ML23159A077
| ML23159A077 | |
| Person / Time | |
|---|---|
| Issue date: | 04/20/1984 |
| From: | NRC/SECY |
| To: | |
| References | |
| PR-050, 49FR16900 | |
| Download: ML23159A077 (1) | |
Text
DOCUMENT DATE:
TITLE:
CASE
REFERENCE:
KEYWORD:
ADAMS Template: SECY-067 04/20/1984 PR-050 - 49FR16900 - REVISION OF BACKFITTING PROCESS FOR POWER REACTORS PR-050 49FR16900 RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete
DOCKET FILE INVENTORY In the Matter of Docket No. PR-50 (49 FR 16900)
REVISION OF BACKFITTING PROCESS FOR POWER REACTORS VOLUME 1 Document Docket Date of Title or No.
Date Document Descri~tion of Document 01 04/18/84-04-/17 /84 Federal Register Notice - Publication for Public Comment (published 04/20/84-)
02 05/24/84 05/21/84 Comments NCPIRG and ~/ells Eddleman (1) 03 05/31/84 05/23/84 Comments Susan L. Hiatt (2) 04 06/04/84 06/01/84 Comments C-E Power Systems (Scherer)
(3) 05 06/04/84, 05/29/84 Comments Lynne Goodman (4) 06 06/04/84 05/31/84
- Comments Omaha Public Power District (Jones) (5) 07 06/04/84 undated Comments* M. I. Lev/is (6) 08 06/04/84 06/04/84 Comments American Public Power Association (Radin) (7) 09 06/05/84 06/04/84 Comments Union of Concerned Scientists (Curran/Jordan/Weiss) (8) 10 06/06/84 06/04/84 Comments Nuclear Utility Backfitting and Reform Group (Reynolds) (9) 11 06/06/84 06/04/84 Comments Atomic Industrial Forum, Inc.*
(Edelman) (10) 12 06/07/84 06/04/84 Comments Commonwealth Edison (Farrar)
(11) 13 06/07/84 06/05/84 Comments Duquesne Light (Woolever) (12) 14 06/07/84 06/01/84 Comments Westinghouse Electric CorporaJi on (Rahe) (13) 15 06/08/84-06/04/84 Comments Carolina Power & Light Company (Zimmerman) (14) 16 06/11/84 06/04/84 Comments Duke Power Company (Tucker) (15) 17 06/11/84 06/08/84 Comments Florida Power Corporation (vJilgus) (16) 18 06/11/84 06/07/84 Comments Stone & Webster Engineering Corporation (Bradbury) (17) 19 06/14/84 06/11/84 Comments Iowa E1 ectri c Light and Power Company (McGaughy) (18) 20 06/14/84-06/11/84 Comments Yankee Atomic Electric Compa.ny (Edwards) (19) 21 06/15/84 06/04/84 Comments C.J. Stephenson (29) 22 06/22/84 06/15/84 Comments Bechtel Power Corporation 23 06/28/84 06/25/84
( Karpa) (21)
Comments GPU Nuclear (Thorpe) (22) 24 08/22/84 06/07/84 Comments Department of Energy (Griffith) (23)
J
DOCKET FILE INVENTORY Docket No. PR - 40, 70, and 73 1
{48 FR 32182)
Document No.
01 02 03 04 05 06 07 Docket Date 07 /11/83 10/12/83 10/17/83 10/19/83 10/31/83 12/09/83 In the Matter of Implementation of the Convention on the Physical Protection of Nuclear Material Date of Title or Document Description of Document VOLUME 1 07/08/83 Federal Register Notice - Proposed Rule
{published 07/14/83) 10/10/83 Comments Braunkohle Transport USA (Harmon) 10/12/83 Comments Exxon Nuclear Company, Inc.
(Nils on) ( 2) 10/13/83 Comments GA Technologies (Mowry) (3) 10/25/83 Comments General Electric (Flowers) (4) 12/05/83 Comments Eldorado Resources Limited (Mackay-Smith) (5) 03/21/85 03/21/85 Federal Register Notice - Final rule (1)
Department of Energy Washington, D.C. 20545 Mr. Samuel J. _Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555
Dear Mr. Chilk:
JUN 7 9 J Ct-"-,
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-'1 1U:;1, *.II The Department of Energy (DOE) submits comments on the "Revision of Backfitting Process for Power Reactors" set forth in Federal Register, Volume 49, Number 78, pages 16900-906, dated April 20, 1984.
We welcome this opportunity to provide comments on the interim measures published as a draft Nuclear Regulatory Commission (NRC) Manual Chapter and staff procedures for managing plant-specific backfitting proposals for operating reactors.
For utilities that have plants in operation or plants under construction and from the standpoint of predictability and stability of the licensing process, backfitting is the single most significant immediate problem to be resolved in licensing reform.
The DOE supports the NRC 1s initiative to establish requirements and procedures for the management of the imposition of new or modified regulatory requirements for operating power reactors.
We concur with NRC 1s conclusion that existing NRC regulations on backfitting and past NRC staff practices do not adequately identify and justify proposed new or modified requirements.
In view of what seems to be an almost universal recognition that backfitting reform is essential, we urge the NRC to move promptly on the adoption of a meaningful backfit rule.
While DOE supports NRC 1s efforts to reform the management of the imposition of new or modified requirements for power reactors, we believe that a statutory basis would add a dimension of policy stability and predictability to NRC 1 s administrative proposals that is necessary to ensure effective long-term implementation.
This statutory preference has been expressed by the Regulatory Reform Task Forces of NRC and DOE, the Nuclear Utility Backfit and Reform Group, the Atomic Industrial Forum, the Edison Electric Institute, NRC 1 s Ad Hoc Committee on Regulatory Reform, and other nuclear related organizations. Although the specJfic proposals for backfit reform may differ, the organizations support the thesis that long-term discipline, stability, and predictability must be instituted by NRC for managing the backfitting process.
To have discipline, stability, and predictability, we believe the backfit process must contain four elements:
(1) a definition of backfitting that is comprehensive in nature; (2) a standard to be applied ih order to
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2 establish when a backfit will be required; (3) the factors/criteria to be analyzed to determine when the standard has been met; and (4) the procedures to be used for the review, approval, and implementation.
The DOE's specific comments on the NRC draft Manual Chapter for "Management of Plant-Specific Backfitting of Operating Power Reactors," will be addressed from the perspective of these four elements.
As noted in the NRC Regulatory Reform Task Force (RRTF) report, an appropriate and commonly understood definition of backfitting is essential to a rational backfitting process.
Defining proposed backfitting actions as 11 (a) a new interpretation or a change in an existing interpretation of the rules or regulations; or (b) a new staff position or a change in an existing staff position *.. " as defined in the Manual Chapter is not sufficient. First, it will not always be clear whether a staff position or interpretation should be considered 11 new or changed.
11 With the NRC's definition for backfit requirements, questions may arise as to whether backfit controls are warranted for certain staff actions. Secondly, the definition is too limiting in that it does not include rulemakings, analyses, tests, plants under construction, design approvals, and manufacturing licenses.
To avoid this situation, the definition of 11 backfit 11 should be:
11an addition, deletion, or modification to those aspects of the engineering, construction, or operation of a production or utilization facility upon which a permit, license, or approval was issued.
11 This definition avoids the difficult issue of where in the infrastructure of regulatory guidance the line of defining a "change or new 11 position is drawn.
Instead, any NRC imposed change that impacts an issued permit, license, or approval, as subsumed in our definition, is subjected to backfit management controls.
The primary purpose of the Manual Chapter is to "provide a uniform and consistent approach to backfit decisionmaking... and to yield balance between economic and potential safety consequences of backfitting decisions."
In order to assure consistency and predictability in the decisionmaking for deciding when a proposed backfit should be required, a definitive standard and the procedures to be used in determining when the standard has been met are essential. The backfitting standard sets the threshold for deciding when a proposed backfit should be implemented.
The threshold in 10 CFR 50.109 for a backfit is a finding "that such action will provide substantial additional protection that is required for the public health and safety or the common defense and security."
In contrast, the Manual Chapter only requires the staff to provide 11a brief statement of how the proposed requirement would improve safety.
11 This threshold is too low and not definitive enough.
The DOE recommends a standard for backfitting under which no backfitting would be required by the NRC unless it clearly can be demonstrated that the proposed backfit will substantially enhance public health and safety as a result of improved overall safety of facility operations, and that such improvement is justified when considered
3 over the rema1n1ng life of the facility.
The burden should be on the NRC to demonstrate clearly that the backfitting standard has been met, although an exception should be provided when a backfit is necessary immediately to protect the public health and safety or the common defense and security.
Furthermore, a single standard should be applicable in all situations where backfitting questions arise in proposed modifications of issued licenses and permits, of design and site approvals, and in renewal of such approvals.
Thus, the standard should be applicable to operating plants, those in the licensing pipeline, and future plants. This approach will provide the backfit decisionmaking process with discipline, stability, and predictability.
The factors set forth in the Manual Chapter for the "Cost-Benefit Analysis
appear to be appropriate for determining whether the recommended DOE standard has been met.
However, the proposed provisions for triggering the analysis turn the justification and appeal process with respect to proposed backfits on its "head." A significant concern with NRC past backfitting practice has been that a costly backfit, which resulted in only a marginal, if any, safety increase, expended scarce licensee resources at the ultimate expense of the ratepayer who is no safer from the consequences of an accident than he was before the backfit was implemented.
We submit that the procedures in the Manual Chapter, by not requiring an analysis as the starting point for the implementation of a proposed backfit, do not adequately address the above concern. This approach places the essential hard look at costs and benefits of a proposed backfit at the end of the process. Thus, no assurance will exist that a proposed backfit will result in substantial additional safety benefit until a licensee appeals twice:
once informally and once formally.
Also, this approach is in contrast to the procedures required for the imposition of generic requirements; where analysis is required prior to imposition.
The centralized review and approval of the documented justification analysis by the Committee to Review Generic Requirements of all proposed generic requirements prior to issuance are essential to a rational and systematic backfit process.
Only after a comprehensive documented analysis can the Commission be sure that the backfit will substantially improve safety and is cost beneficial.
Another problem with the implementation procedures in the Manual Chapter is that no single centralized review and approval process exists.
The process to be utilized is determined by whether the backfit is generic or plant specific, whether the plant is operating or under construction, or whether the backfit results from a licensing or inspection and enforcement action.
Centralized review and approval of all. proposed backfits independent of coverage, origin or plant status, assure consistency and bring the needed predictability and stability to the backfit process.
We believe that our comments will contribute to resolving the current backfitting problems and result in a revised backfit implementation process, which will provide up-front justification for a backfit, assure efficient allocation of NRC and utility resources, and protect the health
4 and safety of the public.
We look forward to providing other assistance that may be required to expedite the development and implementation of long-term discipline, stability, and predictability in the management of the NRC backfitting process.
Sincerely, b.~i~
Acting Deputy Director Office of Converter Reactor Deployment Office of Nuclear Energy
Nuclear DOLVi ETE[i U3NRC
- a4 JUN 28 P 2 :26 Mr. Samuel J. Chilk Secretary of the Corrmission U.S. Nuclear Regulatory Commission Washington, DC 20555
Dear Mr. Chilk:
June 25, 1984
Subject:
Revision of Backfitting Process for Power Reactors GPU Nuclear 100 Interpace Parkway Parsippany, New Jersey 07054 201 263-6500 TELEX 136-482 Writer's Direct Dial Number:
In response to the Federal Register notice (49 FR 16900) of April 20, 1984, the GPU Nuclear Corporation herewith submits comments on the subject revision.
As a general comment, it is encouraging to see that the definition of "backfitting 11 has been expanded to include changes to requirements as well as changes in NRC interpretations and is not confined, as it has been in the past, to only the addition of hardware.
There are two points that we would like to make with regard to the Objective. First, there is a statement:
"The objectives of this program are to eliminate or remove any unnecessary burdens placed on licensees, ***
while at the same time not reducing the levels of public health and safety." This raises the question--what is to be the baseline for the level of public health and safety, the plant as it exists and is being operated or the plant after some backfit is accomplished?
Does either have any validity? The Objective continues" *** the program should assure *** that requirements to be issued will in fact contribute effectively to the health and safety of the public *** " The key word here is effectively and this is the second point that we would like to raise. Almost all changes or modifications that the NRC suggests should improve safety. The question is how much will it improve safety? Will a proposed backfit entail the expenditure of large quantities of personnel resources, man-rem exposure, etc. for a slight increase in safety?
As the Procedures are now proposed, the burden of questioning the cost-benefit of a proposed backfit lies with the Licensee.
We believe that before any backfits are proposed the Staff should conduct a generic Acknowfcd:cd by card. :7 ~µ f...,-.;..,..,,
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Should the Licensee disagree with this analysis on a plant specific basis, they could then use the appeal process established within the Procedure revision.
As a final point, it should be stated in the finalized Procedures that taking exception to a proposed backfitting requirement will not be held against the Licensee during SALP or PAB reviews.
dls:0574f:0017f Sincerely, rffl-.1---
J. R. Thorpe Director Licensing & Regulatory Affairs
5026 Bechtel Power Corporation Engineers-Constructors Fifty Beale Street
'84 JUN 22 P 2,a2'.srancisco, Ca lifornia Mail Address: P.O. Box 3965, San Francisco, CA 9411 9 June 15, 1984 Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Attention:
Docketing and Service Branch
Subject:
Revision of Backfitting Process for Power Reactors, Federal Register Notice, Vol.49, No.78, April 20, 1984.
Gentlemen:
The subject notice requested comments on the interim measures that the NRC staff has developed for the imposition of new regulatory requirements for power reactors.
These interim backfitting measures were presented in the form of a draft chapter to the NRC Manual.
As stated in our letter of October 24, 1984, on this subject, we consider backfitting to be one of the most important issues to be solved before new nuclear power plants will be considered an attractive option.
The issue of backfitting has undoubtedly contributed to the cancellation of plants under *construction over the last year.
Although progress has been made in considering previous industry comments, the interim measures proposed do not adequately address certain key concerns.
We have participated with the AIF and other industry groups on addressing the backfit issue and concur with the comments in the AIF letter to the Commission dated June 4, 1984 regarding the subject Federal Register Notice.
We still must emphasize that the burden of proof should be with the originator of the proposed change.
This proof, including a cost-benefit analysis, must clearly demonstrate that the proposed backfit will "effect-ively and significantly" enhance public health and safety.
