of the amendment. Accordingly, the Comission added to the list of examples cransidered likely to involve a significant hazards consideration a new example (vii).
When the legislation described before was being considered, the Senate Comittee on Environment and Public Works commented upon the Comission's proposed rule before it reported S.1207.
It stated:
The Comittee recognizes that reasonable persons may differ on whether a license amendment involves a significant hazards consideration. Therefore, the Comittee expects the Comission 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. The Committtee anticipates, for example, that consistent with prior practice, the Comission's standards would not permit a "no significant hazards consideration" determination for license amendments to permit 1
I reracking of spent fuel pools.
Id., at p.15.
The Comission agrees with the Comittee "that reasonable persons may differ on whether a license amendment involves a significant hazards consideration" and it has tried "to develop and promulgate standards that, to the maximum extend practicable, draw a clear distinction between license amendments that involve a significant hazards consideration and those that involve no
__________________________._.__m_
significant hazards consideration." The Commission believes that the standards coupled with the examples help draw as clear a distinction as practicable.
Therefere, It has decided not to include the examples in the text of the rule in addition to the original standards,,but, rather, to keep them as guidelines under the standards for the use of the Office of Nuclear Reactor Regulation.
i License amendment requests falling within the examples (n-new-E-50,92(b}(1) likely to involve significant hazards or (b)(2) those likely to involve no
~
significant hazards will normally be determined by operation of these-twe paragraphs, the examples, unless there-are-SevRd-se4eRtif4e-aRd-erg 4Reer4Rg reasens-te-the-sentrary, the specific circumstances of a license amendment reauest, when measured against the standards, lead to a contrary conclusion.
Those amendments that do not fit into the E-50,92(b)(1)-er-(b}{2) examples will be determined by application of the standards in the E-59,92(e),
rule, which will prevail at all times.
The Commission wishes licensees to note that when they consider license amendments falling within the examples of amendments likely to involve significant hazards considerations or not falling within any of the examples p.t only within the standards, the Commission may need additional time for action on amendments of this type; thus, they should factor this information into their schedules for developing and implementing such changes to facility design and operation.
The interim final rule thus goes a long way toward meeting the intent of the legislation.
In this regard, the Conference Report stated:
1 c-______-__________-_-
79 regulations required by the new subsection.(2)(C)(promulgating the The conferees also expect the Comission, in 1)ofsection189a.
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.
37(1982).
This statement should be read in light of the previous discussion.
It should be noted that the Comission has attempted to draft standards that are as useful and as clear as possible, and it has tried to formulate examples that will help in the application of the standerds. These final standards are the product of a long delibere^ive proce'ss. As will be recalled, standards were submitted by a petition for rulemaking in 1976~for the Comission's consideration. The standards and examples (n-this-interim-f4nal FWie are as. clear and certain as the Comission can make them -- and, to repeat the Conference Report, "should ensure that the NRC staff does not resolve doubtful or borderline cases with a finding of no significant hazards consider-l ation." The Comission welcomes suggestions from the public to make them clearer and more precise, recognizing, in the Senate Comittee's words, "that reasonable persons may differ on whether a license amendment involve a sig-nificant hazards consideration."
l Returning to the Senate Comittee Report noted above with respect to the issue of a reracking of a spent fuel pool, the Comission has-alveady-been-treating-a-rerask4mg-ef-a-spent-fWei-peel-as-4f-4t-were-likely o
te-invelve-a-sign 4f4sant-hazards-eens4deratien -asserdinglys-a-ReW-EMample s
(viii)-has-been-added-te-the-list-ef-examples-4n-6-59,92(b)(1)-te-make elear-that-a-rerask4ag-ef-a-spent-fwel-sterage-peel-shewid-be-treated-4n the-same-way-as-an-example-sensidered-likely-te-invelv4ag-a-significant hazards-sensideratient--Nete-thats-under-$-134-ef-the-Hwelear-Waste-Pel4ey Aet-ef-1982 -4f-a-bearing-is-heid-4R-seRaestien-With-this-type-ef-EMampley 5
4t-wswid-take-the-ferm-ef-a " hybrid"-heariage has been providing, as a matter of public interest, prior notice and an opportunity for a prior hearing on amendment requests involving this issue. As explained in the separate FEDERAL REGISTER notice, it will continue to offer prior notice for public comment of these and other amendment requests.
It is not prepared to say, though, that a reracking of a spent fuel storage pool should or should not be treated in the same way as an example considered likely or not likely to involve a significant hazards consideration.
l Each such amendment request should be treated with respect to its own l
l intrinsic circumstances, using the standards in 5 50.92 of the rule to 1
make a judgment about significant hazards considerations.
Consequently, the Commission has decided not to include reracking of a spent fuel storage pool in the list of examples or in the rule.
If it does determine that a particular reracking involves significant hazards considerations, it will provide an opportunity for a prior hearing, as explained in the separate FEDERAL REGISTER notice. Additionally, it should be noted that under section 134 of the Nuclear Waste Policy Act of 1982, an interested party may request a " hybrid" hearing rather than a formal adjudicatory hearing in connection with ceracking, and may participate in such a hearing.
if one is held. The Commission will publish in the near future a FEDERAL l
I
~ REGISTER notice describing this type of hearing with respect to expansions of spent fuel storage capacity and other matters concerning spent fuel.
Returning to,the Conference Committee's statement, quoted above, tha't the " standards should not require the NRC staff to prejudge the merits of the issues raised by a proposed license amendment," as will be recalled, it has been the Commission's general practice to couple the determination about prior versus post notice with the determination about issuance of an amendment; thus, occasionally, the issue of prior versus post notice was included with a judgment on the merits about issuance of an amendment.
In the same context, one commenter 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 issues which bear on the merits of the license amendment.
The implication of the coment was that the Comission 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.
In any event, the legislation has made these coments moot by requiring separation of the criteria used for providing or dispensing with public notice and'coment on no significant hazards consideration determinations from the standards used to make a determination about no significant hazards consideration. Under the legislation, the Commission's criteria
_ 22 -
for public notice and comment would not be the same as its standards on the determination about no significant hazards consideration.
In fact, the Commission will normally provide prior notice (for public comment and for an opportunity for a hearing) for each operating license amendment request, thereby, normally uncoupling its determinations about prior versus post notice from its determinations about issuance of the amendment.
(The Commission's criteria on public notice and comment are discussed in the separate FEDERAL REGISTER notice noted before.) Additionally, the Commission believes that use of these standards and examples will help it reach sound decisions about the issues of significant versus no significant hazards considerations and that their use would not prejuge the merits of a decision about holding as opposed to not holding a prior hearing on a requested amendment.
It holds this belief because the standards and the examples are I
merely screening devices for a decision and cannot be said to prejudge the Commission's final decision to issue or deny the amendment request. As i
explained above, that decision is a separate one, based on separate public l
1 health and safety findings.
l 1
l I
l The Conference Report also stated:
l I
l The conferees intend that in determining whether a proposed I
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-I tion emitted from a faci hty or allowing a f acility to operate l
for a period of time without full safety projections).
In those I
cases, issuing the order in advance of a hearing would, as a l
practical matter, foreclose the public's right to have its views I
considered.
In addition, the licensing board would often be unable to order any substantial relief as a result of an after-the-fact i
hearing. Accordingly, the conferees intend the Commission be 1
1
' ~.. sensitive to those license amendments which involve such irreversible consequences.
(Emphasis added)- I_d. at 37-38.
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 Comission'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 Commission 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. DOMENICI.
I thank the Senator for the clarification.
That is consistent with my readings of the language...
134 Cong.
Rec. (Part II) S. 13056 (daily ed. Oct. 1, 1982).
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 Sho11y 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 possible 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 Commisison 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 significant hazards issues will take effect prior to a public hearing.
Id. (Part III) at S. 13292.
In light of the Conference Report and colloquies quoted above, the Commission wishes to note that it will make sure "that only those amendments that clearly raise no significant hazards issues will take effect prior to a public hearing."
In this regard, it has decided to add the two examples described in the Conference Report to its list of examples. (n-E-50,92(a), Accordingly, a new example (viii) has been added to the list of examples in-5-50,92(a) and example (iii) has been revised to make clear that, as a matter of public policy, an amendment which involves sweh-4Frevers4ble-sensequenses-as (in example (viii)) a significant increase in the amount of effluents or radiation a facility emits or as (in revised example (iii)) allowing 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 the other examples considered likely to involve I
a significant hazards consideration.
Each amendment request falling within these two examples will be examined carefully by the Commission in light of the applicant's specific circumstances.
I Finally, it is once again important to note that the examples (n-E-59,92(b)(1) and-(b)(2) do not cover all possible examples and may not be representative
7- - ------
L i
1
. l 1
of all possible preblems and concerns.. As-preblems-are-reselved-and-as new information is developed, the Comission will refine these examples and add new examples, in keeping with the standards in 5 50.92 of the interim final rule -- and, if necessary, it will tighten the standards themselves.
