ML20244D121
| ML20244D121 | |
| Person / Time | |
|---|---|
| Issue date: | 12/05/1984 |
| From: | Lieberman J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Harold Denton Office of Nuclear Reactor Regulation |
| Shared Package | |
| ML20235T530 | List:
|
| References | |
| FOIA-87-51 2.206, NUDOCS 8412170427 | |
| Download: ML20244D121 (1) | |
Text
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cf omy sana or:y J is cF AelC/n s
o n, December 5, 1984 FEMORANDUM FOR:
Harold R. Denton, Director Office of Nuclear Reactor Regulation l
FROM:
James Liebennan, Director and Chief Counsel Regional Operations and Enforcement Division Office of the Executive Legal Director
SUBJECT:
C0hSIDERATION OF COMMENTS MADE REGARDING THE COMMISSION'S RULE CONCERNING ENVIRONMENTAL QUALIFICATION OF ELECTRIC EQUIPMENT PURSUANT TO 10 CFR 2.206 )
Py memorandum to you of November 29, 1984 regarding the above subject may have included an incomplete attachment, specifically the referenced copy of the final rule and its Supplementary Information, complete copy is attached.
James Lieb rman Director and Chief Counsel Regional Operations and Enforcement Division, OELD
Enclosure:
As stated.
cc: (w/ encl.)
R. DeYoung, IE J. Axelrad, IE W. Olmstead, OELD W. Shields, OELD J. Murley, Reg. I J. Keppler, Reg. III J. Martin, Reg. Y J. Gutierrez, Reg. I B. Berson, Reg. III L. Shollenberger, Reg. V 0!STRIBUTION NRC Central ,
ELD Rdr l Lieberman chron l Reading Hoef1ing chron ~~ w --LESICNATED ORIGINAL 9
Cuoco info ^N 2.206 chron gbl}'~l(lO C Certihed By M.f Subject P-84-22 o g4 f
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DATE :12/4/84 !
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[7590-01)
NUCLEAR REGULATCRY COM!'J5510, 10 CFR PART 50 Environmental Qualification of Electric Equipment:
Removal of June 30,19F.J. Deadlir.e AGENCY: Nuclear Regulatory Oc T.T.issicn.
ACTION: Final Rule.
SUMMARY
- In response to a ruling by the U.S. Court of Appeals for the District cf Cciumbia Circuit ("D.C. Circuit"), the Commission published on March 7,1984, a proposed rule deleting from power plant operating licenses a June 30, 1952, deadline for environmental qualification of .
electric equipment imposed by previous Commission order. After con-sidering public comments received, the Commission is adopting the preposed rule as a final rule with a minor modification.I Licensees of operating power plants will therefore be expected to meet the schedule for environmental qualification set , cut in 10 CFR 50.49(g). j EFFECTIVE DATE: Nove:6er 19,1984. I The Cor.ission voted on September 4,1984 to adopt the rule and an accompanying Statement of Consideration subject to the addition of separate views. Immediately thereafter, the Union of Concerned 1 J
Scientists ("UCS") petitioned the Comission to recensider its adoption of this rule. Under these circumstances, the Commis,tien deter r.ined to review its action and to defer publication of the Statement of Consideration. While the Comission's review was pending, the D.C.
Circuit directed the Commission to prcvide the Court a copy of the Final Rule and Statement of Consideration.
. 1 The Commission's review did not reveal any reasons for modifying i the rule as adopted. Accordingly, UCS's petition is denied for the ,
reasons stated in this modified Statement of Consideration which l supplants the Statement of September 4,1984 The Commission has :
forwarded a copy of this modified statement,to the D.C. Circuit. !