We appreciate the opportunity to comment and will continue to work for a timely and satisfactory solution to the backfitting issue.
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(49Fll /fp9tJtJ Mr. Samuel J. Chilk Secretary of the Commission C. J. Stephenson 9329 Appolds Rd.
Rocky Ridge, MD 21778 June 4, 1984 U. S. Nuclear Regulatory Coll111ission Washington, D.C.
20555 Attention:
Docketing and Service Branch Comments on the
- s4 Revision of the Backfitting Process for Power Reactors
Dear Mr. Chilk:
DOC:.lffT[
USNRc D JUN 15 A10 :32 In response to the Federal Register Notice (49FR16900) dated April 20, 1984, I hereby provide conments on the publication of the NRC Manual Chapter and Staff Procedures for the Backfitting of new plant specific requirements.
I consider these changes a fairly small, but nonetheless significant portion of the Commissions efforts to control the backfitting of new NRC requirements.
Specifically, I am encouraged with the provisions of the Manual and Procedures which direct NRC Staff members not to endeaver to force their own interpretations on an individual licensee at meetings or during inspections, and the provisions which require the establishment of backfit priorities for individual licensees.
I am, however, concerned that this prioritization may be undermined by the Procedures delegation to the NRC Project Manager of the development of implementation schedules for the licensee.
I do feet that cost/benefit evaluations should be performed prior to the transmittal of backfit proposals to licensees and that the measure of the acceptability of a proposed backfit should be that it both contributes effectively and significantly to the health and safety of the public.
Pc
Mr. Samuel J. Chilk U. S. Nuclear Regulatory Commission June 4, 1984 Page 2 Further, the implementing Procedures must contain a prohibition against the NRC Staff delaying other NRC actions or approvals which affect the individual licensee while the backfit appeal process is being pursued.
If this prohibition is not included, the backfit process itself will provide sufficient leverage for the NRC Staff to force a licensee to agree to unwarranted backfits.
I concur with the Commission, that an effective backfit management system is essential to the survival of the nuclear industry.
Attached are the specific comments on the NRC Manual changes and new NRC Procedures pursuant to the Federal Register Notice.
If there are any questions, please advise.
Yours truly,
Item 1
Attachment Specific Comments on NRC Manual Changes and New Procedures for the Backfitting Process for Power Reactors Paragraph 0514-02 NRC Manual Comment The Manual's stated objectives of eliminating any unnecessary burdens placed on licensees, reducing the exposure of workers to radiation and conserving NRC resources while at the same time not reducing the levels of protection of public health and safety can best be accomplished by requiring that sufficient NRC Staff work be performed in the formative stage of any backfit proposal.
The necessary staff work should be performed prior to any substantial NRC management or licensee management and staff resources being committed to the evaluation, and subsequent appeal of the backfit proposal.
I, therefore, strongly feel that a cost benefit analysis should be performed for all backfit proposals prior to the NRC management forming a decision on its merits and transmitting it to the Licensee.
The NRC must have some understanding of the relative magnitude of the safety improvement to be gleaned and an analysis of the cost benefit results in order to make an informed position as to the proposed backfit's merits.
All backfit requirements result in costs being imposed on the consumer due to licensee resources consumed.
The agency mandating a particular action should be able to justify the resulting expenditures in terms of public cost incurred and public benefit obtained over the remaining life of the facility. Costs which should be included in the cost benefit analysis are; engineering design, construction, procurement of materials, attributable portions of replacement power costs during downtime required for implementation, additional operating costs in terms of additional longterm manpower requirements and training, any measurable decrease in plant availability or reductions in plant power, and the costs of performing the evaluation of the impact of the backfit on the plant. This detail maybe logically inserted at 0514-043(d)(2).
Item 3
4 Attachment (Cont'd)
Page 2 Specific Comments on NRC Manual Changes and New Procedures for the Backfitting Process for Power Reactors Paragraph 0514-02 NRC Manual 0514-043 NRC Manual I. Paragraph 2 Both NRR and I&E Procedures Comment Additionally, it appears that the objective of the Chapter is to ensure that the levels of protection of the public are not reduced, rather than to determine if a new proposal which is designed to enhance the existing levels of protection should be backfit.
The backfit process should, therefore, only be used when there has been a degradation in the level of protection afforded the public, or when new technical information casts doubt on the existing level of protection or when the previous NRC Staff technical review was inadequate.
The words II and si gni fi cantly" as a measure of whether a backfit is worthy of implementation should be inserted. This comment applies to both the NRR and I & E Procedures.
The Cost Benefit Analysis should recognize that the risk to the public for an operating plant may be reduced by the limited number or remaining years of licensed life and recognize the licensee's legitimate costs as described in item 1 above.
Generic Letter 84-08 indicates that the backfit process applies to CP holders & NT0L's.
Neither of the Procedures reflect this fact, rather they state that the backfit procedures do not apply to CP holders and NT0L's.
I believe that the backfit process should apply to CP holders and NT0L's.
Item 5
7 S-D6 Attachment (Cont'd)
Page 3 Specific Comments on NRC Manual Changes and New Procedures for the Backfitting Process for Power Reactors Paragraph III.A. (5)
NRR Procedure III.A. (4)
I & E Procedure IV.B. (4)
NRR Procedure III.A.(1).(b)
I & E Procedure Comment The delegation of the scheduling of backfit requirements to the Project Manager or Regional Division Director appears to circumvent the NRC Manual directive that the priority of the backfit requirements be approved by both the Director of Licensing and the Regional Administrator with input from the Executive Director of Operations (EDO).
[0514-043(e)(3)]
I recommend that a more senior level NRC staff member (e.g.,
Assistant Director of Licensing or above) be delegated this responsibility.
Paragraph should be clarified to reflect that the EDO and Commission be notified of promptly imposed requirements that are made for the conmon defense or security.
There does not appear to be any genuine I & E backfit requirements that are not also Licensing requirements, since Implementation Section IV.A requires an order be issued to the Licensee.
Additionally, no provision is included in the I&E Procedure to implement, either after appeals or promptly, the backfit of an I&E requirement that is not also a licensing requirement.
If this is the intent, then the I&E Procedure need not exist. Should the I&E Procedure be deleted, I request that the last statement in the 3rd paragraph of Section I be reflected in the NRR Procedure.
Specifically, 11Backfit requirements are not to be imposed by individual staff members as part of routine meetings or communications between the staff and licensees or during inspections."
YANKEE ATOMIC ELECTRIC COMPANY
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Secretary of the Commission United States Nuclear Regulatory Commission Washington, D. C. 20555 Attention:
Docketing and Service Branch DOC KET Er USN
Subject:
Comments Pertaining to Revised Backfitting Process for Power Reactors (49FR, 16900, 20 April 1984)
Dear Sir:
Telephone (617) 8 72-8100 TWX 710-380-7619 FYC 84-07 Yankee Atomic Electric Company appreciates the opportunity to comment on the subject document.
Yankee Atomic owns and operates a nuclear power plant in Rowe, Massachusetts.
The Nuclear Services Division also provides engineering and licensing services for other nuclear power plants in the Northeast including Vermont Yankee, Maine Yankee, and Seabrook 1 and 2.
We continue to believe in the necessity of substantive backfitting reforms for all plants, including those under construction.
We have pro-vided considerable input to the specific comments filed by the Atomic Industrial Forum on NRC Manual Chapter 0514 and will not repea t them here.
On balance, we believe that the appeal process for plant-specific backfitting contained in Chapter 0514 constitutes progress towards remedying the problem of undisciplined backfitting by requiring the staff to be more accountable for its backfitting actions.
We are pleased at the unusual step taken by the Connnission in noticing a manual chapter for public comments.
We would be pleased to comment on other important NRC manual chapters if it wouLd be helpful to NRC staff management.
However, NRC Manual Chapter 0514 is not the true rule-making reform that Yankee and other nuclear utilities are seeking.
It is our conviction that codified reforms are essential to resolve the longstanding backfitting issues, and we hope the Commission will move expeditiously to complete the current rulemaking.
Very truly yours, D. W. Edwards Assistant to the President DWE: tm Ackriowledged by card.* ~/t4f 7'£-
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Iowa Electric Light and Power Company June 11, 1984 NG-84-2429 Mr. Samuel J. Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 ATTENTION:
Docketing and Service Section
- 84 JUN 14 A71 :J6
Subject:
Federal Register Notice on Revision of the Backfitting Process for Power Reactors (49 Fed. Reg. 16,900)
Dear Mr. Chil k:
Iowa Electric Light and Power Company supports the letter and detailed comments on the referenced Notice filed by the Atomic Industrial Forum on June 4, 1984.
In addition to those comments we would like to note that Iowa Electric developed its "Plan for the Integrated Scheduling of Plant Modifications for the Duane Arnold Energy Center" which is intended to facilitate the systematic and timely implementation of plant modifications.
The NRC has recognized the value of this approach and issued an amendment to the DAEC Operating License which provides for implementation of the Plan.
It is also encouraging other licensees to adopt NRC-approved plans for integrated scheduling.
We understand that, in following the procedures published in the referenced Notice, the NRC Staff will, of course, appropriately accommodate the procedures of NRC-approved plans for integrated scheduling, such as the DAEC Plan.
RWM/BWR/dmb*
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B. Reid L. Liu S. Tuthill M. Th adani NRC Resident Office Sincerely, fl, w. ~
Richard W. McGa~gYy Manager, Nuclear Division Acknow!cd.s-c ::t by carcf.. fl,1/2_/ ¥1' CP.11P.ra/ O{fic*p,
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STONE & WEBSTER ENGINEERING CORPORATION 245 SUMMER STREET, BOSTON, MASSACHUSETTS OOC/ffT[r, USNRc*
ADDRESS ALL CORRESPONDENCE TO P.O. BOX 2325, BOSTON.* ~A 02107 w. u. TELE X 94-ooo, a4 JUN 1t o4.15 BOSTON 9 4 -0 977 D SIGN NEW YORK CHERRY HILL. N. J.
DEN V ER HOUSTON PORTLAND. OREGON R ICHLAND. WA WASHINGTON, D. C.
Secretary of the Commission U. S. Nuclear Regulatory Commission Washington, DC 20555 Attention:
Docketing and Service Branch REVISION OF BACKFITTING PROCESS FOR POWER REACTORS 49FR16900; APRIL 20, 1984 C ONSTRUCTION REPORTS op** _ 0,.
~ EXAMINATIONS "OC' _
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- June 7, 1984 OOC~T NUMB.UPR -~(J P.RO?OSED RULE. ___
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,411 ~R_ I h 'jtJtJ We are pleased to submit our comments on the subject NRC manual chapter and staff procedures.
Please refer to our earlier general comments on the Revision of Backfitting Process for Power Reactors (44FR44217; September 28, 1983) provided via letter dated October 28, 1983.
These general comments, in part, also apply to the draft manual chapter and procedures.
We have also generally endorsed the comments of the Atomic Industrial Forum on this matter.
Several points should be reemphasized.
The draft manual chapter and procedures are inconsistent with the existing 10CFRS0.109, which requires a finding that "such action will provide substantial additional protection which is required for the public health and safety or the common defense and security" (emphasis added).
The stated objective in paragraph 0514-02 of the draft manual chapter is that the Commission 11should assure to the extent possible that requirements to be issued will in fact contribute effectively to the health and safety of the public and the common defense and security."
These differing objectives represent inconsistent thresholds for backfit requirement implementation.
If the Commission intends to make such significant changes to the regulation on backfitting, it should be done explicitly and by rulemaking.
The methods for justifying a backfit requirement are inadequate.
The suggested "brief statement of how the proposed requirement would improve safety" is inconsistent with the objectives of backfitting.
The Commission should perform a cost-benefit analysis prior to imposing a backfit.
We recommend that, as a
- minimum, the information outlined in paragraphs 514-043a, b, and c(l)-(9) should be required for the analysis.
This information is necessary to make a rational decision on a given backfit issue.
The cost-benefit process should precede any appeal process available to the licensee.
Acknowledged by card ** (o/tf./..~':t:_
u.t. NUctEA~ 1}J(;ULAfdi1.Y COMMISSION DOCKETll'!G t, SERVICE SECTION O~;IQ: Ci T :- ;:,- -:-nAn o: 'j" IL,.:,,,'-,*:.1 ' 1 *.," :-t.
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6/7/84 In addition to encouraging rule changes as a necessary step in controlling backfits, the Commission should also expedite its review and approval of interim procedures to control the backfitting problem for plants under.
construction.
We appreciate this opportunity to assist in the development of this manual and procedures and hope that these comments will be of use to you.
R. B. Bradbury Chief Licensing RBB:amg
Florida Power (O RP O AA.T !O N June 8, 1984 3F0684-02 Mr. Samuel J. Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention:
Docketing and Service Branch
Subject:
Crystal River Unit 3 Docket No. 50-302 Operating License No. DPR-72 OOCKETU!
USNR
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(~P/4 /C,91/d Interim Measures On Backfitting Set Forth In Draft NRC Manual Chapter And Staff Procedures (49 Fed. Reg. 16900)
Dear Sir:
Florida Power Corporation (FPC) has reviewed the comments submitted by the Nuclear Utility Backfitting and Reform Group (NUBARG) on the subject documents and wishes to express concurrence with the opinions presented.
FPC urges the NRC staff to give serious consideration to the recommendations when planning future actions on this important subject.
Sincerely, Jl)~
W. S. Wilgu Vice Presi t
Nuclear Operations AEF/feb cc:
Mr. J. P. O'Reilly Regional Administrator, Region II Office of Inspection & Enforcement U.S. Nuclear Regulatory Commission 101 Marietta Street N.W., Suite 2900 Atlanta, GA 30303
- edged by card. ~i,;~
GENERAL OFFICE 3201 Thirty-fourth Street South* P.O. Box 14042, St. Petersburg, Florida 33733
- 813-866-5151
Postm r'*
Copi Add I I"
Spaci" Di *d:,,':o 1
HAL B. TUCKER V10E PRES IDENT NUCLEAR PRO D UCTION DUKE P OWER COMPANY P.O. BOX 33189 CHARLOTTE, N.G. 28242 June 4, 1984 DOCKETED USNRC.