The Comission has left the proposed rule intact to the extent that the rule states standar'ds with respect to the meaning of "no significant hazards consideration." The standards in the interim final rule (new-5-59,92(e))
are substantially identical to those in the proposed rule, though the attendant language in new 5 50.92 as well as in 5 50.58 has been revised (1) to make the determination easier to use and understands-(2)-te-4Reerperate-the-examples
( f e rme rly-4 n -t h e-p re ambl e -e f-th e-p re p e s e d-ru l e )-i n te-t h e - ru le -( 5 - 59,92 ( b )(1) a n d -( b ) (2 ))-4 n-e rd e r-t e-b e t te r-e a r ry-e w t-t h e -i n te n t-e f-t h e -l e g i s l a t 4 e n,-( 3 )
and-te-ensure-eens4steney-between-the-4nterim-final-rule-and-the-prepesed-ruler To supplement the standards that are being incorporated into the Comission's regulations, the examples will be incorproated into the procedures of the Office of Nuclear Reactor Regulation, a copy of which will be placed in the Comission's Public Document Room.
EXAMPLES OF AMENDMENTS THAT ARE CONSIDERED LIKELY TO INVOLVE SIGNIFICANT HAZARDS CONSIDERATIONS ARE LISTED BELOW Unless the specific circumstances of a license amendment request, when measured against that the standards in 5 50.92, lead to a contrary conclusion, then, pursuant to the procedures in 6 50.91, a proposed amendment to an operating license for a facility licensed under % 50.21(b)
L
- 26.-
l l
or 6 50.22 or for a testing facility will likely be found to involve 1
significant hazards considerations, if operation of the facility in accordance with the proposed amendment involves one or more of the following:
(1) A significant relaxation of the criteria used to establish <
safetyl'.dts.
(ii). A significant relaxation 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 compensatory changes, conditions, or actions that maintain a commensurate level of safety (such as allowing a plant to operate at full power during which one or more safety systems are not operable).
(iv) Renewal of an operating license.
(v) For a nuclear power plant, an increase in authorized maximum core power level.
(vi) A change to technical specifications or other NRC approval involving a significant unreviewed safety question.
(vii) A change in plant operation designed to improve safety but which, due to other factors, in fact allows plant operation with safety margins of some significance reduced from those believed to have been present when the license was issued.
(v444)--Rerask4ng-ef-a-spent-fuel-sterage-peele (viii) Permitting a significant increase in the amount of effluents or radiation emitted by a nuclear power plant.
e.
4, 1,.
27 -
EXAMPLES OF AMENDMENTS THAT ARE CONSIDERED NOT LIKELY TO INVOLVE SIGNIFICANT HAZARDS CONSIDERATIONS ARE LISTED BELOW Unless the ' specific circumstances of a license amendment request, when measured against the standards in i 50.92, lead to a contrary conclusion then, pursuant to the procedures in 6 50.91, a proposed amendment to an operating license for a facility licensed under 9 50.21(b) or 6 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 throughout 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 example, 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 NRC 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.
i
i l
(iv) A relief granted upon demonstration of acceptable operation from an operating restriction that was imposed because acceptable i
operation was not yet demonstrated. This assumes that the operating restriction and the criteria to be applied to a request for relief have been established in a prior review and that satisfaction of the criteria L
l 1s essentially self-evident.
(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 satis-factorily. This is intended to involve only restrictions where it is l
essentially self-evident whether construction has been completed satis-l factorily.
(vi) A change which either may result in some increase to the probability or consequences of a previously-analyzed accident or may reduce is 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 Review 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-owners already shown in the license.
I
.- 4,,
Paperwork Reduction Act Statement This final rule contains' no new or amended requirements for record keeping, reporting, plans or procedures, applications or any other type
.of information collection.
Regulatory Flexibility Certif.ciition In accordance with the Regulatory Flexibility Act of 1980, 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 companies that own these plants do not fall within the scope of the de"inition of "small entities" set forth in the Regulatory Flexibility Act or the Small Business Size Standards set out in regulations issued by the Small Business Administration at 13 C.F.R. Part 121.
Since these companies are dominant in their service areas, this rule does not fall within the purview of the Act.
Regulatory Analysis The Commission has prepared a regulatory analysis on these amendments, assessing the costs and benefits and resource impacts.
It may be examined at the address indicated above.
Pursuant to the Atomic Energy Act of 1954, as amended, the Energy Reorgani-zation Act of 1974, as amended, and Sections 552 and 553 of Title 5 of the United States Code, notice is hereby give,n that the following amend-
l p
ments to Title 10, Chapter I, Code of Federal Regulations,10 C.F.R.
L Part 50, are! published'as a document subject to codification.--
List of Subjects in 10 C.F.R. Part 50.
Part 50 Antitrust, Classified information, Fire prevention, Inter,.
governmental relations, Nuclear power plants and reactors, Penalty, Radiation protection, Reactor siting criteria, Reporting requirements.
PART 50 -- DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION FACILITIES 1.
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, 5842, 5846), unless otherwise noted.
Section 50.7 also issued under Pub. L.95-601, sec.10, 92 Stat. 2951 (42 U.S.C.5851).
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 and 50.81 also
'?.
- issued under sec.184, 68 Stat. 954, as amende'd (42 U.S.C. 2234).
Sections 50.100-50.102 also issued under sec.186, 68 U.S.C. 955 (42 U.S.C 2236).
For the purposes of sec. 223, 68 Stat.'958, as amended (42 U.S'C. 2273),
69 50.10(a), (b), and (c), 50.44,50.46,50.48,50.54,and50.80(a)are issued under sec. 161b, 68 Stat. 948, as amended (42 U.S.C. 2201(b));
59'50.10(b)and(c)and50.54areissuedundersec. 1611, 68 Stat. 949, as amended'(42 U.S.C. 2201(1)); and si 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)).
2.
In 5 50.58, paragraph (b) is revised to read as follows:
650.58 Hearings and report of the Advisory Committee on Reactor Safeguards.
(b) 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 950.21(b) or 550.22 of this part, or which is a testing facility. When a construction pennit has been issued for 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, 1
.[
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 operating license without a hearing, upon 30-days' notice and publication once in the FEDERAL REGISTER of its intent to do so.
If the Commission finds, in an emergency situation, as defined in 5 50.91, that no significant hazards consideration is presented by.an application for an amendment to a-seRstFwEtieR-peFRit-eF-te an operating license, it may dispense with public sush notice and publieatien and comment and may issue the amendment.
If the Comission finds that exigent circumstances exist, as described in 5 50.91, it may reduce the period provided for' public notice and comment. Both ir, an emergency situation and in the case of exigent circumstances, the Commission will provide 30 days notice of opportunity for a hearing, though this notice may be published after issuance of the amendment if the Commission determines that no significant hazards considerations are involved. The Commission will use the standards in 5 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 0 50.21(b) or 9 50.22, or which is a testing facility, and may make the amendment immediately effective, notwithstanding the pendency before it of a request for a hearing from any person, in advance of the holding and completion of any required hearing, where it has determined that no significant hazards consideration is involved.
~
3.
Section 50.91 is redesignated as 5 50.92 and revised to read as follows:
1
.5 50.92 Issuance of cmendment.
In determining whether an amendment to a license or construction permit will be issued to the applicant, the Commission will;be guided by the consider-ations 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 construction permit will be issued prior to the issuance of the amendment to the license.
If the amendment involves a significant hazards consideration, the Commission will give notice of its proposed action pursuant to 6 2.105 of this chapter before acting thereon.
The notice will be issued as soon as practicable after the application has been docketed. The Commission may make a final determination, pursuant to the procedures in 5 50.91, that a proposed amendment to an operating license for a facility licensed under 6 50.21(b) or 6 50.22 or for a testing facility involves no significant hazards considerations, if operation of the facility in accordance with the proposed amendment would not:
(a)
Involve a significant increase in the probability or consequences of an accident previously evaluated; or (b)
Create the possibility of a new or different kind of accident from any accident previously evaluated; or
' f, (c)
Involve a significant reduction in a margin of safety.
Dated at Washington, D.C. this day of
, 1983.
For the Nuclear Regulatory Comission, Samuel J. Chilk Secretary for the Comission l
y r--
.,g 88 4
O ENCLOSURE 4 I
_ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ -. - _ _ _ _ _ _ _ - ___ _-_____ _ _ __ _ - _ _ _____-_- _ - _ _ _ _ ____- - --_-__ _ _ _ __ _ - _ _ a
_ ~,.
L
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v.
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l u'
[7590-01]
L NUCLEAR REGULATORY COMMISSION 10 C.F.R. Parts 2 and 50 Notice and State Consultation AGENCY:
' Nuclear Regulatory Commission, i
ACTION:
Interim final rule.
SUMMARY
Pursuant to Public Law 97-415, NRC is amending its regulations (1) to provide procedures under which normally it would give prior notice of opportunity for a hearing on applications it receives to amend operating licenses for nuclear power reactors and testing facilities, (research reactors are not covered) and prior notice and reasonable opportunity for public comment on proposed determinations about whether these ame.ndments involve no significant hazards considerations, (2) to specify criteria for dispensing with such prior notice and reasonable opportunity for public comment in emergency situations, and (3) to furnish procedures for consultation on any such determinations with the State in which the facility involved'is located.