--u 7 n /> l
.-a t 3 m u - - n ,A
, pp ;
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3 [H90-01 the notice of proposed rulemaking a special protec.re whereby plant-specific comments would be referred tc the staff f:- review an: consid-eration of possible enforcement action. The Commission noted that it would consicer any generic implication.s resulting ' rom review of plant-specific comients in deciding whether to delete the deadline for all plants. On August 7,1984, in response to requests by some corraenters, the Commission extended the comment period to Augus; 13, 1984. (49 FR 31a3-2).
II. Public Com.ents Twenty-two comments were received on the prop: sed rule. Nine f avored adoption of the rule, twelve opposed the r;,le, and one comment discussed seismic issues not germane to the rulemaking. Of the nine comments favoring the rule, six were submitted by utility owners of power reactors, one by a le.w firm representing two such utilities, one by an individual, and one by the Nuclear Utility Group on Environmental Qualification, representing numerous power plant licensees. Of the twelve comments opposing the rule, five were filed by individuals, four by intervenor groups, one by the Harvard Law Schoci Environmental Law Society, one by the Union of Concerned Scientists, and one by the State l
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)
[FootnoteContinued]
cases, the Comission itself may consider and grant extensions beyond November 30, 1985 for completion cf environmental qualification. .. i
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- 1. The Atcmic Energy Act recuires the Commissien :c consider all l connents bearing on whether issuance of the pr:;osec license
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amencments would be inimical to the public hec ~.-h and safety. f Commissien Resoonse:
The gravamen of this contention is that the Cenmission should not have stated, in the nc-tice of proposed rulemaking, that the plan:-specific comments would be trea:ec via 10 CFE 2.206, because this tantamoun: to excluding evidence relevant to the ruiemaking.
The Commission was quite clear in the notice cf proposed rulemaking that commen;s which had a bearing only en a single facility were to be treated uncer 10 CFR 2.206 because the proposec rule was intended to lift an industry-wide deadline " set for purposes nc directly related to safety." 49 FR 8445. However, the Cc: mission alsc stated "that a number of comments, each raising issues about particular piants, would in the aggregate have a bearing on the Commission's proposal to elimi-nate the June 30, 1982, deadline." Id. The procedure outlined for l
staff review of plant-specific ccaments concluded as follows: "In i 1
i deciding whether to make final the proposed elimination of the June 30, 1982 deadline, the Commission will consider the generic implications of the, Director's preliminary judcments." Id. Thus, the Commission intended that all comments, both general and plant-specific, would be.
considered relen.nt to the final decision.
7 [759C-00 material consicerec by the NRC. Several ccmmenters requested anc received specific records for incividual f acilities. The Commission believes that any interested person could have revisaed any documentation available for one or more plants witrin the comment period provided. Staff assistance was available whenever requested to locate specific data or to sort out complex files.
As for the substantial number of technical cc: ments provided by licensees directly to the Franklin Research Center 'FRC) for its review, but not provided to the NRC staff, the Commission teiieves that there was no legal requirement to make that documentation available for enr=ent in this rulemking. The technical documen;s relied en by the FRC were not necessary to the Commission's determirttion cf the issue in this rulemaking, were not consulted by the Commissicn, and were there-fore not part of the rulemaking record. The issue in this rulemaking was whether the June 30, 1982 deadline should be re:ained because either licensees were not diligently pursuing environmentei qualification or because there were generic safety problems. The Te:hnical Evaluation ReportsT7ER") by the FRC, which are a part of the record, provided adequate documentation for resolving these issues. These TERs were based on the FRC's review of the technical documentation supplied to it by licensees. The identification of this technical documentation by FRC, together with the FRC's conclusions about the status of environ .
mental qualification at the facilities being reviewed, was sufficient in itself to support the Commission's conclusion that licensees were diligently pursuing ' environmental qualification.
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UCS misreads the court's decision in UCS v. 9.: 711 f.2d 370 (D.C.
Cir.1983) tc support its contention that plant s;ecific safety findines are required to support deletion of the deadline. The court did not say that any such finding was actually necessary befcre the deadline could be deleted. Rather, the court found that because in its view the Commission had apparently made a generic safety finding to support the Interim Rule, the Corxaission had to provide an op;;rtunity to comment on that alleged safety finding.