TELEPHONE (704) 3 73-4:"S31
- a4 JUN 11 P 1 :18 Mr. Samuel J. Chilk Secretary of the Commission U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Attention:
Docketing and Service Branch
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-JUCK£T NUMOER PR. -52 (f§)
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Subject:
Federal Register Notice on Revising the Backfit Process for Power Reactors
Dear Mr. Ch ilk:
Duke Power Company has reviewed the subject document which was noticed in the Federal Register on April 20, 1984 (FR Vol. 49, No. 78).
We appreciate this opportunity and invite your attention to the following major considerations.
Additional detailed comments are attached as Attachment A.
First and foremost, we believe the NRC Backfit Process for Power Reactors should be in full compliance with 10CFR50, §50.109.
It should explicitly refer to this regulation and should reflect the requirement of this regulation that NRC determine that a backfit to a facility will "provide substantial, additional protection which is required for the public health and safety".
The procedures require the staff to determine cost and benefits of a proposed new requirement only after a formal appeal by a licensee objecti ng to a new staff proposal.
By the process in these procedures, this appeal constitutes the third overt action by a licensee in opposition to a staff action, the first two being the two stages of informal appeal.
Thus, the licensee has fostered establishment of a well-entrenched staff opinion in opposition to his position before a full evaluation of the intended backfit is conducted by the staff.
Until that time, staff opinion can be based on".** a brief statement of how the proposed requirement would improve safety... ".
In addition, the licensee's SALP review may be adversely affected by this process.
There are two line items on the SALP input sheet which may be affected.
These are:
(1)
Approach to Resolution of Technical Issues from a Safety Standpoint; and (2) Responsiveness to NRC initiatives.
If the licensee appeals a proposed backfit which reduces the SALP score, what recourse does the licensee have?
The SALP process may discourage licensee from appealing a proposed backfit, even though it may not be technically justified.
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The Commission's approved charter for the Committee to Review Generic Require-ments (CRGR), emphasized that" *** controls are to make sure that requirements issued do, in fact, contribute effectively and significantly to the health and safety of the public *** ".
The process established by the procedures imple-menting COMSECY 83-3 diminish improvements achieved in the licensing process by the CRGR charter in three ways.
First, they promote an adversarial environment between licensees and NRG staff by requiring the licensee to force the staff, through a formal appeal, to take a hard look at the merits of a proposed new requirement.
Second, they appear to diminish the significance of individual plant backfits, vis-a-vis generic backfits, in that they demand a lesser test of (a brief description versus a cost/benefit analysis) effectiveness and sig-nificance prior to imposing the requirement unless it is vigorously and repeat-edly opposed.
Third, the use of the term "significantly" is missing from the objective of determining if the proposed backfit contributes effectively and significantly to the health and safety of the public.
This represents, without any justification, a lesser test for plant-specific backfits than that required for generic requirements as described in the Commission's approved CRGR charter.
The information forwarding these procedures must contain a prohibition against utilization of licensee appeals of a backfit under these procedures as an excuse for delay of staff action (e.g., issuance of an operating license, issuance of a SER, etc.) or the process itself will provide sufficient leverage to force licensee agreement to unwarranted backfits.
The exceptions specified (i.e. Section 0514-046, page 16902 and elsewhere) in the NRG Manual relieves the staff from making plant-specific assessments for requirements which have been reviewed by the CRGR and approved by the Executive Director for Operations (EDO), unless " *.. the EDO determines.that significant plant-specific issues were not considered during the CRGR review."
We make two points* relative to this. First, it is unclear how a licensee could raise the point that his plant involves significant issues.which were not considered during the CRGR review, since no licensee is privy to the discussions at CRGR.
Plant specific characteristics which may make the backfit unnecessary or render the plant less safe should be considered.
Second, by specifically excluding several sources of backfit, the NRG is effectively bypassing the existing backfit rule on issues on which some form of generic review was performed and eliminating any form of technical discussion.
We believe that while a generic requirement may be appropriate, technical discussions and differences may legitimately exist on a plant-specific basis which should be considered.
The problem is not so much the rules themselves, but rather the staff interpreta-tions that go along with them.
As the Process notes, a staff proposed require-ment includes:
(1) a new interpretation or a change in an existing interpretation of the rules or regulations; or (2) a new staff position or a change in an existing staff position as set forth in various documents which do not in all cases undergo CRGR review.
Further clarification is needed to specify how a plant-specific backfit
.may be raised by an individual licensee and how the ED0 makes the deter-mination outlined in the procedures.
The Manual may be interpreted as precluding an appeal of any backfit to the ED0 or the Commission.
This truncation of the appeal is inconsistent with the licensee's right to appeal under the Administrative Procedures Act.
There appears to be a major discrepancy between the procedure addressing licensing activities and the procedures addressing Inspection and Enforce-ment Activities.
Paragraph III.B.2., page 16903, states:
"Since the imposition of plant-specific licensing requirements is the responsibility of the office of Nuclear Reactor Regula~
tions, all request for informal appeal of proposed backfit licensing requirements by a licensee should be directed to the Director, Division of Licensing, regardless of the source of the proposed staff requirements (~.e., NRR, NMSS, IE or Regions)."
Paragraph III.B.2, page 16905, states:
"The licensee must notify the Regional Administrator in writing of its desire to appeal.
The appeal process will be conducted as follows:
- a.
The licensee and the appropriate Regional Staff are each to formulate a position statement or the issue and forward this to the Region Projects Division Director or equivalent."
This apparent conflict in authority should be corrected.
In summary, we continue to strongly support changes to the regulations as a necessary element in solution of the backfitting problem.
We believe NRC should clarify the proposed Backfit Process to incorporate our comments in-cluded herein.
We believe that the process should be fully in compliance with the existing backfit regulation, including being applicable to plants under construction.
Very truly yours,
¥4,ztf?L_ -
Hal B. Tucker RLG:glb Attachment Item 1
2 COMMENTS ON CHAPTBR 0S14 NRC PROGRAM FDR MANKCEMENT OF PLANT-SPECIFIC BACK~!TTING 0~ oP!R!fING POWHR ~~CTORS Parai!!l!h 0S14-02 0514*02
,*r,;.
Comment The stated objectives of the interim backfitting procedures are to eliminate or remove any unnecessary burdens-on the licensee,.reduce the exposure of workers to radiation and conserve NRC resources.
By the Staff's own estimates in SBCY-83-321, however, the cost to the licensee appealing a proposal backfit 1s approximately $100,000.
This effectively eliminates the appeal process as a viable option for all proposed backfits~
whether warranted or unwarranted, when the estimated cost of the backfit is less than
$100.000.
As has been noted before when commenting on COMSBCY-83*3. the cost-benefit should be perfomed before the backfit is proposed and not only when requested by the licensee at tneend of an expensive appeal process.
It is stated that the n *** program should
- a$sure to the extent possible that requirements to be issued will in fact contribute effectively to the health and safety of the public *** . This statement does not go far enough and is not consi$tent with the Commission's Policy Statement on Backfitting (48FR44173-44174).
The Policy Statement indicates that NRC-imposed,eneric requirements should contribute ef£eet1vely and s~nficant~ to-the health and safety of the pu Iic temp asis added) and that procedures governing plant-specific backfitting questions should be similar to those applied by the Co:mmi ttee to Review Generic Requirements.
The words "and significantly" should be added**
to the draft manual chapter to recognize the intent of the Commissionts Policy Statement on Backfitting.
Item 3
4 s
-6 Paragraph 0514-05 0514-046 0514.. 042 0514-043
.. z.
Comment Staff proposed requirement should include data requests.
A utility may be forced to spend significant resources proving to an IB inspector that it meets its current licensing
- basis after these issues are closed with NR.R.
- In addition, IB inspectors ha'Je their own positions on how regulatory requirements should be ~et even after NRR has reviewed the issue and written an SBR on the topic.
These positions often translate into physical plant changes involving significant nanpower and
- monetary allocations.
These new inter~retations by IE should be considered backfits.
Additional clarification is needed on the interpretation of exemptions regarding how a licensee seeks relief from a generic requirements based on plant-specific characteristics (see comments in the cover letter).
The final decision responsibli ty on "informaltr Sfpeals lies ~ith the Director of NRR or the Director of I&E - the judgement after the ap~eals are exhausted is by the same offices.
Neither the BOO nor the Commissioners are involved in the final judgement.
ls the next step litigation?
The section is silent on the acceptance criteria to be used by the Director, NRR or Director. I&B when reviewing the cost-benefit analysis.
To ensure that the objectives of the program are met i.e.,"*** to eliminate or remove any unnecessary burdens placed on licensees *** 11 and to ensure consistency between NRR and I&B review of cost.benefit analysis, acceptance criteria should be included in this Chapter, The criteria selected should recognize the Qb,ective of iaragraph 0514-02 that *u *** requirements to be 1$sued *** contribute effectively (and significantly if item 2 is incorporated) to the health and safety of the public *.. u.
According to the NRC estimates the cost-benefit evaluation is only a two-man week investment.
The inference cf this estimate is that the appeals are a forum for the staff to levera&e their position a~ainst a licensee rather than focus *on the iier1ts or demerits of the proposal.
Item 7
Pa;:agraph General Comment The appropriate Office Director can impose a requirement if it is judged that public health and safety warrants such action.
There is no discussion 0£ recourse if later that decision is proven wrong.
There is no accountability for either the cost/benefit assessment or errors in the decision making process.
z 3
4 COMMENT ON THE PROCE.DURB FOR MANAGRMBNT OF Pl.ANT-SPECIFIC BACXPITTING OF OPERATING POWBR REACTORS RESULTING FROM LICENSING ACTIVITIES Pa:ragrs.ph I
I.1 III.A.I III.A.2 Comment For consistency with the Procedures for Management of Plant*Specific Backfitting from
. I:E Activities, the following should be added.
- to the end of the second paragraph in the right-hand column of page 16902., "and other approved dcc:uments. 11 Additional clarification is needed on the interpretation of exemptions regarding how a licensee seeks relief from a generic requirements based on plant-specific characteristics (see comments in the cover letter).
The word "significantly should be added so that the sections reads, "identification and *** how the requirement would s~~!ficantly improve safety.n In addition to the NRC identifying proposed backfits. this paragraph should recognize that the licensee may identify a proposed requirement as a backfit.
This ~aragraph does not address one of the princ1ple policy statements on back£itting (FR Vol. 48* No. 189, 9/28/83 - Policy Statement)
"n.controls should ensure that NRC*imposed generi~ requirements do in fact contribute effectively and significantl~ to the health and safety of the public ***
(.Emphasis added).
- In particular, the require~ent that the Staff must provide a "brief statement c:oncerning how proposed change In Staff positon would result in an improvement of safety" does not ensure that new requirements contribute si,nificantly
- to the health and $afety of the pu6 IE.
Additional justification*for imposing proposed backfits. that demonstrate how a significant inprovement in safety is to be acnieved by the backfitJ should be incor~orated into this paragraph and the objectives to be more aligned with the Policy statement on backfitting.
Item 5
6 7
. f~ragraph III.B.2 III.C.4 III.C.4 Comment This paragraph seems to conflict with S.ection B of the IE procedure since this paragraph requires that all licensing requirements, regardless of source;* be referred to NRR. " The implication is that inspection requirements are not necessarily a condition of licensing *
. This discrepancy needs co~recting.
The section is silent on the acceptance criteria to be used by the Director. NRR when reviewing the cost-benefit analysis.
To ensure that the objectives of the program are
- - met i. e, " *** to eliminate or remove any w,.necessery burdens placed on licensees *** 11 and to ensure consistency between NRR and IijB review of cost~benefit analysis, acceptance criteria should be included in this paragraph.
The criteria selected should recognize the objective of paragraph 0514*02 of the NRC Manual-that"*** requirements to be issued *** contribute effectively (and S!&ai-ficantl! if the recommendation is Incorporated to the health and safety of the public *** ".
The Director of NRR is charged with the judgement on the cost/benefit analysis.
As written, his staff prepares the a.na.lysis, his senior management is involved in the appeal process and then h~ will be put in a position
. of overruling his technical staff and senior management; highly unlikely.
The next appeal, the formal one which incorporates the cost benefit analysis. can be hardly more than a pro-forma repeat of the previous meeting.
The appeal process should include at least the EDO.
- -*~-------------------------------~--:--
Item 1
2 3
4 5
6
. COMMENTS ON PROCEDURE FOR MANAGEMENT OF PLANT-SPECIFIC BACKFITTING OF OPERATING POW.BR REACTORS RESULTING FROM INSPECTION AND ENFORCEMENT ACTIVITIES
-~
I. 1 III.A. 2
- III.A.3 III.A.~
III.B.2.i The word *"significant" should be added so that the section reads "identification andf *.* r~quirements would !ignifi£!U~!*I improve sa ety.'
Additional clarification is needed.
As written, the staff's interpretation or position on a generic IE bulletin cannot be questione4 by a licensee factoring in plant*specific characteristics {see the comments in the cover letter).
. In addition to the NRC identifying pro~osed backfits, this paragraph should recognize that the licensee may identify a proposed requirement as constituting a backfit.
See the fourth comment on the Licensing Activities Procedures *
. This paragraph is inappropriate and only serves to instill in a 1icen5cc who may consider filing an appeal that such an action will not be viewed favorably.
It should be deleted from this procedure.
III;C.1.b.(ii)
For consistency with the pro~edures for backfits from licensinJ activities, the last sentence should be modified to:
0 A report on the result of the analysis will be provided to
~he Dire~tor, IijB~ and the licensee for comment with copies *** u (new words underlined)
- lte*
7 8
Paragraph III.C.1. b. iii General
-z-co=ment The section is silent.. on the acceptance criteria to be used by the Director, IE when reviewing the cost*benefit analysis.
To ensure that the objectives of the program are met i.e.,"*** to eliminate or remove any unnecessary burdens plac:ed on licensees *** "
and to ensure consistency between NRR and I&E review of cost~benefit analysis,.acceptance criteria should be included in this paragraph, The criteria selected should recognize the objective of paragraph 0514-02 of the NRC Manual that"*** requirements to be issued *** contribute effectively (and significantly if the recommendation is incorporated) to the health and safety of the public *** ",
The same flaw exis.ts in the IE process.
That is, any aeaningful evaluations, justification, and assessment of the change takes place on the part of the staff only after three levels of appeal and a fourth-formal request 6yktne licensee.