These procedures will 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 actions.
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EFFECTIVE DATE:
The Commission invites comments on this interim I
' final rule by
- Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given except as to coments received on or before l
this date.
l ADDRESSES:
Written comments should be sent to the Secretary of the Comission, U.S. Nuclear Regulatory Comission, Washington, D.C. 20555, l
l Attention: Docketing and Service Branch. Copies of comments received on l
the amendments as well as on the Regulatory Analysis proposed in connection with the amendments may be examined in the Comission's Public Document Room at 1717 H Street, N.W., Washington, D.C.
l FOR FURTHER INFORMATION CONTACT:
Thomas F. Dorian, Esq., Office of the l
Executive Legal Director, U.S. Nuclear Regulatory Comission, Washington, D.C.
20555. Telephone: (301)492-8690.
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l SUPPLEMENTARY INFORMATION:
L INTRODUCTION Public Law 97-415, signed on January 4,1983, among other things, directs i
NRC to promulgate regulations which establish (a) standards for determining whether an amendment to an operating license involves no significant hazards
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30 days following publication in the FEDERAL REGISTER. This footnote will be deleted after Comission action.
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. consideration, (b) criteria for providing or, in emergency situations, dis-p'ensing with prior notice and public comment on any such determination, and (c) procedures for ::onsulting'on such a determination with thc State in which the facility involved is located. See Conf. Rep. No.97-884, 97th Cong.,
2dSess.(1982). The legislation also authorizes NRC to issue and snake imediately 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. This rulemaking and request for comments responds to the statutory directive that NRC expeditiously promulgate regulations on items (b) and (c) above.
NRC is also publishing separately in the FEDERAL REGISTER interim final regulationsonitem(a)above.
These regulations are issued, as final though in interim form, and coments will be considered on them. They will become effective 30 days after publi:ation in the FEDERAL REGISTER. Accordingly, interested persons who wish to comment are encouraged to do so at the earliest possible time, but not later than 30 days after publication, to permit the fullest consideration of their views.
BACKGROUND l
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. 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
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, construction' permit or operating license for a nuclear power reactor in the absence of.a request from an interested person.
In 1957, the Act l
was amended to require that mandatory hearings be held before issuance k
of both a construction permit and an operating license for power reactors and certain other facilities. 'Public Law 85-256 (71 Stat. 576)
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amending section 189a. of the Act.
The 1957 amendments to the Act were interpreted by the Comission as requiring a " mandatory hearing" before issuance of amendments to construction permits and operating licenses.
(See,e.g.,HearingBefore the Subcommittee on Legislation, Joint Committee on Atomic Energy, 87th 1
.)
Cong., 2d. Sess. (April 17, 1962), p. 6.) Partially in response to the administrative rigidity and cumbersome procedures which this j
i interpretation forced upon the Comission (see, Joint Comittee on d
f Atomic Energy Staff Study, " Improving the AEC Regulatory Process", March j
i 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 1
the report of the Joint Committee on Atomic Energy which recommended the amendments:
1 Accordingly, this section will eliminate the requirements for a mandatory hearing, except upon the application for a construction i
permit for a power or testing facility.
Under this plan, the j
issuance of amendments to such construction permits, and the issuance of operating licenses and 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 absence 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 requirement where the application presents no significant hazards consideration. This criterion is presently
' being applied by the Commission under the terms of AEC Regulations 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, now provides that, upon thirty-days' notice published in the FEDERAL REGISTER, the Commission may issue an operating 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 requested by any interested person.
Section 189a. also permits 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 determination by the Commission that the amendment involves no significant hazards consideration. These provisions have been incorporated into 55 2.105, 2.106, 50.58(a) and (b) and 50.91 of the Commission's regulations.
The regulations provide for prior notice of a " proposed action" on an application for an amendment when a determination is made that there is
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'. a significant hazards consideration and' provide an opportunity for interested members of the public.to request a hearing. See 66 2.105(a)(3) and 50.91.
Hence, if.a requested. license amendment is found to involve a significant hazards consideration, the amendment would not be issued until after any required hearing is completed or after expiration of the notice period.
In addition, 6 50.58(b) further explains the Comission's hearing and notice l
procedures, as follows:
The Comission will hold a hearing after at least 30 days notice L
and publication once in the FEDERAL REGISTER on.each application for a construction pennit for a production or utilization facility l
which is of a type described in s 50.21(b) or i 50.22 or which is a I
testing facility. When a construction permit has been issued for l
such a facility following the holding of a public hearing and an l
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 m=y bE affected, may issue an operating license.or an amen &w: to a construction permit or operating license without a hearing, upon 30 days notice and publication once in the FEDERAL REGISTER 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 g
license, it may dispense with such notice and publication and may issue the amendment.
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 i 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.
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It is important to bear in mind that there is no intrinsic safety significance to the "no significant hazards consideration" standard.
Whether or not an action' requires prior notice, 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.,550.57(a). Also, whether or not an amendment entails prior notice, no amendment to any license may be issued unless it conforms to all applicable Com;aission safety standards. Thus, the "no sign'ificant hazards consideration" standard has been a procedural standard only, governing whether public notice of a proposed action must be provided, beforetheactionistakenbktheCommission.
In short, the "no significant hazards consideration" standard has been a notice standard and has had.no substantive safety significance, other than that attributable to the process of prior notice to the public and reasonable opportunity for a hearing.
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 101 S.Ct.
3004 (1981) (Sholly).
In that case the U.S. Court of Appeals for the District of Columbia Circuit ruled that, under section 189a. of the Act,
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' NRC must hold a prior hearing.before an amendment to an oper; ting license i
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for u 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.
.j a. hearing). A prior hearing,-said-the _ Court, is required even when NRC has made a finding that a proposed amendment involves no sigriificant
. hazards consideration and has determined to dispense with prior' notice in the FEDERAL REGISTER. At the request of the Comission and the Depart-ment of Justice, the Supreme Court agreed to review the Court of Appeals' interpretation of.section 189a.-of the Act. The Supreme Court has net-yet-asted. vacated the' Court of Appeal's decision and instructed it to reconsider it in light of the legislation.
The Court of Appeals' decision did'not involve and has no effect upon the Comis-sion's authority to order imediately effective amendments, without prior
- notice or hearing, when the-public health, safety, or interest so requires.
See, Administrative Procedure Act, 9 9(b), 5 U.S.C. 9 558(c), section 161 of the Atomic Energy Act, and 10 C.F.R. El 2.202(f) and 2.204. Similarly, the Court did not alter existing law with regard to the Comission's pleading requirements, which are designed to enable the Comission to detennine 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 Energy Comission, 502 F.2d 424, 428 (D.C. Cir.1974),
where the Court stated that, "Under its procedural regulations it is not 1
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.. unreasonable for the Comission to require that the prospective intervenor first specify the basis for his request for a hearing."
However, the Comission believed that legislation was needed to char.ge the result reached by the Court in Sholly because of the implications of the requirement that the Comission grant a requested hearing before it could issue a license amendment involving no significant hazards consideration.
The Comission believes that, since most requested license amendments involving no significant hazards consideration are routine in nature, hearings on such amendments could result in disruption or delay in the operations of nuclear power plants and could impose regulatory burdens upon it and the nuclear industry that are not related to significant safety matters. Subsequently, on March 11, 1981, the Commission submitted proposed legislation to Congress (i.ntroduced as S.912) that would expressly authorize it to issue a license amendment before holding a hearing requested by an interested person, 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, section12(a)ofthatlawamendssection189a.oftheActbyaddingthe following with respect to license amendments involving no significant hazards considerations:
' "(2)(A) The Commission may issue and make immediately effective any amendment to an operating license, upon a determination by the
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Comission that such amendment involves no significant hazards consideration, notwithstanding the pendency before the Comission of a request for a hearing from any person.
Such amendment may be issued and made immediately effective in advt.nce of the holding and completion of any required hearing.
In determining under this section l
whether such-amendment involves no significant hazards consideration, l
the Comission 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) provide a brief description of such amendment. Nothing in this subsection shall be construed to delay the effective date of any amendment.
"(C) The Commission 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 reasonable opportunity for public coment on any such determination, which 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 Comission, under the provisions of the amendment made by subsection (a), to issue and to make imediately effective any amendment to an operating license shall take effect upon the promulgation by the Comission of the regulations required in such provisions.
Thus, as noted above, the legislation authorizes NRC to issue and make imediately effective an amendment to an operating license upon a determination that the amendment involves no significant hazards consideration, even though NRC has before it a request for a hearing from
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. an interested person.
At the same time, however, the legislative history makes it clear that Congress expects NRC to exercise its authority only in the case of amendments not involving significant safety questions.
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 authority carefully, applying it only to those license amendments which pose no significant hazards consideration.
Id. at p. 37.
