Further Commission Guidance for Power Reactor Operating Licenses NUREG-0660 and NUREG-0694 (Generic
NUCLEAR REGULATORY COMMISSION
WASHINGTON, D. C. 20555
June 26, 1908
TO ALL APPLICANTS FOR CONSTRUCTION PERMITS AND OPERATING LICENSES
SUBJECT: FURTHER COMMISSION GUIDANCE FOR POWER REACTOR OPERATING LICENSES
On June 16, 1980, the Nuclear Regulatory Commission issued its policy
statement regarding the requirements to be met for current operating license
applications. The requirements are derived from the NRC's Action Plan
(NUREG-0660) and are found in NUREG-0694, "TMI-Related Requirements for New
Operating Licenses". They are deemed to be necessary and sufficient for
responding to the TMI-2 accident, and current operating license applications
should be measured against the NRC regulations a augmented by these
requirements. A copy of this policy statement is enclosed.
Copies of NUREG-0694 are being produced and will be provided to you under
separate cover in the near future.
Darrell G. Eisenhut, Director
Division of Licensing
U.S. NUCLEAR REGULATORY COMMISSION
FURTHER COMMISSION GUIDANCE
FOR POWER REACTOR OPERATING LICENSES
STATEMENT OF POLICY*
After the March 1979 accident at Three Mile Island, Unit 2, the Commission
directed its technical review resources to assuring the safety of operating
power reactors rather than to the issuance of new licenses. Furthermore, the
Commission decided that power reactor licensing should not continue until
the assessment of the TMI accident had been substantially completed and
comprehensive improvements in both the operation and regulation of nuclear
power plants had been set in motion.
At a meeting on May 30, 1979, the Nuclear Regulatory Commission decided to
issue policy guidance addressing general principles for reaching licensing
decisions and to provide specific guidance for near-term operating license
cases 1/ In November 1979, the Nuclear Regulatory Commission issued the
policy guidance in the form of an amendment to 10 CFR Part 2 of its
regulations, 2/ describing the approach to be taken by the Commission
regarding licensing of power reactors. In particular, the Commission noted
that it would "be providing case-by-case guidance on changes in regulatory
policies." The Commission has now acted on three operating licenses, has
given extensive consideration to issues arising as a result of th Three Mile
Island accident, and is able to provide general guidance.
*All footnotes for this statement of policy appear at end of text.
Following the accident at Three Mile Island 2, the President established a
Commission to make recommendations regarding changes necessary to improve
nuclear safety. In May 1979, the Nuclear Regulatory commission established a
Lessons Learned Task force, 3/ to determine what actions were required for
new operating licenses and chartered a Special Inquiry Group to examine all
facets of the accident and its causes. These groups have published their
The Lessons Learned Task Force led to NUREG-0578, "TMI-2 Lessons Learned
Task Force Status Report and Short-Term Recommendations" and NUREG-0585,
"TMI-2 Lessons Learned Task Force Final Report." The Commission addressed
these reports in meetings on September 6, September 14, October 14, and
October 16, 1979. Following release of the report of the Presidential
Commission, the Commission provided a preliminary set of responses to the
recommendations in that report. 5/ This response provided broad policy
directions for development of an NRC Action Plan, work on which was begun in
November 1979. During the development of the Action Plan, the Special
Inquiry Group Report was received, which had the benefit of review by panels
of outside consultants representing a cross section of technical and public
views. This report provided additional recommendations.
The Action Plan 6/ was developed to provide a comprehensive and integrated
plan for the actions judged appropriate by the Nuclear
Regulatory Commission to correct or improve the regulation and operation of
nuclear facilities based on the experience from the accident at TMI-2 and
the official studies and investigations of the accident. In developing the
Action Plan, the various recommendations and possible actions of all the
principal investigations were assessed and either rejected, adopted or
modified. A detailed summary of the development and review process for the
Action Plan is provided in NUREG-0694, "TMI-Related Requirements For New
Actions to improve the safety of nuclear power plants now operating were
judged to be necessary immediately after the accident and could not be
delayed until the Action Plan was developed, although they were subsequently
included in the Action Plan. Such actions came from the Bulletins and Orders
issued immediately after the accident, the first report of the LEssons-
Learned Task Force issued in July 1979, the recommendations of the Emergency
Preparedness Task Force, and the NRC staff and Commission. Before these
immediate actions were applied to operating plants, they were approved by
the Commission. Many of the required immediate actions have already been
taken by licensees and most are scheduled to be complete by the end of 1980.