Carolina Power & Light Company Mr. Samuel J. Chilk Secretary of the Commission June 4, 1984 U. S. Nuclear Regulatory Commission Washington, DC 20555 DOCKETErJ SERIAL: USNES-84-250 084 JUN -8 P 3 :Q5
REFERENCE:
Revision of Backfitting Process for Power Reactors
Dear Mr. Chilk:
Carolina Power & Light Company (CP&L) has evaluated the Federal Register notice concerning Revision of Backfitting Process for Power Reactors, 49 Federal Register 16900.
In so doing, CP&L has closely worked with the Nuclear Utility Backfitting and Reform Group (NUBARG), and supports and endorses the comments offered by NUBARG.
Because of the importance of this issue, CP&L would like to provide a number of additional comments.
Because the program for management of backfits does not require the NRC Staff to fully analyze a proposed backfit initially, CP&L is concerned that the structure of the program will produce an adversarial relationship between NRC and licensees.
By the time that a licensee initiates the appeals process established under the program, both the licensee and the Staff will be in the posture of advocating an established position on the necessity of a proposed backfit.
To alleviate this problem, more emphasis should be placed on good front-end staff work, including consultation within the Staff (especially with inspection and enforcement personnel at the affected plant) on the practicality of the proposed backfit and communication with the licensee prior to issuance of the proposed backfitting order.
In addition to this general concern, CP&L believes that there are problems with specific provisions of the backfitting program.
With respect to Chapter 0514 NRC Program for Management of Plant-Specific Backfitting of Operating Power Reactors, we offer the following comments:
Section 0514-043 (Cost Benefit Analysis)
CP&L believes that a Cost Benefit Analysis should be performed prior to the transmittal of any new staff-proposed requirements in Section 0514-041.
To prevent unnecessary impact on licensees, the Staff should prioritize proposed backfits, assess the risk that will be reduced by the proposed backfit, and generally analyze the full impacts of its action.
The burden to establish the effectiveness of a proposed backfit should be placed on the Staff.
An exception to this procedure could be made when the estimated cost of physical plant changes under the proposed backfit, including long-term operating and maintenance cost, is small (e.g., less than
$50,000) per generating unit.
411 Fayetteville Street
- P. 0. Box 1551
- Raleigh, N. C. 27602
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Section 0514-044 (Implementation of Requirements) - The factual basis for determinations by the Office Director under this section should be documented and transmitted to licensees concurrent with or prior to imposition of requirements.
With respect to the Procedure for Management of Plant-Specific Backfitting of Operating Power Reactors Resulting from Licensing Activities, CP&L provides the following comments:
Section III - Detailed Process Description Item A - Identification of Proposed Backfit Part 2.d.
CP&L believes the following sentence should be added:
"The plan and subsequent revisions shall be formally transmitted to licensees. "
This will provide a current NRC plan at licensees' nuclear sites for use by management in planning backfitting activities.
Item C - Cost-Benefit Analysis Part 1 -
As explained above regarding Section 0514-043, CP&L believes that the cost-benefit assessment comes too late in the process except for backfits involving minor physical changes.
Part 3 - States that the results of the cost-benefit analysis will be transmitted to the licensee for comment and to the Director of NRR.
CP&L believes that the actual analysis should be sent to the licensee for comments.
Part Sb -
CP&L believes the first sentence should be revised to read:
"If the Director's decision is that the backfit license requirement is appropriate, the licensee will be informed of the decision by letter with a documented basis for the determination, including specific consideration of licensee objections or recommendations.
The licensee will then be afforded the opportunity to conform to the decision."
If the Staff provides more documentation for its decisions, that will allow licensees to review them more thoroughly and perhaps result in better communications and understanding between the Staff and licensees."
Part Sc -
CP&L believes that the paragraph should state:
"A copy of the cost benefit analysis, the licensee's comments, and the NRR Director's decision will be placed in the Public Document Room with the Project Manager/DL having full responsibility for completeness.
In addition, a copy of all the above should be formally transmitted to the licensee. "
Section V - Recordkeeping and Reporting - The procedure states that a monthly status report which describes the proposed staff requirement, the licensee's position, and the stage of appeal will be submitted to the Director, Division of Licensing.
CP&L believes that a copy of this report should also be transmitted to the licensee.
Mr. Samuel J. Chilk 3 -
With respect to the Procedure for Management of Plant-Specific Backfitting of Operating Power Reactors Resulting from Inspection and Enforcement Activities, CP&L provides the following comments:
Section III - Detailed Process Description Item C - Cost-Benefit Analysis Part 1 -
As explained above regarding Section 0514-043, CP&L believes that the cost-benefit assessment comes too late in the process except for backfits involving minor physical changes.
Part lb(iv) -
CP&L believes the first sentence shoul d be revised to read:
"The final decision will be provided to the licensee by letter with a documented basis for the determination, including specific consideration of licensee objections or recommendations.
The licensee will then be afforded the opportunity to conform to the decision."
CP&L appreciates the opportunity to comment on these backfitting procedures.
If there are any questions concerning our comments, please call Mr. Steve Laur, Project Engineer, at (919) 836-6094.
Yours very truly,
-f!-~
Manager Nuclear Licensing Section STB/ccc (204SNP)
DOCKET ET' USNRC Westinghouse Electric Corporation Water Reactor Divisions "84 JUN - 7 P 2 :QB Box 355 Pittsburgh Pennsylvania 15230 Mr *. Samuel J. Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention:
Docketing and Service Branch NS-EPR-2922 June 1,
tlOC\\<.E1 NU'..\\GEH p *-.5d P.,ROPOSED RULE ___ _.~
C 49 FR.. /~ 9cJO Subject :
Revision of Backfitting Process for Power Reactors
Dear Mr. Chilk :
Westinghouse has reviewed the NRC Interim Backfit Procedures (draft NRC Manual Chapter and Staff Procedures) published in the Federal Register (49 FR 16900-16906, April 20, 1984) and is pleased to take this opportunity to provide our comments.
Westinghouse is very encouraged by the growing NRC awareness of the significance of the backfit issue and the need to implement chan6es in that regard.
While West:inghouse is still disappointed by the slowness 1-;ith which the Commission is proceeding with the final rulemaking for backfitting (given that the AIF and Regulatory Reform Task Force have spent considerable time and effort in developing workable proposed rc:gulations), we believe it is appropriate for the NRC to establish meaningful procedures for backfitting in the interim.
The interim procedures are 2 step in the right direction in that they serve to fo.crnulate a structured and consistent handling of plant-specific backf its which ha~ never existed in the past.
Westinghouse believes that many of the specific el ements incor!X)rated in the interim procedur es are both necessary and appropriate.
For instance, the incor!X)ration of upper NRC management approval of a proposed backfit, various l evels of available licensee c:!pf-ec:l, NRC and licensee agreement on implementation schedules, and cost-benefit analyses are all practical features of a !X)tentially sound backfit procedure that we believe should satisfy the desires and responsibilities of licensees as well as the NRC.
Westinghouse does have one major concern with the interim procedures in that they lack provisions for an earl v assessment of the benefit to be gained through the impl6nent2tic,n of the backfit in relation to the incurred cost of the backfit.
We r ecognize that the NRC has included a detailed cost-benefit analysis in the interir,1 procedures, but its utilization in the process is only after the licensee and NRC staff have gone through at least two levels of informal appeal.
This appeal process (meetings and associated position statement development) should be expected to involve a considerable time and resource expend i ture (for both the licensee and the NRC staff) that could be minimized or even eliminated if an upfront cost-benefit analysis were per:'om.ed.
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Mr. S, J. Chilk Page Two On the other hand, we also recognize that performing detailed plant-specific cost-benefit analyses for every proposed new requirement would place a tremendous strain on NRC staff resources which might be avoided if resolution were reached through the informal appeal meetings.
Given this situation, Westinghouse recommends that the NRC adopt a simplified cost-benefit screening criterion that each proposed new requirement must satisfy prior to transmittal to the licensee.
This simplified screening criterion could be based on soffie type of subjective deterministic model that considers overall safety benefit for the plant. It is not intended that this simplified cost-benefit screening criterion be a substitute for detailed pl ant-specific cost--benefit analyses that rr.ay be necessary later in the process *.. it is simply intended to provide a level of credibility to the need for implementing a proposed new requirement.
For illustration purposes, Figure 1 provides a simplified flow chart of the current NRC interim procedure (as Westinghouse understands it for non-order backfits resulting from licensing activities).
In comparison, Figure 2 has been provided to graphically illustrate the inclusion of the screening criterion discussed above.
In summary, Westinghouse supports regulatory changes as a necessary element in the solution of the backfitting issue and we additionally urge the NRC to apply the interim procedures to plants under construction.
WLL/kk Attacrm1ent Very truly yours, E. P. Rahe, Jr., Manager Nuclear Safety Department
FIGURE 1 INTERIM BACKFIT PROCEDURE LICENSEE ANO STAFF POSITIONS COPY TO LI CEIISE E I
NRC IDENT IFIES
!lE'.I ORQPOS EO REQU I R('lENT TRAIISfllTTAL TO LICENS EE YES LICENSEE UOTIFIES NRC IN WRIT!rlG FIRST ST AGE APPEAL MEETING (AO LEVEL)
SECOND STAGE APPEAL IIEETING
!DIRECTOR LEVEL) rw YE S YES LICENSEE
.~OTIFIES NRC I,~ \\IRJTING NRC PfR FORHS COST-BENEF IT ANALYSIS L ______ _
COIIMENTS DI RECTOR. NRR DECISION
~ROP YES
- DESCRIPT ION
- SUGGESTED r.rnERAL
!IIEF RA/IE FOR IMP LEMENTATION t NRC MANAGEflENT APPROVAL YES DROP YES DROP L ICE~SEE Alm NRC AGRE E ON SCHEDUL E
!IIPLEMEIIT EIIFORCE MENT
FIGURE 2 INTERIM BACKFIT PROCEDURE LICHIS(( AIIO STAff POSITJOIIS COPY TO
- 1. IC( l11([
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COl~l[NTS NRC IO[NTlfl[S Nn1 rRuro,rn R(()111 r.rncin
- O[SCRIPTIOII
- SJf,T(l 'Un or 1trn,* IT,.JOULO J,i.i;,nm'( SAr[TY
--- -- -----7 TRAIIS111 TT AL TO L!C[:;,((
I I
I DROP I
Y(S
~ 1((:1~~( MIO iOfl( AGR~ E Qi; SCn[~'Jlf
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Duquesne Liglt Nuclear Construction Division Robinson Plaza, Building 2, Suite 210 Pittsburgh, PA 15205 Secretary of the Commission United States Nuclear Regulatory Commission Washington, DC 20555 ATTENTION:
Docketing and Service Branch OOtKETEfJ USNRC JUN -7 2NRC-4-073 A10 :3~412i 181-5141 (412) 923-1 960 Telecopy (412) 787-2629 Ufr'C: OF S(i.,r ~-
OOCKt TIN'..i & su,*
8RANCY June 5, 1984 iJOt.:KET NUM8ER
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?ROPO ED RULE p -SO <..b (49 /:=,e, /t;;,r,tJoJ
SUBJECT:
Beaver Valley Power Station - Unit No. 2 Docket No. 50-412 Revision of Backfitting Process for Power Reactors Gentlemen:
On April 20, 1984,
Backfitting Process for comment.
the Commission published an interim "Revision of Power Reactors 11 (49FR16900) soliciting pub lie Duquesne Light Company (DLC) welc001es this opportunity to canment on Draft NRC Manual Chapter 0514 and the associated implementing procedures.
The summary, as published in the Federal Register states, 11 the Commission has concluded that existing NRC regulations on backfitting and past staff practices do not adequately identify and justify proposed new requirements."
The interim procedures represent a significant improvement in the area of justification.
DLC, however, believes that the procedures do not begin to address the problem of identifying proposed requirements as backfits.
DLC perceives the need for procedural answers to two questions with respect to backfi t identification:
- 1.
Who can identify a requirement as a backfit?
- 2.
When is a requirement a backfit?
As published, the procedures provide for identification of a
requirement as a backfit by the NRC staff (NRR, NMSS, IE, and the Regions);
but no provision is made for identification of a backfit by the licensee.
Nothing in the procedures prohibits the licensee from notifying the NRC staff that it has attempted to impose a new (backfit) requirement as if it were based on an existing regulation, established interpretation of a regu-lation, or established position on a regulation.
- DLC, however, believes that specific provisions should be made for licensee identification in cases where the staff has failed to implement its own procedure.
Al though these interim procedures do provide a partial answer to the second question, the guidance provided for the identification of plant-specific backfits is not as ccmplete as that provided in the NRC procedures for the control of generic requirements.
DLC proposes that the most effec-tive implementation would require that the previously approved requirement be specifically cited and accurately stat ed in documents where the staff
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United States Nuclear Regulatory Connnission Secretary of the Commission Page 2 proposes to impose a plant-speci fie requirement without implement at ion of the procedures for management of plant-specific backfitting.
The wording of this requirement could be similar to that used 1.n Attachment 2 to the CRGR Chart er, Procedures to Control Communication of Generic Requirements to Reactor Licensees," which is attached.
DLC believes that the proposed changes to the Backfit Management Program will further ensure that requirements will contribute to the health and safety of the public while optimizing the resources of both the NRC and the licensee.
RW/wjs Attachment cc:
Mr. H.
Mr. R.
Ms. M.
Mr. M.
Mr. G.
DUQUESNE LIGHT COMPANY By~~
Vice President R. Denton, Director (w/a)
DeYoung, Director (3) (w/ a)
Ley, Project Manager (w/a)
Licitra, Project Manager (w/ a)
Walton, NRC Resident Inspector (w/a)
PROCEDURES TO CONTROL COMMUNICATION OF GENERIC REQUIREMENTS TO REACTOR LICENSEES ATTACHMENT 2 to CRGR CHARTER JAN 1984 REVISION 1 Backaround memorandum from the Chainnan to the Executive Director for Operations dat Octa e 8, 1981, the Commission expressed concern over conflicting or incons
- t-ent dire tives and requests to reactor licensees from various components the NRC staff.
By that memorandum, the Commission outlined certain recomm ed actions to es~ blish control over the number and nature of requireme s placed by NRC on reacto~ licensees.
These included:
establishing a Co
- tee to Review Generic Requ *rements 1CRGR); establishing a new positio f Deputy Exec-utive Director for R gional Operations and Generic Requireme s (DEDROGR);
conducting a survey off nnal and informal mechanisms to unicate with reac-tor licensees; and developi g and implementing procedur, for controlling com-munications involving signifi ant requirements cover*~ one or more classes of reactors.