In this regard, the Senate stressed:
l its strong desire to preserve for the public a meaningful right to participate in decisions regarding the commercial use of nuclear power. Thus, the provision does not dispense with the requirement 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. 14 (1981).
The public notice provision was explained by the Conference Report as follows:
I The conferees note that the purpose of requiring prior notice and an opportunity for public comment 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 input 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 Comission 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.
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The requirement in subsection 2(C)(ii) that the Commission 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 Comission should publish prior notice of, and provide for prior public comment on, such a proposed determination.
In the context of subsection (2)(C)(ii), the conferees i
l understand the term " emergency situations" to encompass only those rare cases in which immediate action is necessary tc prevent the shutdown or derating of an operating commercial reactor...
The Comission'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 Comission 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.
38(1982).
C.
Notice for Public Coment and for Opportunity for a Hearing.
The Comission has decided to adopt the notice procedures and criteria contemplated by the legislation with respect to determinations about no significant hazards consideration.
In addition it has decided to combine the notices.for public comment on no significant hazards considerations with the notices for opportunity for a hearing, thereby, normally providing both pr,ior notice of opportunity for a hearing and prior notice for public comment of requests it receives to amend operating licenses of facilities described in 5 50.21(b) or 6 50.22 or of testing facilities.
l With respect to opportunity for a hearing, the Comission would amend 6 2.105 to specify that it could normally issue in the FEDERAL REGISTER at least monthly a list of " notices of proposed actions" on requests for
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.,. amendments to operating licenses. These monthly notices would provide an opportunity to request a hearing within thirty days. The Comission would also retain the option of issuing individual notices, as it sees fit.
If the Comission does not receive any request for a hearing on an amendment within the notice. period, it would take the proposed action when it has completed its review and made the necessary findings.
If it receives such a request, it would act under a new 5 50.91, which describes the procedures and criteria the Comission would use to act on applications for amendments to operating licenses involving no significant hazards considerations.
(The interim final rule on " Standards for Determining Whether License Amendments Involve No Significant Hazards Considerations," published separately in the FEDERAL REGISTER, redesignated the present 6 50.91 as S 50.92.)
To implement the main theme of the legislation, under new i 50.91 the Comission would combine a notice of opportunity for a hearing with a notice for public coment on any proposed determination on no significant hazards consideration. Additionally, new 9 50.91 would permit the Comission to make an amendment imediately effective in advance of the holding and completion of any required hearing where it has determined that no significant hazards consideration is involved. Thus, 5 50.91 would build upon amended 9 2.105, providing details for the system of FEDERAL REGISTER notices.
For instance, exceptions would be made for emergency situations, where no prior notices (for opportunity for a hearing and for public comment) might be issued, assuming no significant hazards considerations are involved.
In sum, this system would add a " notice for public coment" under 6 50.91 to the present system of " notice E
' of proposed action" under 6 2.105 and " notice of issuance" under s 2.106.
Under this new system, the Commission would reouire an applicant requesting an amendment to its operating license (1) to provide its appraisal on the issue of significant hazards, using the standards in % 50.92 and the examples discussed in the separate FEDERAL REGISTER notice, and (2), if it involves the emergency or exigency provisions, to address the features on which the Comission must make its findings.
(Both points will be discussed later.)
When the Comission receives the amendment request, as described below, it would first decide whether there is an emergency or an exigency.
If there is no emergency, it would then make a preliminary decision, called a " proposed determination," about whether the amendment involves no significant hazards consideration -- normally, this would be done before completion of the safety analysis (also called safety evaluation).
In this 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 conclusion.
At this stage, if the Comission decides that no significant hazards consideration is involved, it could issue an individual FEDERAL REGISTER notice or list this amendment in its monthly publication in the FEDERAL REGISTER. This monthly publication would not only list amendment requests received for which the Comission is publishing notice under 5 2.105, it would also provide a reasonable opportunity for public coment by listing this and all amendment requests received since the last such monthly notice, and, like an individual notice, (a) providing a brief description of the amendment
i and of the facility involved, (b) noting the proposed no significant hazards consideration determination, (c) soliciting public comment on the determination, and (d) providing for a 30-day comment period.
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While it is awaiting public comment, the Commission would proceed with the safety analysis.
In this context, the Comission wishes to note that, though the substance of the public comments could be litigated in a hearing, when one is held, neither it nor its Boards will entertain hearing requests on its actions with respect to these comments.
It believes that this is in keeping with the legislation which states that public comment cannot delay the ef.fective date of an amendment.
After the public comment period, the Comission would review the comments, consider the safety analysis, and reach its final decision on the amendment request.
If it decides that no significant hazards consideration is involved, it would publish an individual " notice of issuance" under 9 2.106 or publish the notice of issuance in its system of monthly FEDERAL REGISTER notices, and thus close the public record. Note that the Commisison would not make and publish a final determination on no significant hazards consideration because such a determination is needed only if a hearing request is received and the Comission decides to make the amendment immediately effective and provide a hearing after issuance rather than before.
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If it receives a hearing request during the coment period and the Comission has decided that no significant hazards consideration is involved, it would prepare a " final determination" on that issue, make the requisite safety and public health findings, and proceed to issue the amendment. The hearing request would be treated the same way as in
. previous Comission practice, that is, by providing any requisite hearing after the amendment has been issued. As explained before, the icgislation permits the Comission to make an amendment imediately effective, r atwith-standing the pendency before it of a request for a hearing from any person (even one that meets the provisions for intervention in 6 2.714), in advance of the holding and completion,of any required hearing, where it has determined that no significant hazards consideration is involved. The Comission wishes to state in this regard that any question about its staff's determinations on the issue of significant versus no significant hanrds consideration that may be raised in any hearing on the amendment will not stay the effective date of the amendment.
The Comission believes that the proc ~edure just described would be its usual way of handling license amendments, because most of these do not involve emergency or exigent situations and do not entail a determination that signi-ficant hazards consideration is involved. These twe three situations and other unusual ones could arise though.
Returning to the initial receipt of an application, if the Comission receives an amendment request and then determines that a significant hazards
.. consideration is involved, it would handle this request in the same way it does now, by issuing an individual notice of proposed action and providing an opportunity for a hearing under 9 2.105. The only change in its present l
procedure would be that it could notify the public of the final disposition of the amendment by noting its issuance or denial in the monthly FEDERAL REGISTER notice instead of in an individual notice.
Annther possibility might be that the Commission receives an amendment request and finds an emergency situation, where' failure to act in a timely way would result in derating or shutdown of a nuclear power plant.
In this case, also discussed later in co.nnection with State consultation, it may proceed to issue the license amendment, if it determines, among other thinos, that no significant hazards consideration is involved.
In this circumstance, the Commission might not necessarily be able to provide for prior notice for opportunity for a hearing or for orior notice for public comment and might therefore use its present procedure, publishing an individual notice of issuance under 9 2.106 (which provides an opportunity for a hearing after the amendment is issued.) Additionally, the Commission's monthly FEDERAL REGISTER notice system would note the Commission's action on the amendment reouest and, thereby, provide an opportunity for public comment.
In connection with emer-gency requests, the Commission expects its licensees to apply for license amendments in a timely fashion.
It will consider denying a license amendment where it determines that the applicant has failed to make a timely application for the amendment in order to create the emergency and to take advantage of the
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. emergency provision. Whenever a threatened closure or derating is involved, l
the Commission expects the applicant to explain to it why this emergency situationhasoccurredandwhytheapplicantcouldnotavoidit;the Commission will assess the applicant's reasons for failure to file an application sufficiently in advance of that event.
Still another possibility might be that the Commission receives an amendment request and finds an exigency, that is, a situation other than an emergency where swift action is necessary. The legislation, quoted above, states that the Commission should establish criteria which "take into account the exigency of the need for the amendment." The Conference Report, quoted above, points out 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 to allow residents of the area surrounding the facility an adequate opportunity to formulate and submit reasoned comments."
The Commission believes that extraordinary situations 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 to provide 30 days ordinarily allowed for public comment.
For instance, such a circumstance may arise where a licensee, while shutdown for a short time, wishes to add some component clearly more reliable than one presently installed or wishes to use a different method of testing some system
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and that method is clearly better than one providing for in its Technical Specifications.
In either case, the licensee may have to request an amendment, and, if the Commission determines, among other things, that no significant hazards consideration is involved, it nay wish to grant the request before the licensee starts the plant up and the opportunity to improve the plant is lost.
In circumstances such as the two just described, the Commisison 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 surrounding the facility, to inform the public of the licensee's amendment request.
In these instances, the Commission will provide the public a reason-able opportunity to comment on the proposed no significant hazards determination.
semmensurate-with-the-time-available-although-shert-ef-the-nermal-30-day samment-per4ed, To ensure that the comments are received on time, the Commission may also set up in such a situation a toll-frae hotline, allowing the public to telephone their comments to NRC on the amendment request.