On February 7, 1980, based on its review of initial drafts of the Action
Plan, the Commission approved a listing of near-term operating license
(NTOL) requirements, as being necessary but no necessarily sufficient
TMI-related requirements, for granting new
operating licenses. Since then, the fuel load requirements on the NROL list
have been used by the Commission in granting operating licenses, with
limited authorizations for fuel loading and low power testing, for Sequoyah,
Salem, and North Anna.
On May 15, 1980, after review of the last version of the Action Plan, the
Commission approved a list of "Requirements For New Operating Licenses", now
contained in NUREG-0694 7/ which the staff recommended for impostion on
current operating license applicants. That list was recast from the previous
NROL list and sets forth four types of TMI-related requirements and actions
for new operating licenses: (1) those required to be completed by a license
applicant prior to receiving a fuel-loading and low-power testing license,
(2) those required to be completed by a license applicant to operate at
appreciable power levels up to full power, (3) those the NRC will take prior
to issuing a fuel-loading and low-power testing or full-power operating
license, and (4) those required to be completed by a licensee prior to a
specified date. The Commission also approved the staff's recommendation that
the remaining items from the TMI reviews should be implemented or considered
over time to further enhance safety.
In approving the schedules for developing and implementing changes in
requirements, the Commission's primary considerations were the safety
significance of the issues and the immediacy of the need
for corrective actions. As discussed above, many actions were taken to
improve safety immediately or soon after the accident. These actions were
generally considered to be interim improvements. In scheduling the remaining
improvements. In scheduling the remaining improvements, the availability of
both NRC and industry resources was considered, as well a the safety
significance of the actions. Thus, the Action Plan approved by the
Commission presents a sequence of actions that will result in a gradually
increasing improvement in safety as individual actions are replaced or
supplemented by longer term improvements.
II. COMMISSION DECISION
Based up its extensive review and consideration of the issues arising as a
result of the Three Mile Island accident, the Commission has concluded that
the above-mentioned list of TMI-related requirements for new operating
licenses found in NUREG-0694 is necessary and sufficient for responding to
the TMI-2 accident. The Commission has decided that current operating
license applications should be measured against the regulations, as
augmented by these requirements. 8/ In general, the remaining items of the
Action Plan should be addressed through the normal process for development
and adoption of new requirements rather than through immediate imposition on
III. LITIGATION OF TMI-2 ISSUES IN
OPERATING LICENSE PROCEEDINGS
In the November 1979 policy statement, the Commission provided the following
guidance for the conduct of adjudicatory proceedings:
In reaching their decisions, the Boards should interpret existing
regulations and regulatory policies with due consideration to the
implications for those regulations and policies of the Three Mile
Island Accident. In this regard, it should be understood that as a
result of analyses still underway, the Commission may change its
present regulations and regulatory policies in important aspects and
thus compliance with existing regulations may turn out to no longer
warrant approval of a license application.
The Commission is now able to give the Boards more guidance.
The Commission believes the TMI-related operating license requirements list
as derived from the process described above must be the principal basis for
consideration of TMI-related issues in the adjudicatory process. There are
several reasons for this. First, this represents a major effort by the staff
and Commissioners to address an almost overwhelming number of issues in a
coherent and coordinated fashion. It is extremely doubtful this process can
be reproduced in individual proceedings. Second, the NRC does not have the
resources to litigate the entire Action Plan in each proceeding, nor does it
believe it would be a responsible decision to do so. Third, any of the
decisions involve policy rather than factual or legal decisions. Most of
these are more appropriately
addressed by the Commission itself on a generic basis than by an individual
licensing board in a particular case. consequently, the Commission has
chosen to adopt the following policy regarding litigation of TMI-related
issues in operating license proceedings.
The TMI-related "Requirements For New Operating Licenses" adopted herein
can, in terms of their relationship to existing Commission regulations, be
put in two categories: (1) those that interpret, refine or quantify the
general language of existing regulations, and (2) those that supplement the
existing regulations by imposing requirements in addition to specific ones
already contained therein. Insofar as the first category -- refinement of
existing regulations -- is concerned, the parties may challenge the new
requirements as unnecessary on the one hand or insufficient on the other.
The Atomic Safety and Licensing and Appeal Boards' present authority to
raise issues sua sponte under 10 CFR 2.760a extends to this first category.
Insofar as the second category -- supplementation of existing regulations -
-is concerned, boards are to apply the new requirements unless they are
challenged , but they may be litigated only to a limited extent.