The following proce u es have been est. ished for controlling com-munications with reactor licensees which impose r purport to express generic requirements of NRC.
B.
Committee to Review Generic Reauirement~ (CRGR)
Except for emergency situations, t CRGR shall review all proposed new generic requirements to be imposed on o or more classes of power reactors in accord-ance with the charter of mmittee, before such oposed requirements are forwarded to the EDO and ission and imposed on, or communicated for use or uidance to, any reacto icensee.
Office develop internal procedures to assure that the fa rements regarding reactor licensees are carried out:
generic requirements (Table 1 attached) shall be submi ittals shall conform to the provisions (2)
All documents, letters and communications that establish, reflect or interpret NRC staff positions or requirements (Table II attached) shall be submitted for review by CRGR unless these documents refer only to require-ments approved prior to November 12, 1981.
In the latter case, the pre-viously approved requirement should be specifically cited and accurately stated.
Offices should be careful to review new or specific interpreta-tions to assure that they are only case-specific applications of existing requirements rather than initial applications having potential generic use.
1
JANUARY 6, 1984 REVISION 1 (3)
For all other communications with licensees (Table III, attached), no statements shall be used that might suggest new or revised generic require-ments, staff positions, guidance or recommendations (unless such statements have been approved by the EDO or the ColTlr.lission).
In d-evel opiTrg a reposed new generic -e:qui reme11 fe1"
~G~ cel1"i"ew, a'T'l--a:ffmi:r-,t may determine that it is in possession of important safety informatio
~-0. ld be made available to licensees.
It is the resporsibili that office ake immediate action to assure that such inf
,an is com-municated to tn icensees by the approoriate of
- Such actions may be taken before comp
- n of any propose CRGR reviews.
- 0.
Emeraency For those rare
~_....~ttL-~s where it is judged that an eme ncy action is needed to protect he ealth and safety of the public, no review by CRGR is neces-sa~
However, the DEDROGR, who is Chairman of the CRGR, shall be t"fied by lie office originating the action.
These emergency action requirements s 1b-e el')e-rted t Re Conm-iss:i-on.---*----------------
2
Commonwealth Edison One First National Plaza. Chicago. Illinois Address Reply to: Post Office Box 767 Chicago. Illinois 60690 June 4, 1984 Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Attention:
Docketing and Service Branch
Subject:
Commonwealth Edison Company-Comments "Revision of Backfitting Process for Power Reactors" (49 FR 16900, April 20, 1984)
Reference (a):
Generic Letter No. 84- 08, D. G. Eisenhut to OLs, Applicants, and CPS dated April 4, 1984
Dear Sir:
JUN - 7 P12 :02 The Commonwealth Edison Company has reviewed the interim measures implemented by the NRC to control backfitting of operating power reactors as contained in the subject Federal Register Notice for public comment, and as issued for information in Reference (a).
We are pleased to offer the following comments.
We are encouraged that the Commission "has concluded that existing NRC regulations on backfitting and past staff practices do not adequately identify and justify proposed new requirements", as stated in the Summary.
However, in our judgement the interim measures "to correct this deficiency" as "developed by the staff and reviewed by the Commission" are inadequate i n the one key area most capable of bringing the backfit issue under control.
our primary objection with the Chapter 0514 "NRC Program for Management of Plant-Specific Backfitting of Operating Power Reactors" and its associated Staff procedures is the NRC Staff requirement for performing a cost-benefit analysis only after the Licensee has exercised the appeal process.
We strongly disagree with such an order of events.
The interim measures only require the proponent to provide a "description" stating "how the proposal would improve plant safety" prior to imposing a backfit upon the Licensee.
In our view, a more positive approach that will ensure NRC Management accountability for backfits is to require the proponent of the backfit to perform an "up-front" cost-benefit analysis that clearly demonstrates to NRC Management the merits of the proposed backfit prior to its imposition upon the Licensee.
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- To date, the Commonwealth Edison Company experience with the "appeal process" has not yielded positive results.
Our experience suggests that future use of the subject interim measures, without an up-front cost-benefit analysis, will continue to result in plant specific backfits being imposed without cost-benefit analysis ever being performed by the NRC Staff to justify their imposition.
Because of the potential exposure and expense to the utility of maintaining a plant in a state of quandary during the lengthy appeal process, it would not be unusual for the utility to acquiesce and withdraw the appeal notwithstanding its technical merit.
This has been the case during our recent appeals.
Once the utility withdraws from the appeal process and "voluntarily" implements the backfit, no cost-benefit analysis is performed by NRC Staff, nor is NRC Management then held accountable for such action.
It is our belief that an up-front cost-benefit analysis by the proponent would provide NRC Management with the proper decision-making tool at the outset, and would obviate the need in many cases for the utility to initiate the appeal process against truly unwarranted backfits.
As stated in the Staff procedure (I&E III.8.2.i), "It is expected that this appeal procedure will be invoked infrequently... ".
We believe that a major step toward ensuring NRC Management accountability for backfits, while minimizing the need for initiating the appeal process, can be accomplished through such a change in the interim measures.
This change will ensure overt NRC Management recognition of the merits of any backfit proposal.
Secondly, we believe the appeal process as defined in the interim measures is unnecessarily cumbersome and severely restricted.
The final decision on appeal should not rest with the Director of NRR or the Director of I&E, but rather with the Executive Director for Operations (EDO) or the Commissioners as necessary.
After completion of the "first stage" of the appeal dealing at the Assistant Director/Projects Division Director level, we believe the appeal should proceed directly to the EDO level.
We do not perceive that a "second stage" appeal dealing at the Division Director/Regional Administrator level will yield results sufficiently different from those of the first stage, nor do we believe that such an interim step in the appeal process allows for optimal use of limited utility and NRC resources.
Finally, concerning the implementation of a backfit requirement, the Staff procedures state:
"The priority of the backfit requirement
... shall be incorporated into a single prioritization plan for each facility, maintained by the facility project manager, and available to the Licensee".
Although we recognize the benefits of a prioritization plan, such a plan must take utility requirements
- into account to be meaningful.
However, the commitment for development and negotiation of "Living Schedules" merging both utility requirements and NRC requirements has not yet been accomplished by most utilities.
We appreciate having been given the opportunity to comment on this matter.
R~,~~
Dennis L. Farrar Director of Nuclear Licensing EDS/rap 8706N
OOC.\\H Nu. mm Atomic Industrial Forum, Inc.
nRop1ni;:ED RULC-R - ~-?J ~70 7101 Wisconsin Avenue
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Bethesda, MD 20814-4805
( 4q pp Telephone: (301) 654-9260 DOCKETED IC.,, / ~ 9 tJ(J TWX 7108249602 ATOMIC FOR DC USNRC
- a4 ju -6 A10 :22 June 4, 1984 Mr. Samuel J. Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention:
Docketing and Service Branch
Subject:
Federal Register Notice on Revision of the Backfitting Process for Power Reactors
Dear Mr. Chilk:
The AIF Subcommittee on Backfit Requirements of the Committee on Reactor Licensing and Safety has reviewed the subject document which was noticed in the Federal Register on April 20, 1984 (FR Vol. 49, No. 78).
We appreciate this opportunity and invite your attention to the following major considerations.
Additional detailed comments are included as Attachment A.
The manual does not reference the existing backfitting regulations (10 CFR 50.109).
Since these interim procedures should complement, not supplant, an existing regulation, it should be explicitly stated that these procedures do not replace the present regulation addressing backfitting.
The interim procedures require the staff to determine costs and benefits of a proposed new requirement only after a formal appeal by a licensee objecting to a new staff proposal.
By the process in these procedures, this appeal constitutes the third overt action by a licensee in opposition to a staff action.
Thus, the process has fostered establishment of a well-entrenched staff opinion in opposition to the licensee's position before a full evaluation of the intended backfit is conducted by the staff.
Until that time, staff opinion can be based on "... a brief statement of how the proposed requirement would improve safety... (emphasis added)".
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Mr. Samuel June 4, 1984 In addition, the licensee's Systematic Assessment of Licensee Performance (SALP) review may be adversely affected by this process.
There are two line items on the SALP input sheet which may be affected.
These are:
Approach to Resolution of Technical Issues from a Safety Standpoint; and Responsiveness to NRC initiatives.
If the licensee appeals a proposed backfit which reduces the SALP score, what recourse does the licensee have?
The SALP process may discourage licensees from appealing a proposed backfit, even though the proposed change may not be technically justified.
The Commission's approved charter for the Committee to Review Generic Requirements (CRGR) emphasized that,
"... controls are-to make sure that requirements issued do, in fact, contribute effectivily and significantly to the health and safety of the public.4. (emphasis added).
The process established by the interim procedures implementing COMSECY 83-3 diminish improvements achieved in the licensing process by the CRGR charter in three wqys.
First, they promote an adversarial environment bet~een licensees and the NRC staff by requiring the licensee to force the staff, through a formal appeal, to take a hard look at the merits of a proposed new requirement.
Second, they appear to diminish the significance of individual plant backfits, vis-a-vis generic backfits, in that they demand a lesser test of effectiveness and significance (a brief description versus a cost/benefit analysis) prior to imposing the requirement unless it is vigorously and repeatedly opposed.
Third, the use pf the term "significantly" is missing from the objective stated in the procedures.
The proposed backfit procedures should determine if the backfit contributes effectively and significantly to the health and safety of the public.
Without this information, these procedures represent, without any justification, a lesser test for plant-specific backfits than that required for generic requirements as described in the Commission's approved CRGR charter.
Mr. Samuel June 4, 1984 The information forwarding these interim procedures must contain a prohibition against utilization of licensee appeals of a backfit under these procedures as an excuse for delay of staff action (e.g., issuance of a licensing amendment, an SER, etc.) or the process itself will provide sufficient leverage to force licensee agreement to unwarranted backfits.
The exceptions specified (i.e. Section 0514-046, page 16902 and elsewhere) in the NRC Manual relieves the staff from making plant-specific assessments for requirements which have been reviewed by the CRGR and approved by the Executive Director for Operations (EDO), unless .~.the EDO determines that significant plant-specific issues were not considered during the CRGR review."
There are two key concerns relative to this form of relief. First, it is unclear how a licensee could raise the point that there are significant issues which were not considered during the CRGR review, since no licensee is privy to the CRGR discussions.
This could preclude any consideration of plant specific characteristics which may make the backfit unnecessary or potentially render the plant less safe.
Second, these exceptions have the potential of removing the licensees' ability-to question the staff's interpretation or position on these generic issues which did not take into consideration plant-specific characteristics.
Further clarification is needed to specify how the issue may be raised by an individual licensee and how the EDO makes the determination outlined in the interim procedures.
The Manual may be interpreted as precluding an appeal of any backfit to the EDO or the Commission.
The manual should clearly state that it does not preclude such an appeal.
Adoption of these interim procedures should not be viewed by NRC as justification for delaying the promulgation of a final backfitting rule.
At the Commission's request, numerous reports addressing backfitting have been prepared by the NRC Regulatory Reform Task Force and the Ad Hoc Committee for Review of Nuclear Reactor Licensing Reform Proposals.
A draft backfitting rule developed by the Atomic Industrial Forum, the Edison Electric Institute, the American Nuclear Energy Council and the Nuclear Utility Backfitting and Reform Group has been
Mr. Samuel June 4, 1984 before the Commission since July, 1983.
Several proposed backfitting rules have been prepared by the Regulatory Reform Task Force.
In September, 1983, the NRC published an Advance Notice of Proposed Rulemaking soliciting public comment on various policy questions involving the development and implementation of backfitting reform.
Comments on the proposed rulemaking were submitted in late October, 1983 -- over six months ago.
Yet, despite the availability of voluminous amounts of information and numerous suggested regulatory approaches developed by the NRC Staff and industry, the Commission has yet to issue a proposed rule on backfitting.
We continue to strongly support changes to regulations as a necessary element in solution of the backfitting problem.
Consistent with our previously stated positions on this matter, we continue to believe that the interim NRC staff backfitting guidance, with the suggested changes identified in this transmittal, should also apply to plants under construction.
ME:tfm Enclosure Sincerely,
~;l~
Murray Edelman, Chairman Committee on Reactor Licensing and Safety
Item 1
2 Attachment A COMMENTS ON CHAPTER *0514 NRC PROGRAM FOR MANAGEMENT OF.. PLANT-SPECIFIC BACKFITTING OF OPERATING POWER REACTORS Paragraph 0514-02 0514-02 Comment The stated objectives of the interim backfitting procedures are to eliminate or remove* ariy unnecessiiry burdens on the.
licensee, reduce the exposure of workers to radiation and ~6riserve NRC resources.
By the Staff's own estimates in SECY-83-321, however, the cost t'o the licensee appealing a proposal backfit is approximately $100,000.
This effectively eliminates the appeal process as a viable option for all proposed backfits,
,whether warranted or unwarranted, when the
'estimated cost of the backfit is less than
$100,000.
As has been noted before when commenting on COMSECY-83-3, the cost-benefit should be perfomed before the backfit is proposed and not only wheri requested by the licensee *at the end of an expensive appe~l process.
It is stated that the "... program should
- ass~fe to the exten~ossible that requirements to be issued will in fact contribute effectively to the health and safety of the public... ".
This statement does not go far enough and is not consistent with the Commission's Policy Statement on Backfitting (FR Vol. 48, No. 189, 9/28/83 -
Policy Statement).
The Policy Statement indicates that NRC-imposed generic requirements should contribute effectively and signficantly to the health and saf~ty of.the public and that procedures governing
~l~nt-specifi~ backfitting questions should be similar to those applied by the Committee to Review Generic Requirements.
The words "and significantly" should be added to the manual chapter to recognize the intent of the Commission's Policy Statement on
~~.~.1:<-~J !!: ing.
Item Paragraph 3
0514-05
- 4 0514-042 5
0514-043
/ Comment Staff proposed requirements should include data requests.
A utility may be forced to spend significant resources proving to an IE inspector that it meets its current licensing basis after these issues are closed with NRR.
In addition, IE inspectors have their own positi6ns on how regulatory requirements should be met even after NRR has reviewed the issue and written an SER on the topic.
These positions often translate into changes at the plant involving significant manpower and monetary allocations.
These new interpretations by IE should be considered backfits.