It should be noted that this method of prior notice for public comment will tgt s in addition to the routine notice of the amendment in the monthly 4
FEDERAL REGISTER compilation or to any individual notice of hearing that may 1g published ; and it will not affect the time available to exercise one's 1
opportunity fer to request a hearing, though it may provide that opportunity only after the amendment has been issued, when the Commission has determined that no significant hazards consideration is involved.
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. The Comission will use these procedures sparingly and wants to make sure that its licensees will not take advantage of these procedures. Therefore, it will use criteria, somewhat similar to the ones it will use with respect to emergency situations, to decide whether it will shorten the coment period j
and' change the type of notice nonnally provided.
Consequently, in connection with requests indicating an exigency, the Commission expects its licensees to apply for license amen'dments 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 amend-ment in order to create the exigency and to take advantage of the exigency provision. Whenever a licensee wants to use this provision, it will have to explain to the Commission the ra".on for the exigency and why the licensee cannot avoid it; the Commission will assess the licensee's reasons for failure to file an application sufficiently in advance of its proposed action or for its inability to take the action at some later time. Moreover, the the Commission will grant an amendment request in an exigency and change its normal notice and public comment procedures, only if it finds that the licensee's action pursuant to its request (1) is authorized by law and will not endanger life or property or the common defense and security and is otherwise in the public interest -- this is the standard used for specific exemptions under 6 50.12(a) -- and (2) involves no significant hazards considerations.
i Another different circumstance may also present itself to the Comission.
For instance, it could receive an amendment request with respect to which it l
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.;,. 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 and notify the public about the final disposition of the amendment in a notice of issuance or denial in its monthly FEDERAL REGISTER notice, instead of in an individual notice.
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It should also be noted that these procedures only apply to license applications. The Commission may, under existing 55 2.202(f) and 2.204, make a determination that the public health, safety, or interest requires it to order an amendment without prior notice for public comment or opportunity for a hearing.
In this case, the Commission would 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.
This new system would change only the Commission's noticing practices; it would not alter the Commission's hearing practices. The Commission 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; nevertheless, they are quite burdensome and involve significant resGJrce impacts and timing delays for the Commission and for licensees requesting amendments.
Licensees would be able to reduce these delays, under the proposed procedures, by providing to the Commission their appraisals on the issue of significant hazards.
There might also be other ways to make the noticing procedures simpler t
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.. and to assure.that the opportunity for public comment is not curtailed.
The Comission is therefore particularly interested in comments addressing the workability of its proposed noticing procedures.
Finally, with respect to amendment requests received before the interim final rule. takes effect, the Comission proposes to keep its present procedures and not' provide notice for public coment on amendments' requested on which the l
Comission has not acted before the effective date of the interim final rule.
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D.
State Consultation As noted above, Public Law 97-415 requires the Comission to consult with the State in which the facility involved is located and to promulgate regu-l 1ations which prescribe procedures for such consultation on a determination 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 for an amendment; (2) The State would be advised of the NRC's evaluation of the amendment request; (3) The NRC's proposed determination on whether the license 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; (4) The NRC would listen to and consider any comments i
I provided by the State official designated to consult with the NRC; and l
(5) The NRC would make a good faith attempt to consult with the State prior to issuing the license amendment.
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' At the same time, however, the procedures for State consultation 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 power plants.
In requiring the NRC to exercise good 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 NRC, 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 significant hazards consideration, if the NRC deems it necessary to avoid the shut-down or derating of a power plant.
Id,., at 39.
The Comission believes that the law and its legislative history are quite specific. Accordingly, it proposes to adopt the elements described in the Conference Report quoted above in those cases where it makes a proposed determination on no significant hazards consideration. Nonnally, the State consultation procedures would work as follows. To make the State consultation process simpler and speedier, the Commission would require an applicant requesting an amendment to send a copy of its appraisal on the question of no significant hazards to the State in which the facility involved is located.
(The NRC is compiling a list of State officials who have been designated to consult with it on amendment requests involving no significant hazards considerations; it intends to make this list available l
l l
e
. to all its licensees with facilities covered by 6 50.21(b) or 6 50.22 or with testing facilities.)
The Comission would send its FEDERAL REGISTER notice, or other notice in case of exigent circumstances, containing its proposed determination to the State official designated to consult with it together with a request to that person to contact the Comission if there is any disagreement or concern about its proposed determination.
If it does not hear from the State in a timely manner, it will consider that the State has no interest in its detennination -- in this regard, the Comission intends to make available to the designated State officials a list of its Project Managers and other personnel whom it has designated to consult with these officials -- but, nevertheless, before it issues the amendment, it will telephone the appropriate State official for the purpose of consultation.
In an emergency situation, the Comission would do its best to consult with the State, before it makes a final determination about no significant hazards consideration, by simply telephoning the appropriate State official before it issues an amendment.
Finally, the Comission wishes to note two points in connection with the legislative history.
First, though the Comission intends to give careful i
1 f.
consideration to the comments provided to it by the affected State on the question of no significant hazards consideration, the State coments are advisory to the Comission; the Commission remains responsible for making L_
. the final administrative decision on the question. Second, State consultation l
does not alter present provisions of law that reserve to the Commission exclusive responsibility for setting and enforcing radiological health and safety requirements for nuclear power plants.
Paperwork Reduction Act Statement This rule contains a new reporting requirement which has been submitted to the Office of Management and Budget for its review under the Paperwork Reduction Act.
Regulatory Flexibility Certification In accordance with the Regulatory Flexibility Act of 1980, 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 companies that own these plants do not fall within the scope of the definition of "small entities" set forth in the Regulatory Flexibility Act or the Small Business Size Standards set out in regulations issued by the Small Business Administration at 13 CFR Part 121.
Since these companies are dominant in their service areas, this rule does not fall within the purview of the Act.
L
,' Regulatory Analysis The Commission has prepared a Regulatory Analysis on these amendments, assessing the costs and benefits and resource impacts.
It may be examined at the address indicated above.
l General notice of proposed rulemaking is not required for this interim final rule because the amendments by their nature concern rules of agency procedure and practice. Accordingly, pursuant to the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and sections 552 and 553 of Title 5 of the United States Code, notice is hereby given that the following amendments to 10 C.F.R. Parts 2 and 50 are published as a document subject to codification.
List of Subjects in 10 C.F.R. Parts 2 and 50.
Part 2 Administrative practice and procedure, Antitrust, Byproduct material, Classified information, Environmental protection, Nuclear materials, Nuclear power plants and reactors, Penalty, Sex discrimination, Source material, Special nuclear material, Waste treatment and disposal.
Part 50 Antitrust, Classified information, Fire prevention, Inter-governmental rel'ations, Nuclear power plants and reactors, Penalty, Radiation protection, Reactor siting criteria, Reporting requirements.
PART 2 -- RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS 1.
The' authority citation for Part 2 is revised to read as follows:
AUTHORITY: Secs. 161, 181, 68 Stat. 948, 953, as amended (42 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.
Section 2.101 also issued under 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, 83 Stat.
853, as amended (42 U.S.C. 4332); sec. 301, 88 Stat. 1248 (42 U.S.C.
5871).
Sections 2.102,-2.103, 2.104, 2.105, 2.721 also issued under secs. 102, 103, 104, 105, 183, 189, 68 Stat. 936, 937, 938, 954, 955 as amended (42U.S.C.2132,2133,2134,2135,2233,2239).
Section 2.105 also issued'under Pub. L.97-415, 96 Stat. 2073 (42 U.S.C. 2239)
Sections 2.200-2.206 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, Pub. L.91-190, 83 Stat. 853, as amended (42 U.S.C. 4332). Sections 2.700a, 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 2.790 also issued under 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 amended.
(42
_-_--__.__________-_____a
I U.S.C.2039). Appendix A also issued under sec. 6, Pub. L.91-580, 84 Stat.
1473 (42 U.S.C. 2135).
l 2.
In 9 2.105, paragraphs (a)(4) through (a)(8) are redesignated as paragraphs (a)(5) through (a)(9), and a new paragraph (a)(4) is added to
- read as follows:
j
$ 2.105 Notice of proposed action.
(a)
(4) An amendment to an operating license for a facility licensed under 6 50.21(b) or i 50.22 or for a testing facility, unless it determines that an' emergency or exigent situation exists and that there is no significant hazards consideration involved in that amendment; PART 50 -- DOMESTIC LICENSING OF i
PRODUCTION AND UTILIZATION FACILITIES l
3.
The authority citation for Part 50 is revised to read as follows:
l l
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 j
(42 U.S.C. 2133, 2134, 2201, 2232, 2233, 2236, 2239, 2282); secs. 201, 202, j
206, 88 Stat. 1242, 1244, 1246, as amended (42 U.S.C. 5841, 5842, 5846),
unless otherwise noted.
j i,
_ _ _ -.. _ - _ _ ~ _ - _ _ - - - - - _ _ _ - - _ - _ _ _ - _. _ _ _ - - _ - - - - _ _ _ _ _ _ _ _ _ _ - -
I.- -
',. - Section 50.7 also issued under Pub. L.05-601, sec.10, 92 Stat. 2951 (42 U.S.C. 5851). 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 U.S.C. 955 (42 U.S.C 2236).