The Cor.ission has now explained that it does not rely on plant-specific safety findings in the present rule. I?othing in UCS v. NRC requires such findings. Plant-specific safety fir.:ings. are nct required for these proposed license amendments because these amendments do not have the effect of authorizing any plant operaticr. not previously authorized, after full consideration for safety, when the facility licenses were issued. As explained above, the deadline was not set as a safety matter or as a cutoff date beyond which reactors could no longer operate if all of their equipment was not qualified. Rather, the purpose of the deadline was to urge licensee compliance with the environmental qualification program. Accordingly, those proposed license amendments do not involve the technical issues associated with the. qualification status of various pieces of equipment at nuclear power plants. The bstifications for continued operation are relevant to the deadline only to the extent that they reveal whether licensecs have considered the effects of deficiencies in a timely manner. The Comission's review'of the record shows that licensees have been
11 [759C,-0C III. Respense Tc FUSE Com. ment And UCS Fetition One comenter, Floridians United For Safe Ener;y (FUSE), was highly critical cf the Comission's prior actions on envir:nmental cualifica.
tion and requested that the Commission take 14 listed actions to correct the alleged deficiencies. These 14 actions are icentical to those requested by the Union of Conce ned Scientists (UC5' in a petition filed with the Co=ission of February 7,1984 The Cemission has decided that the first five cf the 14 recuested actions are relevant to this rulemaking, and accordingly, those issues will be stated and responded to below. The remaining nine issues have been dea'.: with separately es described in a letter to UC$.
Recuest 1:
Direct the Staff 'to obtain immediately (within 10 days) from each nuclear power plant licensee and license applicant a report documenting the use of each deficient component listed in the UCS petition, and a detailed justification for continued operation pendine qualification of the equipment. (The equipmen listed was: solenoid valves, Barksdale pressure switches, Static-0-Ring pressure switches, ITT-Barton transmitters, Limitorque valve operators, Anaconda flexible conduit, Rockwell hydrogen recombiners, and O'Brien Electric Penetration Assembly, Model K Connectors.)
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I where it appeared that licensee efforts had nct been acequate, the staff 1
l has concutted an audit of licensee files anc has made clear what steps i
need to be taken to demonstrate compliance with the Commission's ,
l i environmental qualification requirements.
The Commission believes that this approacn, which places the burcen on licensees to complete environmental qualification on a reasonable schedule, is preferable to the ad hoc program propcsed by UCS thet could lead to celay in completion of the procrat at individual plants. In this area as in all other areas of NRC jurisdiction, the Commission relies on its licensees to carry out the regulatory requirements in a responsible manner, subject to NRC review-anc audit, and backed up by inspection and enforcement.
Recuest 2:
Direct the staff'to review this information within two weeks and make an independent determination as to whether there is justification for continued operation pending qualification of the equipment.
J Commission Response: )
1
- Even if the Commission were to receive all of the data covered by i
- l Request il, the simple result implied by Request 2, i.e., to determine l whether continued operation is or is not justifiable, would not obtain.
As to each individual piece of equipment, at least the following steps must be carried out:
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15 [7590-01:
-he item's use, location, configuration, anc' impcrtarce tc plant op-erations. Arguments may arise over the interpretati:n of test data. l In short, UCS has greatly oversimplified the p-ocess of environmental qualification of safety-related electric equipment in i
nuclear power plants as a straightforward one, where answers immediately l turn out yes or no. If the matter were that simple, the Commission and its licensees would not have been struggling for sc e five years to complete the program. In many cases environmental : qualification efforts are at the edge of modern technology and material science. Tests must be carried out under conditions which are difficult to create in the laboratory, and arguments arise over whether simulatec conditions accurately represent the environment of a nuclear accident. Finally, i
reasonable disagreements can arise over the need fer a piece of equip-ment, the environment it will see in an accident, the probability of that accident occurring over a brief period of time, and the conse-quences of equipment failure.
ibe Commission believes the phased but expeditious program mandated by 10 CFR 50.49 should continue. Where the staff feels that licensee efforts fall short of an acceptable level, action will be taken. Where
- information indicates that a serious, imnediate safety hazard exists at l
a pqrticular facility, prompt corrective action wili be required includ-l ing plant shutdown where necessary.