The final decision responsiblity on "informal" appeals lies with the Director of NRR or the Director of I&E - the judgement after the appeals are exhausted is by the same offices.
Neither the EDO nor the Commissioners are involved in the final decision (see comments in the cover letter).
The section is silent on the acceptance criteria to be used by the Director, NRR or Director, I&E when reviewing the cost-benefit analysis.
To ensure that the objectives of the program are met i.e., "*** to eliminate or remove any unnecessary burdens placed on licensees.... " and to ensure consistency between NRR and I&E review of cost benefit analysis, acceptance criteria should be included in this Chapter.
The criteria selected should recognize the objective of paragraph 05l4-02 that... requirements to be i~sued..
4 contribute eff~ctively (and significantly if item 2 is incorporated) to the health and safety of the public... ".
According to the NRC estimates the cost-benefit evaluation is only a two-man week investment.
The inference of this estimate is that the appeals are a forum for the staff to leverage their position against a licensee rather than focus on the merits or demerits of the proposal.
Item 6
7 Paragraph 0514-046 General Comment Additional clarification is needed on the fnterpretati6ri ~f exemptions regarding how a lic~nsee seeks relief from a generic requirem~rit~ ba~ed on plant-specific characteristici (see comments in the cover letter).
The appropriate Office Director can impose a requirement if it is judged that public health arid safety warrants such action.
There is no discussion of recourse if later that decision is proven wrong.
There is no accountability for either the cost/benefit assessment or errors in the decision making process.
Ite.m 1
2 3
4 COMMENT ON THE PROCEDURE.FOR MANAGEMENT OF PLANT-:-SPECIFIC BACKFITTING OF OPERATING POWER REACTORS RESULTING FROM LICENSING ACTIVITIES Paragraph I
I.1 III.A.1 III.A.2 Comment For consistency with the Procedures for Maiui'genient of Plant-Specific Backfi tting from IE Activities, the following should be added to the end of.the sec6nd paragraph in the right-hand column of page 16902, "and other appr.oved documents.:"
. Additional clarification is needed on the interpretation of exemptions. regarding how a licensee seeks relief from a generic requirements based on plant-specific characteristics (see comments in the cover letter).
The word "significantly" should be added so that the sections reads, "identification and... how the requirement would significantly improve safety."_
In addition to the NRC identifying proposed backfits, this paragraph should recognize that 4-the licensee may identify a proposed
- =
requirement as a backfit.
This paragraph does not address one of the principle policy statements on backfitting (FR, Vol. 48, No. 189, 9/28/83 - Policy Statement)
!! *** controls should ensure that NRC-imposed generic requirements do in fact contribute effectively and significantly to the health_
and safety_of the public *4* (Emphasis added):
In particular, the requirement that the Staff must provide a "brief statement concerning how proposed charige in Staff positon would result in an improvement of safety" does not ensure that new requirements contribute significant!)' ____,,*
to the health and safety of the public.
Additional ju~tification for imposing proposed backfits, that demonstrate how a significant improvement in sjfety is to be achieved.by the backfit, should be incorporated into this paragraph arid the objectives should be more aligned with the Policy statement on backfitting.
Item Paragraph 5
III.C.4 6
III.C.4 Comment The section is silent on the acceptance
'criteria to be -used by die Director, NRR when reviewing the cost-benefit analysis.
To ensure that the objectives of the program are met i. e, ".... to eliminate or remove any unnecessary burdens placed on licensees... "
and to ensure consistency between NRR and I&E review of cost-benefit analysis, acceptance criteria should be included in this paragraph.
The criteria selected should recognize the objective of paragraph 0514-02 of the NRC Manual that ... requirements to be issued..* contribute effectively (and signific;antly if the recommendation in Item 2 is incorporated) to the health and safety of the public... ".
The Director of NRR is charged with the judgement on the cost/benefit analysis.
As written, his staff prepares the analysis, his senior management is involved in the appeal process and then he is placed in the position of overruling his technical staff and senior management.
This action seems highly unlikely.
The next appeal, the formal one which finally incorporates the cost benefit analysis, could p6ssibly be more than a pro-forma repeat of the previous meetings.
The appeal process should include at least the EDO.
Item 1
2_
3 4
COMMENTS ON PROCEDURE FOR MANAGEMENT OF PLANT-,-SPECIFIC BACKFITTING OF OPERATING POWER REACTORS RESULTING FROM INSPECTION AND ENFORCEMENT ACTIVITIES Paragraph I.1 II.I.A. 2 III.A.3 III.A.3 Comment The word significantly" should be added so that* the section reads "identification and.~.requirem~nts would significantly improve safety."
Additional clarification is needed.
As written, the staff's interpretation or position on a generic lE bulletin cannot be questioned by a licensee factoring in plant-specific chaiacteristics (see the comments iri the* cover letter).
In addition to the NRC identifying proposed backfits, this paragraph should recogniz~ that the licensee may identify a proposed requirement as constituting a backfit.
This paragraph does not address one of the principle policy statements on backfitting (FR Vol. 48, No. 189, 9/28/83 - Policy Statement)
.*. controls should ensure that NRC-imposed generic requirements do in fact contribute effectively and significantly to the health and safety of t~_e_ pub~ic... " (Emphasis added).
In particular, the requirement that the Staff must provide a "brief statement concerning *how proposed change in Staff positon would result in an improvement of safety" does not ensure
- th~t-ri~w i~qiiirem~rits C~?tribute significantly to the health and safety of the public.
Additional justification*for imposing proposed backfits, that demonstrate how a significant improvement in safety is to be achieved by the backfit, should be incorporated into this parairaph and-the objectives should be more aligned with the Policy statement on backfitting.
Item Paragraph 5
III.B.2.i 6
IIT.C.l.b.(ii) 7 III.C.l.b.iii 8
General l Comment This paragraph is inappropriate and only serves to instill the belief in a licensee considering filing an appeal that such an acti6ri will not b~ vi~~~d favorably.
It should be d~leted from this procedure.
For consistency with the procedures for backfits from licensing activities, the last sentence should be modified to:
"A report on the result 0 the analysis will be provided to the Director, I&E, and the licensee for comment with copies *.. " (new words underlined).
The section is silent on the acceptance criteria t6 be used by the Director, IE when reviewing the cost-benefit analysis.
To ensure that the objectives of the program are met 'i.e.; ".*. to eliminate or remove any unnecessary burdens placed on licensees... "
and to ensure consiitency between NRR and I&E review of cost-benefit analysis, acceptance criteria should be included in this paragraph.
The criteria selected should recognize the objective of paragraph 0514~02 of the NRC Manual that ... requirements to be issued... contribute effectively (and significantly if the recommendation is incorporated) to the health and safety of the public... ".
A fundamental flaw exists in the IE process.
That is,_any meaningful evaluations, justification, and assessment of the change takes place on the part of the staff only after two levels of-appeal and a third formal request by the licensee.
NUCLEAR UTILITY BACKFITTING AND REFORM GROUP DOCKETED USNRC
,84
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SUITE 700 JU - 6 AlPo *o->efEVENTEENTH STR EET, N. w.
WAS HIN GTON, D. C. 20036
(. -
T ELEPHONE (202) 857 - 9817 June 4, 1984 Mr. Samuel J. Chilk Secretary of the Commission U. S. Nuclear Regulatory Commission Washington, D. C.
20555 uucKEr Nur.wrn PR-r7'1 PROPOSED RULE
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Subj:
Interim Measures on Backfitting Set Forth in Draft NRC Manual Chapter and Staff Procedures (49 Fed. Reg. 16900)
Dear Mr. Chilk:
On April 20, 1984, the Commission published an NRC Manual Chapter and Staff procedures establishing on an interim basis a revision of the backfitting process for power reactors.
The Commission solicited public comment on the Manual Chapter and procedures and stated that along with the comments received, the experience gained in implementing the interim measures should provide information needed to consider possible revisions to the interim procedures. 1 The following comments are submitted on behalf of the Nuclear Utility Backfitting and Reform Group ("NUBARG"), which is composed of the 25 power 1
49 Fed. Reg. 16900 (1984).
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reactor licensees set forth below2 and the Edison Electric Institute.
I.
RELATIONSHIP OF INTERIM PROCEDURES TO BACKFITTING REFORM A.
The Adoption of Interim Procedures Does Not Justify Delaying Promulgation of a Final Backfitting Rule The interim procedures governing the imposition of backfits by the NRC Staff are just that -- interim procedures.
They should not be viewed as a substitute for the promulgation in final form of a revised backfitting rule.
The Commission has recognized as much.
2
.... [T]he Commission has directed the staff to implement certain interim backfitting measures governing the documentation and review of new generic and plant-specific requirements that are proposed by the NRC Staff.
In addition, the Commission is initiating a rulemaking proceeding that is intended to replace the Commission's existing backfitting Alabama Power Company; Arkansas Power & Light Company; Baltimore Gas & Electric Company; Cleveland Electric Illuminating Company; Commonwealth Edison Company; Consumers Power Company; Detroit Edison Company; Duke Power Company; Duquesne Light Company; Georgia Power &
Light Company; Houston Lighting & Power Company;..Long**
Island Lighting Company; New York Power Authori:t.y; Niagara Mohawk Power Corporation; Northeast Utilities; Northern States Power Company; Pennsylvania Power_.&-_
Light Company; Philadelphia Electric Company; Portland General Electric Company; Public Service of Indiana; Rochester Gas & Electric Corporation; Southern California Edison Company; Texas Utilities Generating Company; Toledo Edison Company; Washington Public Power Supply System.
In addition, Carolina Power & Light Company joins in submitting these comments.
3 -
regulation with measures for the long-term management of the backfitting process.3 The instant procedures are one such interim backfitting measure. 4 The adoption of these interim measures is a significant step in the right direction.
Licensees now at least have a procedural framework in which to contest what they believe are unwarranted backfits.
In addition, the procedures mark a consensus that "existing NRC regulations on backfitting and staff practices do not adequately identify and justify proposed new requirements. 115 This in itself suggests that Commission attention has finally turned from debate as to whether backfitting reform is needed to debate as to the precise scope and content of final backfitting reform.
We are pleased with this development.
Nevertheless, the adoption of these interim procedures should not be viewed by NRC as justification for delaying the promulgation of a final backfitting rule.
At the Commission's request, numerous reports addressing backfitting have been prepared by the NRC Regulatory 3
4 5
48 Fed. Reg. 44173 (1983).
49 Fed. Reg. at 16900.
4 -
Reform Task Force6 and the Ad Hoc Committee for Review of Nuclear Reactor Licensing Reform Proposals. 7 A draft backfitting rule developed jointly by NUBARG, the Atomic Industrial Forum, the Edison Electric Institute, and the American Nuclear Energy Council has been before the Commission since July, 1983.
Several proposed backfitting rules have been prepared by the Regulatory Reform Task Force.
In September, 1983, the NRC published an Advance Notice of Proposed Rulemaking soliciting public comment on various policy questions involving the development and implementation of backfitting reform.a Comments on the proposed rulemaking were submitted in late October, 1983
-- over six months ago.
Yet, despite the availability of voluminous amounts of information and numerous suggested regulatory approaches developed by the NRC Staff and industry, the Commission has yet to issue a proposed rule on backfitting.
We understand that within NRC a process is now underway in which a single "Staff" backfitting rule is being developed.
We also are aware that Commissioner 6
7 8
SECY-82-447, Draft Report of the Regulatory Reform Task Force, Part I, Chapter 3~ "Proposed Rulemaking on Backfitting," November 3, 1982.
March 22, 1983, Report of the Ad Hoc Committee for Review of Nuclear Reactor Licensing Reform Proposals at 3-9.
48 Fed. Reg. 44173, 44217 (1983).
5 -
Asselstine has decided to develop his own backfitting rule, which he hopes to circulate among the Commissioners shortly.9 We urge that the Commission move expeditiously on these draft rules.
In view of the need for prompt resolution of this matter and the amount of time already spent addressing backfitting reform, there is no justification for relying on the interim procedures as a basis for failing to act expeditiously on final backfitting reform.
B.
Adoption of the Interim Procedures Should Not Prejudice Commission Adoption of a Final Backfitting Rule The notice soliciting public comments on the interim procedures states that experience gained through the implementation of these procedures should provide information needed to consider possible revisions to the interim procedures after the comment period. 1 0 This statement could mean nothing more than what it literally says, i.e~, as the Staff implements these procedures it may discover that revisions in them are necessary so that they work more smoothly or so they better achieve their objectives.
If so, we agree that the experience gained in implementing the procedures should be taken into account.
9 10 Transcript of May 22, 1984 Commission Meeting, Discussion of Proposed Rule on Backfitting, ("Tr.) at 62-64.
49 Fed. Reg. at 16900.
6 -
However, this statement also suggests that Commission selection of a final backfitting rule could be prejudiced by implementation of the interim procedures.
This prejudice could take two forms.
First, there may be a temptation to conclude that if licensees fail to take advantage of these procedures by challenging Staff-imposed backfits, it is because there is no backfitting problem and that for this reason more permanent backfitting reform is not needed.
NUBARG would strongly disagree with this conclusion.
As explained below, the interim procedures rest on the premise that licensees must challenge backfits before the Staff is required to prepare a backfitting analysis.11 Therefore, licensees must consider the need for prompt resolution of a backfitting issue, the costs associated with challenging the backfit and the likelihood of succeeding in their challenge before invoking the interim procedures.
NUBARG believes that overall licensees will not avail themselves of the procedures for most backfits, primarily because the amount of time and energy needed to trigger preparation by the Staff of a detailed backfit analysis may be outweighed by other considerations, such as the need to promptly resolve an outstanding backfitting issue.
11 See 49 Fed. Reg. at 16902, 16903 and 16905.
7 -
Accordingly, the Commission should not conclude if the interim procedures are not invoked that the failure of licensees to do so is because there is no backfitting problem.
Rather, the procedures may not be invoked because they appear to be framed in such a manner that the Staff may impose backfits which in most cases licensess will have reasons not to challenge even though licensees may disagree with the need for such backfits.
The second way adoption of these interim procedures could prejudice the final adoption of backfitting rulemaking has to do with the form of the rule ultimately adopted.
One of the draft backfitting rules currently before the Commission was prepared by the Office of Nuclear Reactor Regulation.