For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2273),-
El 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)); %! 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 if 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(ol).
4 A new 650.91 is added to Part 50 to read as follows:
150.91 Notice for public comment; State consultation.
The Commission will use the following procedures on an application received after [ insert date 30 days after publication of the interim final rule in the FEDERAL REGISTER], requesting an amendment to an operating license,for a facility licensed under 6 50.21(b) or 5 50.22 or for a testing facility:
(a) Notice for Dublic comment._
(1) At the time a licensee requests an amendment, it must provide to the Commission its analysis, udna the standards in % 50.92, about the issue of no significant hazards consideration.
~
30 --
(2) The Comission may publish in the FEDERAL REGISTER under % 2.105
-either an individual notice of proposed action as to which it makes a proposed determination that no significant hazards consideration is involved, or, at least once every 30 days, a monthly notice of. proposed actions which identifir, each amendment issued and each amendment proposed to be issued since the last such monthly notice.
For each amendment proposed to be issued, either notice will (i) contain the staff's proposed determination, under the standards in Q 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 coment period. Nonna11v, the amendment will not be oranted until after this coment period expires.
(3) The Commission may inform the public about the final disposition of an amendment request where it has made a proposed determination on no significant hazards consideration either by issuing an individual notice of issuance under 6 2.106 or by publishing such a notice in its monthly system of FEDERAL REGISTER notices.
In either event, it will not make and publish a final determination on no significant hazards consideration, unless it receives a request for a hearing on that amendment request.
'inal determination that no significant (4) Where the Comission makat a
hazards consideration is involved and that the amendment should be issued, the amendment will be effective upon issuance, even if adverse public coments have been received and even if an interested person meeting the provisions l
for intervention called for in 6 2.714 has filed a request for a hearina.
The Comission need hold any required hearing only after it issues an I
+ -
.. I amendment, unless it determines that a significant hazards consideration is involved.
(5) Where the Commission finds thre an emergency situation exists, in that failbre to act in a timely way would result in derating or shutdown of a nuclea hower plant, 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 circumstance, the Commission j
will not publish a notice of proposed determination on no significant hazards consideration, but will publish a notice of issuance under 6 2.106, providing for opportunity for a hearing and for public comment after issuance.
6 The Commission expects its licensees to apply for license amendments in a timely fashion.
It will consider denying a license amendment where 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. Whanever a threatened closure or derating is involved, 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 reasons for failure 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 Commission must act quickly and that time does not permit the Commission to publish a FEDERAL REGISTER notice allowing 30 days for prior public comment, it will:
x
- 32:-
(1)-.Use local media to inform the public in the area surrounding a licensee's facility'of the licensee's amendment request and'of its proposed determination as describ'ed in paragraph.(a)(2) of this. section; (ii) Provide for. a reasonable opportunity for the public to comment, usingitsbesteffortstomakeava'dbletothepublicwhatevermeansof communication it can for the public to respond quickly; (iii) Use ~its normal public notice and comment orocedures in paragraph l-(a)(2) of this'section or consider denyino the' license amendment where it determines that the licensee has failed to 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; (iv) Require an explanation'from the licensee about the reason for the exigency and why the licensee cannot avoid it; L
(v)
Grant the amendment request only if it finds that the licensee's action pursuant to its request:
(A) is authorized by law and will not endanger life or property or the common defense and security and is otherwise in the public interest; l
and (B) involves no significant hazards considerations; and (vi) Publish a notice of issuance under 5 2.106, providing an opportunity for a hearing and for public comment after issuance.
(b) State consultation.
(1) At the time a licensee reauests an amendment, it must notify the State in which its facility is located of its request by providing to that
e - -- - - -- --
r c.
. i 1
State a copy of its application and its analysis about no significant hazards consideration 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.ne State of its proposed determination about no significant hazards consideration normally by sendino 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 Manager or other NRC personnel it designated to consult with the State. The Commission will consider 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, before it issues the amendment it will telephone that official for the purpose of consultation.
(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 l
telephone the appropriate State official.
Inability to consult with a responsible State official following good faith attempts will not prevent the Commission from making effective a license amendment involving no l
significant hazards consideration, if the Commission deems it necessary to l
avoid a shutdown or derating.
l
(5) After the Commission issues the requested amendment, it will send a copy of.its final. determination to the State.
(c) Caveats about State consultation.
The State consultation procedures 'in paragraph (b) of this section do noc cive the State a right:
(1) To veto the Commission's proposed determination; (2) To a hearing on the determination before the amendment becomes effective; or L
(3) To insist upon a postponement of the determination or upon issuance of the amendment; (4) Nor do these procedures alter present provisions of law that reserve to the Commission exclusive responsibility for settino and enforcing radiological health and safety requirements for nuclear power plants.
Dated at Washington, D.C. this day of
,1983.
For the Nuclear Regulatory Commission, Samuel J. Chilk Secretary for the Commission i
_-__-___________________.______.__________-m
f I
' \\
+
k4 t
r I
l ENCLOSURE 5
' )
l REGULATORY ANALYSIS 1.
Problem i
Te'mporary Operating Licensing Authority Public Law 97-415 allows the Commission to issue temporary operating licei.ses.
See Enclosures 1 and 2.
The proposed rule in Enclosure 2 is designed to conform NRC's regulations and procedures to this new authority.
Shereham-I-and-perry-I A few facilities might be affected by the rule. The Commission has been trying to alleviate in other ways the problem which the temporary operating licensing legislation is attempting to resolve.
i l
Standards for No Significant Hazards Consideration (NSHC)
As required by the legislation authorizing NRC's appropriations for fiscal years 1982 and 1983 (see Enclosure 2), NRC is adopting amendments to its L
regulations in Parts 2 and 50 to specify standards for determining whether
)
i.
amendments to operating licenses for certain facilities involve no signifi-cant hazards consideration.
See Enclosure 3.
The amendments would impact all operating nuclear power plants as well as l
testing faci'.ities. The Office of Nuclear Reactor Regulation (NRR) is already using these standards, but not all of the examples listed in the final rule with respect to these reactors.
t-
lm l
2 Criteria for Notice and Comment and Procedures for Consultation with States'nn NSHC As required by the legislation, NRC is amending its regulations in j.
Parts _2 and 50 to provide for prior notice and opportunity for hearing on applications requesting amendments to operating licenses and to specify criteria for providing or dispensing with prior notice and public comment on determinations about whether amendments to operating licenses involve no i
l significant hazards considerations.
It is also proposing procedures for i
consultation on these determinations with the State in which the facility l
involved is located.
See Enclosure 4.
The proposed rule would impact all operating nuclear power plants and testing facilities.
2.
Objectives Regulations are needed to implement the legislation previously described.
3.
Alternatives The legislation specifically calls for regulations on standards for NSHC, criteria for public notice and comment on NSHC, and procedures for State consultation on NSHC. The alternatives on public notice and coment I
procedures that have been considered are described in the Commission paper. Though the legislation does not call for implementing regulations on the temporary operating licensing authority, regulations are needed
L.. - to define in greater detail the Commission's procedures concerning this authority.
4.-
Consequences-a.
Benefits and Costs The benefits of the proposed rule on temporary operating licensing authority are described in Enclosure 2.
The costs involve resource impacts in issuing temporary operating licenses.
If the three construction permit holders ef-the-three-plants-4n-the ' pessible'l 2
categery-neted-abeve, for example, each petition for a temporary operatinglicense(at5% power)andanamendment(at50% power)and each action requires about 1 person-month, the total resource impact on NRR will be about 0.6 person years. The impact on the Commissioners cannot be calculated.
The benefits of the interim final rule on standards for NSHC are described in Enclosure 3.
There will be no resource impacts.
l The benefits of the interim final rule on prior public notice and l-coment and State consultation on NSHC are described in the l
1egislation.
(SeeEnclosure1). The costs involve resource impacts, including timing delays, on NRC, the industry, and on the States, aside from the cost to NRC of prior publication in the l
l-Federal Register (FR).
l i
.~
. The interim final rule on public notice and State consultation requires three new things involving additional.NRC resources:
(1) providing an opportunity for public comment and hearing,on any amendment for which the NRC has made a proposed determination that it involves no significant hazards consideration, (2) State consul-tation on such determinations, and (3) publishing monthly or individual notices of.any amendments issued or proposed to be issued which involve no significant hazards considerations.
The NRC receives about 600 amendment requests each year for nuclear power reactors and testing fa~cilities. Most (98%) are deemed to involve no significant hazards considerations.
Currently, the vast majority of these determinations are done informally.
Under the new rule, all preliminary determinations would require some evaluation to serve as the basis for the notice which advises the public of our proposed determination.
Experience (in earlier years) with the preparation and approval process for such determinations has shown that they can be both difficult to prepare and time consuming, requiring both management and legal review.
Final determinations would require substantial staff resources.
However, because these would be made and published only if there were a request for a hearing and it is expected that, after some experience with the rule, there would be few requests for
L i
-t5 -
a hearing a substantial-impact on staff resources-is not. anticipated.