Specifically, the boards may entertain contentions asserting that the
supplementation is unnecessary (in full or in part) and they many entertain
contentions that one or more of the supplementary requirements are not being
with; they many not entertain contentions asserting that additional
supplementation is required. The boards authority to raise issues sua sponte
shall be subject to the same limitations. Past adjudicatory decisions of the
Commission have been clear that generally a finding of compliance with the
regulations entitles one to the requested permit or license insofar as the
requirements the Atomic Energy Act are concerned. 9/ Accordingly, absent
some special showing, 10/ no party has in the past been entitled to litigate
matters going beyond NRC regulations before boards. The Commission guidance
on litigation of this second category of requirements will thus serve to
expand the scope of permissible contentions to include issues as to the
necessity for or compliance with certain TMI-related requirements that are
supplementary to existing regulations.
In order to focus litigation of TMI-related issues, the commission instructs
its staff to utilize, to the maximum extent practicable, the Commission's
existing summary disposition procedures in responding to TMI-related
The Commission believes that where the time for filing contentions has
expired in a given case, no new TMI-related contentions should be accepted
absent a showing of good cause and balancing of the factors in 10 CFR 2.714
(a)(1). The Commission expects strict adherence to its regulations in the
Also, present standards governing the reopening of hearing records to
consider new evidence on TMI-related issues should be strictly adhered to.
Thus, for example, where initial decisions have been issued, the record
should not be reopened to take evidence on some TMI-related issued unless
the party seeking reopening shows that there is significant new evidence,
not included in the record, that materially affects the decision.
Separate and dissenting views of Commissioners Gilinsky and Bradford are
Samuel J. Chilk
Secretary of the Commission
Dated at Washington, D. C.
the 16th day of June, 1980
* Section 201 of the Energy Reorganization Act, 42 U.S.C. 5841 provides
that action of the Commission shall be determined by a "majority vote
of the members present. "Commissioner Bradford was not present at this
Affirmation session, but had previously indicated his intention to
dissent. Had Commissioner Bradford been present at the meeting he would
have dissented. Accordingly, the formal vote of the commission was 3-
1 in favor of the decision.
1/ "Staff Requirements - Discussion of Options Regarding Deferral of
lIcenses," memorandum from Samuel J. Chilk, Secretary to Lee V.
Gossick, Executive Director for Operations, May 31, 1979.
2/ "Suspension of 10 CFR 2.764 and Statement of Policy on Conduct of
Adjudicatory Proceedings," 44 FR 65050 (November 9, 1979).
3/ "Lessons Learned from TMI-2 Accident," Roger Mattson to NRR staff, May
4/ Report of the President's Commission on the Accident at Three Mile
Island, " The Need for Change: The Legacy of TMI," October 1979;
U.S. Nuclear Regulatory Commission, "TMI-2 Lessons Learned Task Force
Status Report and Short Term Recommendations," NUREG-0578, July 1979
U.S. Nuclear Regulatory Commission, "TMI-2 Lessons Learned Task Force
Status Report," NUREG-0585, August 1979;
U.S. Nuclear Regulatory Commission Special Inquiry Group, "Three Mile
Island: A Report to the Commissioners and the Public," January 1980.
5/ U.S. Nuclear Regulatory Commission, "NRC Views and Analysis of the
Recommendations of the President's Commission on the Accident at Three
MIle ISland," NUREG-0632, November 1979.
6/ U.S. Nuclear Regulatory Commission, "NRC Action Plans Developed as a
Result of the TMI-2 Accident," NUREG-0660
7/ U.S. Nuclear Regulatory Commission, "TMI-Related Requirements for NEw
Operating Licenses," NUREG-0694, June 1980.
8/ Consideration of applications for an operating license should include
the entire list of requirements unless an applicant specifically
requests an operating license with limited authorization (e.g., fuel
loading and low-power testing).
9/ Maine Yankee Atomic Power Company (Maine Yankee Nuclear Power Plant,
Unit 2), ALAB-161, 6 AEC 1003 (1973), affirmed, CLI-74-2, 7 AEC 2
(1974), affirmed, Citizens for Safe Power v. NRC, 524 F.2d 1291 (D.C.
10/ See 10 CFR 2.758
COMMISSIONER GILINSKY'S SEPARATE VIEWS
REGARDING THE COMMISSION'S POLICY STATEMENT --
COMMISSION GUIDANCE FOR POWER REACTOR OPERATING LICENSE
I regard the Action Plan as a directive to the staff from the Commission
acting in its supervisory capacity and expect that it will be given
appropriate deference by the adjudicatory boards. However, in view of the
fact that the Action Plan and the NTOL list are not regulations, and are not
the result of a public proceeding, they cannot be given the weight of rules.