It would basically codify the interim procedures.12 There may be a tendency to adopt this proposed backfitting rule because it has been in effect, because its impact may be better understood, and because it would obviate having to modify the internal procedures already in place and on which comment is being sought.
We urge the Commission to examine each proposed backfitting approach in SECY-84-17O on its own merits.
The Commission should not be influenced by the fact that 12 SECY-84-17O, Proposed Backfit Rulemaking, April 23, 1984, at 23-26.
8 -
one of these approaches has been implemented on an interim basis.
Rather, it should seek to promulgate the most effective and sound backfitting rule possible.
A.
II.
CONCEPTUAL ASPECTS OF THE INTERIM PROCEDURES The Interim Procedures Improperly Require Licensees to Object to a Proposed Backfit Before the Staff Is Required to Perform a Detailed Analysis*of*its ProposedBackfit*
Perhaps the most frustrating aspect of backfitting reform is attempting to convince certain individuals within the NRC that whenever the Staff proposes a backfit it should prepare a reasonably detailed analysis explaining, among other things, why the backfit is required, how the backfit will solve the problem identified by the Staff~ the resources needed to implement the backfit, the time frame in which the backfit is to be imposed and its relationship (if any) to other proposed or imposed backfits.
We believe that the Staff should have such a thorough understanding of a backfit before it is imposed. 13 Nevertheless, certain individuals within the NRC persist in taking the view that performing such an analysis would effectively impair the ability of the NRC 13 While the interim procedures contemplate internal management review at NRC, it is clear that such review does not encompass preparation of an in-depth backfit analysis.
See, e~g., 49 Fed. Reg. at 16903.
9 -
to impose any backfits.
As recently as May 24, 1984, the Deputy Director of NRR stated with respect to the need to perform an analysis of all plant-specific backfits, as follows:
On the backfits I think requiring analyses in all cases without the threshold of the licensee complaints or intervenes or objects, then going to the cost benefit analysis, I think it would put an inordinate burden on the Staff and detract from the safety responses. 14
- We simply do not understand the logic behind this position.
First the Commission was told that as of the end of February only twelve plant-specific backfits have been imposed since November~ 1983.1 5 We find it difficult to understand how requiring a reasonably detailed backfit analysis for some (or even all) of these will put an inordinate burden on the Staff.
Second, whenever a generic backfit is imposed by the Staff, it must provide a detailed analysis of that backfit to the Committee to Review Generic Requirements.
Such analysis is of the same scope as the analysis which we believe should be performed in the first instance whenever a plant-specific backfit is imposed.
Whether such an analysis of a backfit is performed should not hinge on 14 15 May 22 Tr. at 36-37.
Transcript of February 22, 1984, Commission Meeting, Discussion of Advance Notice of Rulemaking on Backfitting~ at 29.
10 -
whether a backfit is imposed on a generic or plant-specific basis or, if imposed on a plant-specific basis, whether a licensee chooses to object to it.
In all of these cases, the safety impact of the backfit is the same in terms of affected plants.
As the Chairman of the CRGR
- stated, Why not say up front that if we're going to go through and we're going to back.fit, by definition there's that agreement, then let the analysis be done.
I think it ought to be.
In reality, it will probably wind up screening out, which is what I think is happening today, is when you have to sit down and do a thorough analysis of what it is you want to do~ it tends to get you thinking as to.whether you really ought to do it or not as far as the process.
It forces the logical, comprehensive and systematic thinking that ought to be a part of safety and safety ought not to be a back of the arm or seat of the pants judgment.
I think it ought to be a result of a very well thought out process and that's what I think the rules, any of them, really require.
I think that's what ought to be.16 Lastly, whenever a licensee initiates a change in its plant, it must do an analysis pursuant to 10 C.F.R. § 50.59, which requires it to address the safety implications of the proposed modification.
Yet, if the Staff proposed the identical change, no such analysis is required.
Again, in terms of public health and safety, this distinction is untenable.
Public health and safety 16 May 22 Tr. at s7.
11 -
is affected in the same way regardless of whether a licensee initiates or the Staff imposes a backfit.
Accordingly, we believe that a backfitting analysis of the type contemplated in the industry rule should be performed by the Staff whenever a backfit is proposed by the Staff.
B.
The Interim Procedures Should Not Obscure the Fact that the Staff Is Not Permitted to Require Backfits in the Absence*of a Rule, *Regulation or Order The interim procedures seem to suggest that the NRC can require the imposition of backfits without first issuing rules, regulations or orders. By using such words as "staff-proposed requirements" and "formal mechanisms~ 1117 the interim procedures obscure the fact that the Staff is not permitted to "require" backfits in the absence of a rule~ regulation or order.
As a matter of law, the Staff may not imposed backfitting requirements either through the publication of guidance documents or through its application of those documents in particular cases. 18 Backfitting requirements with the force of law may only be imposed through the issuance of rules, regulations or orders. 1 9 This distinction is crucial and 17 18 19 See 49 Fed. Reg. at 19601, 19602 and 19604.
E.g. ; P-etition -for Emergency* and Remedial Action, CLI-78-6, 7 NRC 400, 406 (1978).
See 5 u.s.c. §§ 553; 556 and 557.
12 -
the apparent insensitivity of the Commission to recognize it in the past has led to unfortunate results.20 We believe that the Commission should clarify that the internal procedures apply to instances where the NRC Staff requests that a power reactor licensee modify its facility in light of a new or modified Staff position.
They should not make references to staff-imposed requirements.
This change should be made wherever the interim procedures reference the imposition of new requirements by the NRC Staff.
III. CONCLUSION NUBARG believes that the interim procedures constitute a recognition by the Commission that backfitting reform is necessary.
Further, the procedures provide at least some framework within which to assure the technical justification for a Staff-imposed backfit
- Neverthe'less, we believe that certain modifications should 20 See Union of Concerned Scientists v. Nuclear Regulatory Commi*s*sion, 711 F.2d. 370 (D.C. Cir. 1983);
Cf~ Union of* co*ncernea-- sc*ientists v. u. s. Nuclear Regulatory Commiss*io*n; No. 82-2053 (D. c. Cir. May 25; 1983).
13 -
be made in the procedures as set forth above.
More importantly, we believe that the Commission should move expeditiously to issue a final backfitting rule.
We appreciate this opportunity to Group with our views.
lds man ear Utility g and
- ULKH !'<UMBEi< PR
/o)
PROPOSED RULE
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COMMENTS BY UNION OF CONCERNED SCIENTISTS ON REVISION OF BACKFITTING PROCESS FOR POWER REACTORS, 49 Fed. Reg. 1690i4 DOCKETED I $\\JRC JUN -5 A9 :J1 The Nuclear Regulatory Commission has issued fp r... p.u,,qJ.\\ c.,
-F j
I
~'
~
comment a set of "procedures" for carrying out back 1f itt ~ing *-.
i**
decisions.
49 Fed. Reg. 16900 (April 20, 1984).
While the Union of Concerned Scientists finds the "objectives" of the procedures as outlined in§ 0514-02 of the Draft Manual Chapter to be generally unobjectionable, we find that the procedures themselves are faulty in a number of important respects.
Although cast as "procedures" which are theoretically nonsubstantive, a number of the measures make substantive changes to NRC practice.
The substantive changes include two illegal measures:
the use of cost-benefit analysis in making backfit decisions, and placing the burden of justifying immediate imposition of backfit decisions on the NRC.
Equally disturbing, the procedures completely exclude the public from the backfit decisionmaking process.
In addition, the procedures suffer from a fundamental lack of substantive context and clarity, making their intent and effect unclear.
They should either be rescinded or substantially modified.
Introduction The Union of Concerned Scientists ("UCS") submitted a detailed analysis of backfitting issues in response to the Commission's Advance Notice of Proposed Rulemaking.
Since the A know I edged J,y card.. fl/~~
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REGU 1 A TORY COMMI SSIOhl DOC"ET:~ 'S r, Sf.,,.,: ":E SECT ION O~r1rr C:r TH~ :r.rr.r.T:'-~Y c~ T.: c:,1;.: *,.. :oN C
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- proposed procedures appear to have ignored UCS' analysis, we attach a copy to this filing, and we incorporate it by reference here.
[Comments of the Union of Concerned Scientists on Proposed Revision of the Backfitting Process for Power Reactors, ANPR 48 Fed. Reg. 44217 (October 28, 1983)]
The Commission states that its purpose in promulgating these procedures is to improve on NRC regulations and practice that "do not adequately identify and justify proposed new requirements."
49 Fed. Reg. at 16900.
Yet, as UCS pointed out in its previous comments, the Commission has never identified a case in which a backfit was unjustified.
Nor has the Commission explained why licensees' clearly defined opportunities to contest backfit decisions under 10 C.F.R. § 50.109 do not adequately protect licensees against unnecessary safety modifications.
The Commission appears to have capitulated to industry pressure for weakening of its backfit rules by saddling itself with a series of handicaps that unnecessarily and unjustifiably hamper compliance with existing NRC safety regulations.
One of UCS' fundamental points in its previous filing was that the Commission must distinguish between "backfits" that are required as a result of strengthening safety regulations, which UCS termed "New Rule Backfits," and those that are necessary to bring a reactor into compliance with existing
,f' regulations, which UCS termed "Catch-up backfits."
As far as we can tell, the Commission's new procedures do not extend to
- New Rule Backfits.
According to Section 0514-05, as well as the introductory section of each procedure, the process is limited to interpretations or positions.
Thus, the process apparently would not apply to NRC consideration of any new rules, such as the ECCS requirements or the hydrogen control rule, that would strengthen the safety standards set by NRC regulations. 1 We urge the Commission to make this point more clearly so that there will be no possible question that these procedures do not apply to consideration of new safety regulations. 2 Accordingly, this process applies logically only to Catch-Up Backfits, i.e. those changes that are necessary to 1
This conclusion is confused by the fact that the cost-benefit analysis provisions of the process require consideration of whether a new "requirement implements existing regulations or goes beyond them."
Since the process as a whole does not appear to go beyond existing regulations, this point should be irrelevant.
The fact that the point has been included confuses the scope of the procedures.
2 The Commission should also clarify two other confusing points.
First, the procedures divide backfit decisions into two categories:
those relating to "licensing activities," and those "resulting from inspection and enforcement activities."
The content of the procedures appears to be virtually identical.
The distinction between these two categories is utterly baffling, and should be explained.
Second, section 043, entitled "Cost-benefit analysis,"
needs clarification.
A number of the factors to be considered in the cost-benefit analysis do not have any apparent relationship to costs and benefits of a backfit.
In fact, the entire listing of considerations under paragraph "e" of§ 043
-- including implementation dates and recordkeeping requirements -- is so irrelevant that we believe it has been misplaced there.
- assure compliance with existing NRC regulations.
That fact governs the analysis of these procedures.
Fundamentally, since the plant modifications at issue here are necessary to meet existing safety requirements, there is no justification for any delay in their implementation once they are known to be needed.
A.
The process illegally relies upon cost-benefit analysis.
- 1.
The use of cost-benefit analysis is illegal.
The procedures call for the use of cost-benefit analysis after the "informal appeal" process has failed and the licensee protests a backfit determination.
At that point, the NRC staff is directed to perform a cost-benefit analysis, taking into account a broad array of factors.
The Director of Nuclear Reactor Regulation or Inspection and Enforcement is to review the results of the cost/benefit analysis, the licensees comments on the cost-benefit analysis, and all other information developed during the appeal process and reach a conclusion on the matter.
49 Fed. Reg. 16904, 16906.
The net effect of this provision is to make cost-benefit analysis a routine part of NRC decisions on whether to require safety modifications for nuclear power plants.
The procedures give licensees little incentive to agree to the measures initially proposed by the NRC staff, or even to make concessions in negotiating a compromise.
- Rather, they encourage licensees to appeal the staff's recommendation and obtain a cost-benefit analysis, which is likely to delay the implementation of the safety measure, and may pressure the staff to weaken its stance regarding the proposal.
- The use of cost-benefit analyses to make this important safety determination is illegal.
As UCS discussed at length in its attached comments on the 1983 proposed backfit rulemaking, cost-benefit analysis "plays no part in the enforcement of the safety standards laid down by the Atomic Energy Act."
Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-623, 12 NRC 670 (1980)
The Atomic Energy Act contains no language that would permit use of cost-benefit analysis in making regulatory decisions; nor does the legislative history of the Act.
Absent clear indication on the face of the statute incorporating cost-benefit analysis, it may not be employed.
See American Textile Manufacturers Institute Inc. v. Donovan, 452 U.S. 490 (1981).
For this reason, the cost-benefit provisions of the backfit procedure must be deleted. 3 For the same reason, the procedures' objective of yielding "a balance between economic and potential safety consequences of backfit decisions," as stated in§ III, 49 Fed. Reg. 16903, is impermissible under the Atomic Energy Act.
3 We note that the Commission has implemented the cost-benefit provisions proposed in the Advance Notice of Proposed Rulemaking without responding to UCS' comments on the issue.
To the extend that the Commission considers the procedures to be in effect toda¥, that action is illegal.
Similarly, any eventual Commission action that incorporates the cost-benefit analysis requirement but does not respond to UCS' comments would violate the Administrative Procedure Act.
- 2.
Probabilistic Risk Assessment must not be considered.
The Commission's cost-benefit analysis procedures require the Staff to perform a "risk reduction assessment" as part of the informal appeal process.
Although what the Commission seeks to accomplish here is not entirely clear, this appears to involve the use of probabilistic risk assessment in judging the appropriateness of particular backfits.
As UCS commented in response to the advance notice of proposed rulemaking, probabilistic risk assessment is an immature and unreliable technique that can be easily abused to justify a predetermined result.
As ACRS members Myer Bender and Jeremiah J. Ray advised the Commission in 1982, The claims for PRA concerning its ability to assess public safety risk are little more than a sham that will hide the fact that the basis for safety will always depend on the judgment of a few individuals.
ACRS Report on the Draft Action Plan for Implementing the Commission's Proposed Safety Goals for Nuclear Power Plants, September 15, 1982, Additional Comments by Members Myer Bender and Jeremiah J. Ray, at 7.
[See also attached ucs comments on Advance Notice of Proposed Rulemaking, incorporated by reference into these comments.]
Moreover, even if PRA were a viable methodology, placing this burden on the staff would create an intolerable burden that would virtually prevent the staff from requiring even those backfits that are essential to comply with existing regulations.