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Recuest 5:
The Commission may mocify or affirm the StafC s action, taking into consideration public comments it has receivec.
Cer.ission Resoonse:
If licensing action is sought on an individua'. facility pursuant to 10 CFR 2.206, the Commissien has discretion under ':s rules to review the decision of the office director. See 10 CFR 2.206(c)(1).
IV. Plant Specific Commen:s Four comments were filed which allege ecuipment qualification deficiencies at a specific plants:
TMI, Kewaunee, San Onof re 1, Hacdam Neck - UCS 3
Maine Yankee' - Attorney General, State of Maine Pilgrim, Seabrook - John F. Dougherty Point Beach - Wisconsin's Environmental tecade 3
The State of Maine's comment also contains legal arguments which are responded to above in connection with the UCS comment and petition, and'which the Commission has previously addressed in the notice of proposed rulemaking and accompanying policy statement issued March 7.. ,
1984 Mr. Dougherty's comment regarding Seabrook did not deal with specific qualification deficiencies, but referred cnly to the licensee's financial difficulties. For this reason, Seabrook will not be discussed further below and will not be the subject of 2.206 treatment.
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several items of equipment other than -he EFW syster to er.sure that the licensee's program complies with the Cc= mission's requirements as set forth in 10 CFR 50.49.
1 Kewaunee- .
The staff has completed its Safety Evaluation Report for Kewaunee, and has concluded as follows:
- 1. Wisconsin Public Service's electrical equipment environmental qualification program complies with the requirements of 10 CFR 50.49.
- 2. 'The proposed resolutions fcr each of the environmental defi-ciencies identified in the February 2,1953 SER and FRC TER are acceptable. There are no longer any outstanding justi-fications for continued operation for this facility.
San Onofre 1 1
i This plant is currently not operating. The staff met with the licensee on December 20, 1953 to discuss resolution of the TER defi-ciencies. In order to ensure compliance with the Commission's require-
. ments, this facility's EQ files were audited by the staff on October 2-4, 1984. Prior to . return to service, the licensee is required to submit justifications for continued operation for all equipment which is within the scope of 10 CFR 50.49 and not fully qualified.
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- i Haddam Neck
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The staff has completed its Safe y Evaluatict F.eports for bcth ci thesc units. As to each unit the s aff has conciuced:
- 1. Wisconsin Electric's electrical ecuipmer.: environmental ;
i qualification program complies with the -requirements of 10 CFR !
50.49.
- 2. The proposed resolution of each of ifne environmental quali- j
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fication deficiencies identified in tne December 22, 1982 SER j and FRC TER are acceptable. !
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- 3. Continued operation until completion cf -he licensee's environmental qualification program will not present undue risk to the public health' and safety.
The licensee's qualification files will be audited at a later date to confirm that all of the Cocr.ission's requirements have been met.
V. Decision on Final Rule The Commission has reviewed the comments and does not find in them convincing arguments in favor of retaining the license condition dead-lines. The Commission agrees with commenters who expressed impatience at tne length of time which has already been devoted to the effort of 1
- achieving full qualification of safety-related equipment in nuclear
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power plants. The program has taken much longer than expected, and has 1
involved difficulties' and complexity not foreseen at the time the 1982 date was inserted in operating licenses.