- Moreover, perhaps after an initial flurry of comments, few comments -
are expected about the no significant hazards determination.-
For 76 operating power reactors and two. testing facilities (about 600 amendment requests per year), this would_ involve somewhat less than threeprofessional-staff-years-(PSYE).
Since the new rule. clearly offers hearing opportunities not appreciated today, it would not be unreasonable to expect more
, hearings,. at least in the beginning.
It is estimated.that each-operating reactor hearing might involve about~ 0.5 PSYE, but the number of additional hearings is unknown.
State consultation should have little resource impact, and is estimated at one person-hour per amendment or 0.3 PSYE.
The monthly and/or individual Federal Register notices will require close accounting and coordination. An additional 1.0 PSYE is estimated.
Federal Register printing costs could be reduced substantially, if the monthly notice were to combine numerous notices currently issued, separately.
. Summary of Impacts Significant hazards determination 3.0.PSYE State consultation 0.3 PSYE Monthly notices 1.0 PSYE (plus additional hearings @ 0.5 PSYE)
.As noted above, the total impact'on NRC will be about four to five person years.
The impact on the industry will involve possible delays encountered in NRC's issuance of license amendments. Additionally, it is estimated that an analysis under new the examples and new 5 50.92 would require about an average of four hours for a total of 2,400 hours0.00463 days <br />0.111 hours <br />6.613757e-4 weeks <br />1.522e-4 months <br /> on 600 license amendment requests.
The impact on the States can vary from nothing to a substantial amount of tine, depending on how much time they want to devote to analyzing the licensees' amendments.
b.
Impacts on Other Requirements None c.
Constraints Since the Conference Committee suggested that the Commission use its temporary operating licensing authority sparingly and since the authority will expire by the end of next year, there may be some policy constraints involved in the use of the rule.
-~.
4, -
. The public and notice and comment provisions and the State consultation provisions on NSHC will necessitate close cooperation between the regions and NRC headquarters. There will be no constraints in use of the standards on NSHC.
5.
Decision Rationale There is no question but that the Commission should proceed with the three rulemakings.
6.
Implementation a.
Schedule Temporary Operating Licensing Authority Publication of proposed rule shortly after legislation is enacted.
30 days public comment.
20 days to review public comments and to issue final rule if no significant public comments.
30 days before effective date of final rule.
A total of about 90 days.
Standards for NSHC Publication of interim final rule shortly after legislation is enacted.
30 days before rule is effective with 30 days for public comment -- the two periods to run simultaneously.
W.__
-8.-
g l
'20 days.to review public comments and.to decide whether and,
~if so, how to change the_ interim final rule.'.
Public Notice and' Comment and State Consultation on NSHC Publication of' interim final rule shortly. after-legislation is enacted.
30 days public comment, and 30 days;before rule is' effective,
'the two periods _ to run simultaneously.
20 days to review public coments and to decide whether, and, if so,: how'.to change the interim final rule.
'l.:
7.
Relationship to Other Existing or Proposed Requirements None.
_.__.-___.___m.__
___m____mm_.___--m___---._______
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ENCLOSURE 7
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l Dear Chairman-The Commission.is preparing to adopt amendments to its " Rules of Practice
'for Domestic Licensing Proceedings" in 10 C.F.R. Part 2 and to its regulations.
in 10 C.F.R..Part 50, " Domestic Licensing of Production and Utilization
-Facilities," to reflect Public Law 97-415, enacted on January 4, 1983, authorizing. the Commission to iss'.e temporary operating licenses.
The legislation also directs the Commission to promulgate, within 90 days of enactment, 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, for dispensing with prior notice and opportunity for public comment on such a detennination, and_ (c) procedures for consultation on such a determination.
with the State in which the facility involved is located.
To implement this. legislation, the Commission has prepared the enclosed-regulations for' publication in the Federal Register. The statements of
. consideration describe and explain the regulations in detail. A public announcement is also enclosed.
Sincerely,
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ENCLOSURE 8 m
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NRC TAKES STEPS TO IMPLEMENT NEW PUBLIC LAW The Nuclear Regulatory Comission is taking steps to implement provisions of recently enacted Public Law 97-415 that: (1) authorizes the Comission to issue temporary operating licenses, and (2) clarifies the agency's authority to issue operating license amendments involving no significant hazards considerations before the conduct of any public hearing.
The temporary operating license authority was requested by the Comission in March 1981 when it appeared that--because licensing reviews had been suspended largely in order to assess the lessons 1, earned from the Three Mile Island accident--some nuclear power plants might be ready for fuel loading and the start of operations before all of.the NRC's requirements for issuance of an operating license, including any public hearing, had been completed. The costs of such delays were estimated to be in the range of tens of millions of dollars per month for any delayed plant.
Under proposed amendments to Parts 2 and 50 of the NRC's regulations, an applicant for an operating license would be able to make a written request to the Comission for a temporary operating license authorizing fuel loading, testing and operation at a specified power level (initially not to exceed
(
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-five percent of the reactor's_ rated thermal power'1evel).
Higher specified power levels-can be' requested later.
The written request, and supporting affidavits, could not be filed until the NRC staff issued its Final Environmental Statement and its initial Safety Evaluation Report and the independent Advisory Committee on Reactor Safeguards supplied its views and the staff responded to those views in a supplemental Safety Evaluation Report.
In addition, a State, local or utility emergency plan would have to be on file.
. Provisions also would be made for giving prompt public notification of a request for a temporary operating license and amendments to such a license and for a 30-day comment period. The changes to the regulations, however, would not specify a time after the 30-day comment period by which the Commission must act on a request. They would only provide that the Commission would act as expeditiously as possible.
The issuance of a temporary operating license would not prejudge the outcome of any public hearing on the final operating license or the I
rights of any party to raise proper issues in the hearing and have those issues decided.
Further, parties to any final operating l' cense hearing, i
as well as the presiding Atomic Safety and Licensing Boi.rd, would be required to notify the Comission of any information made available as part of the hearing that suggests the conditions of the temporary operating license.were not being met or that they were insufficient to provide reasonable assurance that the public health and safety are being 1
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,3 protected during the period of temporary operation.
Further, the
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Commission would use its best efforts to minimize the need for temporary operating licenses before the authority to issue them expires on December 31, 1983.
Public Law 97-415 also requires the Commission to promulghte--
within 90 days of enactment of the law--regulations which establish:
(1) standards for determining when an amendment to an operating license involves no significant safety consideration; (2) criteria for providing
--or for dispensing with--prior notice and public comment on such a determination; and (3) procedures for consulting on such a determination with the. State in which the facility involved is located.
The enabling legislation was requested by the NRC after the U.S.
Court of Appeals for the District of Columbia Circuit found, in "Sholly versus NRC,".that it was improper for the agency not to provide an opportunity for a prior hearing on operating license amendments not involving significant hazards considerations. The ruling did not involve the agency's authority to issue immediately effective amendments, without prior notice or hearing, when required to protect public health and safety.
However, the Commission believed it could have resulted in unnecessary disruptions or delays in the operations of nuclear power plants and could have imposed unnecessary regulatory burdens--not related to significant 1
safety matters--on the NRC and the industry.
The standards for determining when an amendment involves no significant hazards consideration were published for public comment in March 1980 in response to an earlier petition for rulemaking. They now
- will be made effective in interim form with a request for public comments, except that they will not apply to amendments to construction permits where the determination about no significant hazards consideration is not applicable.
As amended, Part 50 of the NRC's regulations will define an operating _
license as involving no significant hazards considerations, if a finding is-made that operation of the facility with the amendment would not:
(1)
Involve a significant increase in the probability or consequences of an accident previously evaluated; (2) Create the possibility of a new or different kind of accident from any previously evaluated; or (3)
Involve a significant reduction in a margin of safety.
Additionally, the Office of Nuclear Reactor Regulation will use two sets of examples as guidelines under the standards to categorize whether
9*,
.s-amendment requests.are likely or not likely to involve significant hazards considerations.
If an amendment does involve a significant hazards consideration, prior notice and opportunity for a public hearing will be provided.
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To meet the requirement for establishing criteria for providing--or for dispensing with--prior notice and public comment on operating license amendments involving no significant hazards considerations, the Commission is amending Parts 2 and 50 of its regulations.
Under the interim regulations, the Commission would publish monthly or individually in the Federal Register prior notices of (1) proposed actions providing an opportunity for a hearing on applications requesting i
amendments to operating licenses, (2) proposed determinations on no significant hazards considerations with a request for comments within 30 days or some lesser period, and (3) final issuances. The Comission could make an amendment effective even though an interested person has requested j
a hearing -- a required hearing would normally be held after issuance of an amendment.
Provisions also would be made for issuing such amendments (1) without prior notice, if prompt action were required to avoid derating or shutting down a nuclear power plant or (2) with a shorter notice period and l
use of media other than the Federal Register if there are exigent circumstances.
l The Commissicn's authority to impose amendments without prior notice or public hearing in order to protect the health and safety also wnuld be preserved.
