ML20247C113

Clarifies NRC Regulatory Process Re Restart of Plant.Region Will Issue Confirmatory Action Ltr,Confirming Licensee Proposals to Undertake Corrective Actions & Confirming Commitment Not to Resume Operation Until Approved by NRC

ML20247C113
Person / Time
Site:	Pilgrim
Issue date:	04/07/1989
From:	Scinto J NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Bear D COUNCIL ON ENVIRONMENTAL QUALITY
Shared Package
ML20247C116	List: ML20247C113 ML20247C124
References
CAL, NUDOCS 8905240346
Download: ML20247C113 (3)

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E NUCLEAR REGULATORY COMMISSION WASHINGTOPs, D. C. 20655 0

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Dinah Bear, Esq.

General Counsel Council on Environmental Quality 722 Jackson place, NW Washington, DC 20503

Dear Ms. Bear:

Before she left CEQ, Lucy Swartz wrote to me on March 14, 1989 concerning the restart of the Pilgrim facility. In her letter she indicated that information received from Congressman Studds' office suggests that the restart of the Pilgrim facility involved agency action by NRC that was not supported by NEPA documentation.

That information appears to reflect a misunderstanding of the NRC's regulatory process.

The NRC maintains a close and continuing surveillance of the operation of licensed power reactors, including onsite assignment of resident inspectors and frequent inspections by other NRC staff. As a part of this process, NRC encourages licensee management to get on top of developing problems at a facility before such matters require formal NRC enforcement action. Thus, in many cases where an operational problem arises, licensee management proposts cocrective action before the matter raises to a level involving NRC enforcement action. In some cases, the licensee may conclude that, although the facility technical specifications do not require plant shutdown, prudent management (lictates that the plant be shut down and substantial corrective action programs be initiated. NRC maintains surveillance over these r.orrective actinns to assure that they are in fact adequa'.e to rectify plant problems.

Often the operational problems giving rise to the licensee's corrective action plans are identified in consultation with NRC and the licensee's proposed corrective actions are discussed with the NRC. It is common in these cases for a licensee to " commit" to carry out specified corrective actions and, if the plant has been shut down, not resume operation without NRC " approval." The Region will issue a Confirmatory Action Letter, confirming the licensee s proposals to undertake corrective actions and confirming his commitment not to resume operation until " approved" by NRC.

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However, the formal status of these arrangements is that of voluntary action on the part of the licensee taken before it has become necessary for NRC to determine whether to take formal enforcement action. Confirmatory Action Letters are not NRC imposed requirements. NRC approval for startup is essentially. a matter of indicating that in light of the corrective actions that have been taken and, in the case of Pilgrim, with a carefully phased startup program NRC does not object to the resumption of facility operation.

Confirmatory Action Letters are reflected in 10 CFR Part 2. Appendix C,Section V. H.:

In addition to the formal enforcement mechanisms, of notices

of violation, civil penalties, and orders, NRC also uses administrative mechanisms, such as ... generic letters...and confirmatory action letters to supplement its enforcement program.

NRC expects licensees and vendors to adhere to any obligations and cocrnitments resulting from these processes and will not hesitate to issue appropriate orders ... to make sure such commitments are (3) Confirmatory Action Letters are letters confirming a licensee's

... agreement to take certain actions to remove significant concerns about health and safety...

C4 This was the nature of the Confirmatory Action Letter (CAL) issued in connection with the Pilgrim facility and the subsequent resumption of plant operation. Specifically, it should be noted that while the NRC's letter of December 30, 1988 to the Pilgrim licensee stated that "[t]his letter permits reactor criticality and low power eperation up to five (5) percent of full power...", it also explicitly stated "[t]his letter neither imposes any new requirements r;or releases Boston Edison Company from any existing require-ments contained in the Fecility License or Technical Specifications."

It should also be noted that, although the CAL was not a formal NRC -

enforcement at.+1on (compare the contents of the CAL with 10 CFR 2.202 and 2.204), it it hao Deen a femal NRC enforcement action,10 CFR 51.10(d) provides that Comission actions initiating or relating to administrative enforcement actions are not subject to section 102(2) of NEPA. The lifting of restrictions imposed by such Orders does not amount to a license amendment. Southern California Edison Co. (San Onofre Nuclear Generating Station, Unit 1),CLI-65-10,21NRC1569,1575(1985).

The March 14, 1989 letter also asked if Pilgrim was subject to en EIS when the NRC originally issued the construction permit and the operating license.

The Pilgrim construction pemit was issued before the passage of NEPA but the

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Dinah Bear Esq. ,

operating license was issued after NEPA. The NRC issued a Final Environmental Statement related to the operation of the Pilgrim plant on May 10, 1972.

I hope this helps to put this matter into perspective.

Sincerely, ,,

g Jo eph F. Scinto D puty General Counsel for Hearings & Enforcement cc: Lucinda low Swartz Associate Counsel Senate Environment and Public Works Subcommittee on Nuclear Regulation O

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