However, the Commission believes that the approach most likely to l
accomplish conipletion of the program in the most expeditious and I i
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The Ccamission is therefore adoptinc as a fina' rule tne remeval of the June 30, 1982, deadline from pcwer plant opera:- ; licenses. In response to one of the public comments, which notec :nat scme licensees may have license condition deadlines other than Jur.e 30, 1982, the proposed rule is being modified slightly by the adci: ion of the words underlined:
" ... that the schedule in this paragrap- supersedes the June 30, 1982, deadline, or any other oreviously im:: sed date, for environmental qualification of electric equipment c:-tained in certain nuclear pcwer operating licenses." Because the rule relieves a restric-tion, it is effective upon publication in the Feders' Register pursuant to 5 U.S.C. 553(d)(1).
Reculatory Flexibility Act Certification In accordance with the Regulatory Flexibility A:t of 1980, 5 U.S.C.
605(b), the Ccamission' hereby certifies that this rde will not have a significant impact on a substantial number of small entities. The rule I affects only licensees of nuclear power plants. These companies do not ,
fall within the scope of "small entities" as set fc-th in the Reculatory Flexibility Act or tne small business size standarcs. set forth in the
- regulations of the Small Business Administration,1C CFR part 121.
[FootnoteContinued]
a general matter, licensees are diligently pursuine effective environmental qualification programs. The fact that one facility, Three Mile Island, Unit I required additional prodding, prodding which the NRC steff reported as being successful, does not undercut the validity of this generic finding.
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- 1. Tne authority citation for Part 50 continuas to read as fol-lows:
Authority: Secs. 103, 104, 161, 182, 186, 189, 66 Stat.
l 936, 937, 948, 953, 954, 955, 956, as amer.ced sec. 234, 83 Stat. 1244, as amenced (42 U.S.C. 2133, 2134, 2201, 2223, !
1 2233, 2236, 2239, 2282); secs. 201, 202, 205, 88 Stat. 1242, l 1244, 1246, as amended (42 U.S.C. 5841, 5242, 5846), unless otherwise noted.
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(Sec. 50.7 also issued under Fub. L 95-60~.), sec. 10.92 Stat.
2951 (42 U.S.C. 5851). Section 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 uncer sec.122, 66 Stat. 939 (42 U.S.C. 2152). Secs. 50.80-50.81 also issued under sec.184.66 Stat. 954, as amended (42 U.S.C. 2234). Secs. 50.100-50.102 ,
also issued under sec.186, 66 Stat. 955 (42 U.S.C. 2236).
For the purposes of sec. 223, 66 Stat. 955 as amended (42 U.S.C. 2273), !! 50.10(a), (b) ano (c), 5:.44, 50.46, 50.48, 50.54 and 50.58(a) are issued under sec.161b, 68 Stat. 948, as amended (42 U.S.C. 220a(b)); il 50.10(b) and (c) and 50.54 are issued under sec. 161.68 Stat. 949, as amended (42 U.S.C.
2201(i));and6550.55(e),50.59(b),50.70,50.71,50.72,and 50.78 are issued under sec.1610, 58 Stat. 950, as amended (42 U.S.C.2202(o)).-
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l The schedule in tr.is paragraph superseces tne Jur.e 'O,1982, deadline, 1
or ar.y other previously imposed date, for envircrrer.tal qualification of l
electric equipment contained in cer ain nuclear pcwer cperating li- 1 i
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i censes.
Commissioner Asselstine's separate views follow.
1 I
i For the Nuclear Regulatcry Comission i
/ 1 j / /,{
=t&d_7#> &
/ JOHN C. HOYLI ASSISTANT SIOJ.TARY OF THE COMMISSION Dated at Washington, D.C.
l this O' day of / cWk ,1984 l l
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7-l thercty correcting a wicespread licensee recalci rar.:e in creperly cualifying safety-related ecuipment. The Commissier tiso set the ceetline to ersure tht*. Safety rela *ec equipment was cua".ifie: .vithin a reasonable j oeriod of time - two years. '
In decioing to remove the Jur.e 30, 1982 cercline frer perating licenses,
-he Commissicn has concluded: (1) that the purp;se :# motivating licensees to pursue effective equipment cualifcation programs with due diligence has oeen achieved; (2) that extended operation of .the plarts beyond the June 30, 1982 ceadiine withcut fully qualified electrical e;uipment will not pose an undue risk to the public health and safety, a*d (3) that there is no generic ecuiprert qualification problet commen tc rany plants, such that '
a generic solution such as the June 30, 1982 deadline should be retained.