Nor does the fact that the Commission spent a great deal of time developing
the Action Plan change the situation. There were many items to deal with and
the Commission did not spend much time on each of them and very little on
some. Moreover, as Commissioner Bradford has pointed out, the industry has
had extensive opportunities to comment on the Action Plan and to obtain
changes, which in almost all cases have resulted in a reduction of the
requirements initially proposed by the staff. To now limit litigation to the
issues of whether these requirements have been satisfied or are excessive,
and to exclude discussion of whether they go far enough, is a manifestly
unfair and unwise policy.
DISSENTING VIEWS OF COMMISSIONER BRADFORD
To curtail the rights of parties involved in NRC adjudicatory
proceedings through the device of a policy statement is, if it is legal at
all, a radical act requiring (one would have thought) urgent justification.
The justifications advanced in this case amount to no more than a bored yawn
toward the concerned public. Specifically, they are: 1) We have worked very
hard, and what we have done is too complicated to defend; 2) We are too busy
to listen to you, and despite our $400 million annual budget, we can't
afford to hear you 1/ and; 3) Because the plan involves "policy" common to
all cases rather than to a specific number of them, the public should not be
heard on it at all. There are four reasons why the Commission should not be
taking this action, even assuming that it has the power to do so.
First, the action embodies precisely the complacency that the Kemeny
Commission, among others, suggested as a strong contributing factor to the
accident at Three Mile Island. Rather than strengthening the role of the
public in NRC proceedings as advocated by both the Kemeny Commission and the
NRC's own Special Inquiry Group Report, this action lessens the public's
1/ The statement that the Commission would have "to litigate the entire
Action Plan in each proceeding (policy statement, page 6)" is of course
false, and it reveals just how little the Commission understands it own
proceedings. The entire Action Plan is not at issue here - only those
items not within the reach of current regulations. Furthermore, it is
inconceivable that each of those items (or even most of them) would be
litigated in every proceeding.
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ability to comment on the adequacy of many of the technical responses to
Three Mile Island. This attitude that the regulatory agency and the industry
between them know best ignores a series of failures in the AEC/NRC licensing
history of which Three Mile Island was only the most dramatic example. It is
noteworthy that the staff, which did most of the work on which the
Commission now relies, did not recommend such a policy statement. It appears
that they may briefly have learned more than the Commission.
Second, the action is clearly unfair. One set of prospective litigants
- the industry - has been extensively involved in the development of the
Action Plan. An industry panel met with the Commission, and the industry has
been in constant contact with the staff and in the providing of written
comments throughout the process. The plan has never been put out for public
comment, and little or no public comment has taken place. However, as a
result of the commission's actions, the only group that will be permitted to
contest the questions at issue here will be the industry. Thus, those who
have had the greatest say in shaping the Action Plan will no be able to
challenge its requirements further, while those who have had no say in
shaping it will be foreclosed from challenging the very requirements that
they have had no opportunity to comment on.
Third, this action is unnecessary. For one thing, legitimate processes
exist through rulemaking for the Commission to develop a document of general
applicability. I would not have recommended
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it in this case, but such a process would at least have cured the worst of
the defects in the Commission action. Furthermore, even without a
rulemaking, the Action Plan could have been used to shape the staff position
in NRC hearings. As a practical matter, this would have made it a document
of considerable influence. In uncontested cases, it would clearly have
governed. Intervenors in contested cases would have been taking on a very
heavy burden in trying to go against a staff position and convince the
Commission to change its mind on a document that it had already approved.
However, they would have least had had a change to prepare a record and to
make the attempt.
Fourth, the Commission's action does not lend the desired certainty to
the process. For one thing, it is certainly subject to challenge pursuant to
Pacific Gas and Electric Company v. Federal Power Commission, 506 F.2d 33
(D.C. Cir., 1974). Should such a challenge prevail, the Commission will have
lost far more time than it can possibly be saving through the measures taken
For another thing, it makes no sense for the commission to take this
action on the eve of the advent of a new Chairman, whose appointment is part
of the President's response to Three Mile Island. In order that no party
rely unduly on the policy statement at this time, I am hereby giving notice
that I intend to seek its reconsideration and revocation upon arrival of the
President's new appointee. It may of course be that no change will occur,
but at least the new appointee will have had a voice in choosing a vital
policy which he or she must preside over and defend.
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