1 l
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In addition, interim final amendments to Part 50 would set forth l'
procedures for consulting with States on amendments involving no significant hazards considerations.
The interim procedures would require that: (1) a licensee notify the State of its request for an amendment and its evaluation of the issue of no significant hazards consideration; (2) the NRC send its proposed determination on whether the license amendment involves no significant hazards consideration to the State; (3) the NRC listen to and consider 1
comments, if any, from a designated State official; and (4) that the L
NRC make a good faith effort to consult with the State before issuing the license amendment.
The procedures would not: (1) give the State a right to veto a proposed NRC determination; (2) give the State a right to a hearing before the amendment becomes effective; (3) give the State the right to insist on a postponement of the NRC determination or issuance of the amendment; or (4) alter the provisions of existing law that give the NRC exclusive responsibility for setting and enforcing radiological health l
and safety requirements for nuclear power plants.
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The amendments to Parts 2 and 50 with respect to standards on no-h-
significant hazards considerations and public notice and State consultation will become effective on In addition, coments on these effective' interim amendments are invited. They should be submitted' by and should be addressed to the Secretary.of the Comission, Nuclear Regulatory Commission, Washington, D.C. 20555, Attention: Docketing and Service Branch.
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ENCLOSURE 9
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Summary of Public Coments
' Letters of comments were received on the notice 'of proposed rulemaking (45 FR 2049), March 28,1980) from the persons listed below.
SECY file "PR-2, 50 (45 FR 20491)" contains the letters.
(See also SECY-79-660 and 81-366. This enclosure is a slightly revised version of Enclosure B to SECY-81-366, dated June 9, 1981, prepared by the Office of Research.)
In these 10 letters 28 specific comments have been identified and these have been grouped into 12 consolidated comments.
Anderson, T. M.
Westinghouse Dale, L. F.
Mississippi P & L Gibbs D. C.
Atomic Industrial Forum Heffman, D. P.
Consumers Power Lindblad, W. J.
Portland General Electric Reynolds, N. S.
Attorney for Texas Utilities Generating Co.
Steptoe, P.
Attorney for Commonwealth Edison Wasserbach, A.
Weiss, E.
Attorney for NRDC & UCS The consolidated comments are found below with the staff response. The number in the parentheses is the number of specific comments contained in the consolidated comments.
Comments on Material to be Codified A.
Comment (2)
Comentors stated that 'significant" appears repeatedly throughout the rule but is nowhere defined specifically. Unless defined, "significant" will be "anyt.hing that may be either politic or expeditious at any given time." This lack of definition may therefore preclude consistency.
Response
The Comission does not believe that it is possible at this time to provide a more precise definition of "significant hazards consideration" that could not at a futur.e time impact adversely on the interests of one segment of the public, e.g., nuclear power proponents, or another, e.g., nuclear power opponents. The Comission deems it appropriate to codify the criteria as revised and to provide examples of amendments which will be used as guidelines in the evaluation of the scope of the specific license amendments.
B.
Coment (1)
A commentor proposed that the significant hazards consideration be based not only on the " operation" of the facility but also on its
" construction."
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Response
O This comment has not been accepted since the hazard is viewed as 4
resulting not from the construction but from the operation of the facility.
C.
Comment (2)
A commentor proposed that the criteria set fcrth in 5 50.91(b) be deleted and a new criterion subsituted. The commentor's criterion would be based on "whether operation of the facility in accordance with the I
proposed amendment would be within the acceptable criteria prescribed by the Commission's regulations which have been previously accepted or approved in connection with any Construction Permit or Operating License Proceeding."
Response
This comment has not been accepted. The commentor was trying to narrow the standard designed to measure whether an amendment creates "the possibility of an accident of a type different from any evaluated previously." The commentor's criterion is vague and open-ended.
It does not have the precision needed to make a careful decision.
D.
Comment (1)
A commentor believes that the first criterion, which relates to probability of an accident, is not appropriate since it implies a level of detailed review that is far beyond the reality of staff practice.
Response
This criterion is being retained, since the staff, does address the increase in probability relative to accidents previously considered.
E.
Comment (4)
A commentor proposed that the second criterion, which relates to accidents of a type different from any evaluated previously, be revised to include a threshold level of accident consequence, for example, the limits in 10 CFR Part 100, Reactor Site Criteria.
Response
A level has not been included. The commentor is trying to avoid including amendments that relate to accidents that are not included within the types previously evaluated, but which appear to have less severe consequences than the consequences associated with the accidents that were previously evaluated. The staff believes these should be included.
j.
.y F.,
Coment (1) y A comentor stated that the second criterion, which relates to accidents -
of_a type different from any evaluated previously, was not clear in that it did not refer to any grouping of accidents by " type."
Response.
The commentor is correct that no grouping of accidents was contained ~ in the proposed criteria. That criterion has been revised to clarify the accidents; but no detailed lists.of "new or different kinds" of accidents can be provided at.this time.
G..
Coment (1)
A commentor stated that the third criterion, which relates'to margin of safety, lacks both quantitative and qualitative paramenters and therefore would be difficult to apply in an objective fashion..
Response
That criterion has not been revised. The commentor is correct that specific.aargins are not stated. The staff believes that, even without specific margins, it is able to idendify whether the proposed amndmerit will have~a significant effect on the existing margins of safety.
H.
Coment (2)
Two comentors recommend editorial changes to clarify i 50.91(c).
Response
The intent of these changes has been incorporated.
.I.
Coment (1)
One commentor inquired about whether the criteria were consistent with section 189a. of the Atomic Energy Act.
Response
The staff believes that the criteria are consistent with the Act.
J.
Coment (1)
One commentor was in favor of the proposed rule as written.
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s-Coments on Other Aspects of the Rulemaking 1.
Coment (1)
Application'of the criteria will not limit public participation but should remove the Comission's interpretation of significant hazards consideration from the ad hoc, arbitrary and inscrutable.
(Seecomment2)
Response-The staff concurs that the amendment will not limit public participation.
2.
Comment (1)-
The use of criteria in the regulation versus the current use of informal guidance contained in an NRC procedure will prevent the flexible case-by-case review.
Response
The staff believes the licensing process can be improved and made more predictable by specifying criteria in the regulations.
3.
Coment (1)
The intention to incorporate into a regulatory guide the likely and not likely examples is suppcrted.
Response
The staff believes that the examples are not essential to the completeness of the regulation, since they form part of the evaluation procedure which the staff will use in applying the criteria contained in the regulation.
Therefore, they will become part of the formal procedures of the Office of Nuclear Reactor Regulation.
4.
Likelyexamples(3)
(a) Come_n_t The comentor stated that example (iv) is not clear in that every renewal of an operating license, e.g., possession only, involves a significant hazards consideration.
Example (iv) as published with the proposed rule stated that renewal of an operating license was considered likely to involve a significant hazards consideration.
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- Response Implicit in the granting of an operating license under Part 50 for a specific period is the presumption that the active components of the facility will be required to function for a number of cycles.
The staff deems it important to assure that component operating characteristics are adequate for the license renewal period to remove any significant hazards consideration during the extended period of operation.
(b) Comment The Commentor recommended that example (v) as published be revised to delete reference to the prior noticing.
Example (v) (as published) related the significant hazards consideration to the prior public notice of an increase in authorized maximum core power level.
Response
The staff has revised the example to be consistent with the other examples and to delete reference to noticing.
5.
Notlikelyexamples(3)
(a) Comment The commentor feels that no license amendment should be accepted based only on the fact that the results of the change proposed by the amendment will remain within current regulatory acceptance criteria. Example (vi) concerns amendments where the licensee proposes to reduce a safety margin but the change is within regulatory acceptance criteria.
Response
The staff believes that amendments can be evaluated to determine whether the effect of the amendment, relative to prior NRC approval actions, are within regulatory acceptance criteria. Proper use of this example should allow better allocation of NRC resources without either degrading public health or safety or significantly decreasing public participation in the license amendment process. The example has been clarified, however, to make it easier to use.
(b) Comment The commentor proposed the addition of a not likely example that would address administrative amendments that do not relate to safety matters.
l
' b. -
Response
f The staff concurs with the proposal and has included an example that relates to administrative amendments.
(c) Coment The commentor proposed the addition of a not likely example that would address amendments resulting from conditions prescribed by an Atomic Safety and Licensing Board (ASLB).
Response
The staff has riot included this example, since.it would have already.
been noticed at the ASLB hearirig stage.
6.
Comment (1)
The commentor believes that the final rule should not be issued as a final rule based on NRC staff review but the Commission should consider the final rule in the proposed form.
Response
The rule is being approved by the Commission.
7.
Comment (2)
A commentor believes the current and proposed approach to "prenoticing" is not appropriate. The better approach would be to require prior notice of each amendment unless the amendment involves no significant previously unreviewed safety issue. This better approach would be completely neutral as to the merits of the amendment.
Response
The Comisison's entire approach with respect to prior notice has been changed by the legislation. The new procedure is described in the interim final rule on public notice and State consultation (Enclosure 4 of this paper).
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