More than twc years after the expiration of the June 30, 1982 deadline, it appears that the Commission dces not have an adepuate factual basis for any cf these conclusions.
I originally agreed with the course the Ccemission takes in its rulemaking j and with the issuance of a new equipment qualificatier rule and policy. ]
statement. Mcwever, my agreement was based on assurarces from the NRC j staff that licensees were diligently pursuing adecuate qualification programs and that the NRC was conducting an in-depth review of the i information provided by licensees to support their justifications for !
continued operation (JCO's) or findings of qualification. Upon detailed examination it cppears that these assurances were op;imistic at best.
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safety. Althouch the staff assert; us that there has been improvement ir.
recent rcetr.s , te date a consid'rible trc'.+t cf safe *.y-related ecuume-t still has nc- bee shown to be recperly cualified. See, Transcript cf September 4,1984 Cc=nission meetine, ;:. 71-72. Justifications for continued operatict (JCO's) fer virtually all plants were submittec by the licensees in 1981. Reviews of these JCO's by the NRC staff and its contractors have repeatedly identifiec errors requiring further 1 justifications. Further, even in the case of the more recent JCO's, the staff's inquiry has largely cccepted the assertions made by the licensee that its equipmen; is qualified, and exce;t in a very limited number of cases, the staff has not performed the detailed examination of supportinc dccumentaticn nee:ed to verify independently that either the equipmen; is properly qualified or that there is an adequate justification for continued operation. See, Transcript of September 4,1984 Comission meeting, pp 69-72. Nor is there any reason to believe that en in-depth examination of the licensee's de:ueentation will occur any time in the near future. In the very few cases where staff has begun such in-depth reviews the evidence indicates that licensee efforts have been inadequate. Thus, because there has been no in.de;;h review by the NRC, there is no reason to conclude,.as the majority does, that there is indeed nc generic prcblem with equipment.
Rather, UC5's ccitints suggest that there may be generic problems with certain equipment, and the Comission has not adequately explained why the equipment identified indicates no generic problem.
Thus, the evidence indicates that all licensees are not diligently pursuing effective equipment qualification programs. The evidence also indicates
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ciligently pursu"; ervircnmental cualifice!'er ar.c that there are nc gene ic sa'e > : : tie ! so that the Ju-e 2C, ICE 2 cett. ire cu;": te be retainec. The C: .-ission's explanation misses tre pcir.t. The Commission may have relied '.: the FPC reviews in making its centiusicr.s, but FRC in concutting the rE.iews upor. which the Connission reliec must have relied in
- turn upon the cc:. er:ction the Commission now says is not relevant to the rulemaking. hac :he Concission itself conducted reviewc cf this documentation irs'eac of contracting out to FP,C the underlying documentation fc- :ne Commission's decisier surely would have to be available fcr cc- sr.t. The rere identification cf informatict without provicing er. c;;: :urity to inspect that ir'c naticn and challenge the bases for FEC's a d sttff's conclusions hardly amounts to a fair 0;portunity to c:7 ent.
For all of these -easons I cannot concur in the Commission's action. I woulc retain the .'une 30, 1982 deadline to be used as an enforcerer.t tool to ensure that licensees have effective environmental qualification prog rams. Further, the Ccamission ought to be more diligent ie cer. ducting in-depth reviews cf licensee documentation 50 that plants do not contince te operate for ex: ended periods cf time with the state of their ecuiprer.t basically indete -inate.
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