For these reasons, the Commission this requirement from the procedures.
should also shift all such analytical staff to the licensees.
should eliminate The Commission burdens from the B.
The process illegally shifts the burden from the licensee to the staff.
The procedures call for "prioritization" of backfits and place a heavy burden on the staff to justify any decisions to immediately impose safety modifications rather than to wait for
- the termination of the informal appeal process.
This approach turns the concept of safety regulation on its head and illegally shifts the burden of proof from the licensee to the NRC.
There is no question that any organization must establish priorities for its work, particularly where it is devoting limited resources to protecting the public health and safety.
It is essential, however, to distinguish between those situations where "prioritization" is acceptable, and those where it is not.
The staff addresses a vast array of issues, some of which are more important to safety than others.
The staff may certainly establish priorities for its analysis of those various issues, and the staff will thus determine whether backfits are necessary in some areas before it reaches those conclusions for other areas.
The question at issue here, however, is what action must be taken after the staff determines that a change in a plant's safety features is necessary in order to comply with Commission safety requirements.
The staff has already completed the analysis necessary to make that determination; in effect, it has carried its initial burden of proof.
Once the NRC has satisfied that burden, logic dictates that the change should be implemented immediately.
The only justification for failing to implement a safety measure immediately is a showing that the licensee has provided
r***---*--- -----
- an equivalent level of safety in some other way pending completion of the change.
It must be the licensee's burden to show that a plant can operate safely until the change can be implemented.
Where licensees oppose immediate imposition of a safety modification, they should be required to demonstrate that the plant can be safely operated pending its implementation.
such "justifications for continued operation" or "JCOs" were required, for example, to excuse noncompliance with the environmental qualification rule.
See proposed rule on environmental qualification, 47 Fed. Reg. 2876 (January 20, 1982).
The JCOs should conform to specific criteria along the lines of the criteria developed by NRC for JCOs justifying continued operation pending completion of environmental qualification.
(See proposed rul e, 10 C.F.R. § 50.49(j).)
C.
The process excludes the public.
The procedures provide for a series of informal meetings between NRC staff and licensees to resolve disputes about backfits.
The procedures do not provide for any participation by members of the public.
Not only is the public excluded from the informal meetings, but the procedures do not even provide for notice of final determinations or agreements on backfits or an opportunity to request a hearing.
Yet, the decisions that are made in these meetings will affect the health and safety of every member of the public living within the vicinity of the plant in question.
These procedures effectively grant reactor licensees two
- opportunities for hearings (plus an appeal of the first hearing), while excluding the public from the first round.
Where the Commission staff has determined that a change is necessary, the licensee is entitled to both a thorough justification from the staff, as well as an informal appeal to a higher level of management.
There is no requirement to notify members of the public of any of these developments, and the public has no right to participate at any point, not even in the appeal.
If the licensee does not prevail during its first round of hearings, it then has the right to contest the staff's action in a formal adjudicatory hearing.
At this point, the public may participate.
Since most of the dealings between the staff and licensees are at the informal level, there are very few situations in which the public can be heard.
The establishment of this informal pre-adjudicatory hearing procedure serves to reduce the public's involvement still further.
Moreover, the procedures do not provide for the publication of transcripts or minutes of the meetings, thus preventing the public even from learning about the process by which decisions are reached.
The procedures appear to constitute an attempt to make an end run around the Atomic Energy Act's requirement that the Commission provide a hearing to any member of the public whose interest may be affected by the amendment of a license.
42 U.S.C. § 2239(a)(l).
If the licensee agrees to a plant
- modification, then the change need never be incorporated into the operating license via a formal order, and no hearing need be granted.
The NRC cannot circumvent the requirements of the Atomic Energy Act so easily.
In the operating license proceeding for a plant, the NRC approves the safety features of the plant as conforming to NRC regulations.
Any later changes to those safety features that the NRC orders constitute amendments to the operating license.
Under§ 189(a) of the Act, 42 u.s.c. § 2239(a)(l), the public is entitled to a hearing on those changes.
The NRC cannot avoid the Act's mandate of public participation merely by characterizing its regulatory business as "informal."
UCS urges the Commission to revise its procedure as follows in order to protect the public's right to participate:
- 1.
When the staff determines that a plant modification is needed to comply with existing Commission regulations, it should inform the licensee and require immediate compliance.
- 2.
If the licensee agrees, it should comply immediately or shut down the reactor pending compliance.
- 3.
If the licensee agrees but wishes to keep the reactor in operation, it must submit a detailed justification for continued operation demonstrating that the reactor can be operated safely pending compliance.
The JCO should be judged on the basis of criteria developed to provide a basis for
- determining equivalent protection.
- 4.
If the licensee disagrees and refuses either to implement the backfit or to submit a JCO, the proposed modification should be published in the Federal Register, with notice of an opportunity to request a hearing on the backfit.
This can be the informal sort of appeal envisioned in the process as published, or it can be a formal adjudicatory hearing.
If the first hearing is informal, all parties would then have a right to a full adjudicatory hearing if they disagreed with the outcome.
Any meetings between the staff and the licensee should be open to the public, and the public should have access to all correspondence between staff and licensee.
June 4, 1984 Respectfully submitted, 7J~~
Diane Curran r:!~f [r:r~JiL/bc
~
~- {,(;i!s~ /o c Ellyn R. Weiss HARMON, WEISS AND JORDAN 2001 S Street, N.W.
Suite 43 0 Washington, D.C.
20009 (202) 328-3500
j
/
I.,
COMMENTS Of TII E UNIO ~J or COtJCERNED SCIEtJTISTS ON PROPOSED REVI S I ON OF 1'111*: BACKF ITTitJG PR OC ES S FOR POWE R R~ACTORS, ANPR 4 0 Ped. Reg. 442 17 The Nuc l ear Regu l ato r y Commi s s i o n has i s s ue o an Adv a nc e No r. i ce of Propo~;ecl Ru l ern:i kin,J r c)1p1c:..;t-i n*J c o rnrn<.~nt-. on "a numbe r o f broad pol i cy qu es t i c ns " be[ore i t es tabli;;hes " r equ ir e me nts fo r t h e lon g- ~.l:'~ rm 111.:-rnay e mL'n t or i t ~ pruc c:.; :-_; [o r th e i mpos i t i on of new r egulatory r equ ir eme nts fo r powe r r e a ctors," common ly r efer r ed to a s "ba c kfitt in g."
The Un ion of Co nc e rn ed Scit:.nt i sts apµrec i at e s U,e Co mm i s s ion ' s de ci [.; i on t-.o ad dr ess I
this co mp l e x i ss ue i n i t i al l y in a n Advdnce Not ic e o f Proposed Rulemaking r athe r tha n th rough a pr opo s ed r u l e.
As d iscu s s e d below, the alleged "backf i tt-.i ng " pr oblem ha s n e ve r been adeq uat e l y def i ned, ne i the r the i ndustr y nor t he Co1;-imi. ss i on has p r ov i ded factua l suppo r t ( o r th e ex i stenc e of a "bac kf i.tting" prob l e m, a nd t he a naly3es to t.la:-e hav e f ail ed t o d i s tin gui sh among t he va r io us c ir c ums t a nces in wt1 i ch the pr obl em all e gedly a ri ses, o r t o p r o v ide a s ou nd a nalys i s t hat would al l ow the Commiss i on to deve l op a ma na<Je me nt s cheme that bot h a s s ur es protect...i o n of t-.he public hea l 1-.h and ::;afety and meets i ndust r y neeJ s f o r c e r ta i nty.1110 ef fi c i e ncy.
Although t-. he Co1nmi !Jsi o n ' :.~,\\ dv an cr:~ Not i ce r efer:., to e s tab l i sh i n g a " p r o c e s s f ')[ t. h e i mp c:., i ti o n o f n e \\ r e g u l a t o r y r equ ir eme nt s f o r powe r r ea cto r s," i t J ocs not de f i ne th i s te r m.
. r-I t i s c 1 ea r f r om t-. he q u e s t-i o n :.; r.1 i s e <.l l.l y t-. h e Comm i :3 s i on an d from the h1 story of t-.he "backfi t.t-i n(J" cJ i sput-.e, however, that the pr ob 1 em th a t t he n u c l ea r i n d u :, t-r y, u n d t 11 u s t h e Corn m i s s i on,
seeks to addre s s is no t 1 i mi t-ed to the dev e lopment-. of new regulatory requireme nt :.;.
characterized ;:i :3 ex te ndin (J t. o ctn y a U e1;1p t- :; to require re.1ctor licensees to ma ke ch,:rnge s in tl ieir p.li.rnt, equipment, personnel,
or other aspects of their optr a ti ons be yond what was r equired at the t.jme u,*e construction permi t wa.s issued.
Th e issue~ raised by this effor t ar e extremely complex.
They v.:iry not only according to t.hc t.ype of chang e that the Comm i sssion mi ght. seek to impo s e, but accordi ng to the licensing status of p3rticuldr reactors, the extent of review that has been performed by tlie St aff, and the de gree of particularity wit h wl,ich requirement s ha ve been incorporated 1n Commission rcguL1tions.
It i s e s senti a l, therefore, that the Commission recognize that-it ca nnot establish a s i ngle rule to add r es s a 11 o f t he c i r c um st an c t~ }3 at. i s sue.
Rather, it must examine each a lleged problem on it s particular merits an Jeve l op an approach that is suited to that problem.
The questions posed in the Commi s.s iun ' :~ i\\dvance Notice indicate that the Commi s si on m.:1y alrec1dy hav e recognized the need to take this careful approach.
i\\ mc1j o r purpose of UCS' comment s is to delineate the various types of alleged problems that the indust r y and others are attempting to address, to e stab l ish the
-J-principl es th.-1 ~ gov Prn Cu m1a i :_;s i n n act-i o n in each ca.se, and t o p r op o s e a s o l u t_i o n t. h.:it. w i l l m <' c t-_ t h c 1 c <J i t i ma t. e n cc cl~, o f a 11 concerned.
I.
Ge ne r a l Pr i nc i pl e s A.
Und e r t. he At om i c Encr g :1 !\\ ct-,
t.h e Comm i ss ion Mu s t Iss ue, l\\nd Tlle I ndust r y Mu s t Me e t, Su c h St and a rds As Ar e tl c c es'.;a ry T o Pr ot-.t.. ~ct. t h e Publi c !le a 1th And Saf e ty.
The fund a me nt.:i l principle that governs t he Commission's approach to this and all 0 t.h e r r egulatory is s ues is its responsibili t y to pr ot.ect t.he public he alth.:.ind safety.
theme pervades the Atomic Energy Act, and it appear s That particularly in the provisions authorizing the Commission to issue standards and to licen s e nuclear reactors.
Under Section lGl(b), 42 U.S.C. § 22 01( h ), t.h e Commi s s i o n i s authorized to issue s uc h sta nda r ds "as the Co mm is i on ma y dee m ne ces sary or de s irable
. t o protect t he pu blic heal th or to minimize danger to life o r prope r ty."
Under Sec t ion lOJ(b), the Commi s sion may ri ot i ss ue a r eacto r li ce nse unl ess th e applic a nt is "e quippe d to o bs e rv e a nd
. a gr ee [ s ] to obse rv e s uch sa f ety _s tan da rJs to pr oh'ct-. h e.:i l t.h a nd t-_o min j mi ze da nger t o U.S. C.
§ 2133( b ).
l\\nd tlihkr S1'ct i o n lOJ(cJ), the Commi ss ion may no t issue a li ce ns e if to do so "w o ul d be ini mjca l... to t he hea lth and s afet y o f th e p ub li c.ft 42 U.S. C.
§ 2133(d).
Jt Thes e are t \\ie principll' !:., on \\vhich :-.he Commjss i on ' s a nal ys is o f t h e b a c k f i :- t i n g i s s l l e m u s t. b e b a ~, e d.
If the Comm i ss ion has determined th.::1:-. a part i c u.l ur ~;La ndu rd must be establ i r-;hed in order to protect th e µul..Jl i c hc.:1H.h and i,afety, that-. sta ndard must be met.
The stat.ute lcav~s no r oom for permit t ing anythin9 le:.; :..:; U1.Jn the d egr ee t)f safety protection requ ir ed by Commi ss i on sta ndards.
- l.
Cost-Ben e fit Balancing Is Prohibited As described by the Advance No t ice, the proposal of the At om ic Indus t rial Forum would permi t reactor licen sees to avoid meet ing new safety requirements or making other impr ovements necessary to meet Comm is s ion standards if t he improvement nis
[ not] justif ied when considered over t he remaining life of the facility."
In other wo rd s, AIF wo uld have the Co mmi s sion c ons ider whet he r tl1e costs of meeti ng ~afety sta ndards ou t weigh t.he benefit s of e nha nc e d pr otec ti on o f the public healt h and safety.
As the Commi ss i on case law has l o ng a nd consistently he ld, the At omi c Energy Act. ckH.-'S not allow such a cost-benefit a nal ys i s :
[I)n the safety sphere the e valuation of t he ris ks atte nd~nt to r eactor operation i s not underta ken as a n ele1:1e n t of NEPA-type* process b y which costs may be t r ad e d o f f a g a i n s t lw n e f i t-. s.
Rat he r, t he fun c t i on o f
- t. h e l" v -J 1 u at i on i s t. o,.1 s c e r t. a i n w h e t he r t he u 1 t i mate,
uncond i t i onal sta nd a r ds o f the Atomic Energy Act and the regul at ion s have ueen rnPt ; e. g. wh et he r t he public health and safety will be adeq uately protected.
f
'I I
Ma in 1..~
Yankl"'<='
i.> n iv t r C,)l~ '..:'....!..1.L (.'-1.-iin*
- Y<1nkt *1*
1\\t.*1mic i_)ow1.:r St cd*. i un),
ALAB-161,
6,\\ l*:C 100 3, LUU! ( l'l / 3).
l As *,;e had occa ::-, i n n t-o :;tr <.' :., ::; rn;rny ycac;.:.i~o, t h e cost / b0ncfit-h.:1\\.111': in <J pr o cc!; ::.:.1t t* he roor. of deci :; i o n s in t-.lH! (.~nrorc<' li1c n t. uL r.li c fJ0.tional Enviror;11.::1~..::il Poliq, l\\ '-* :* ri Lr;:; no part in the cnf0rc1.:1;1ent ot t-111.: :-;.:if '-,: y :;~,-1i1durd !,; lc1id <J o*,;n by the A r_ o rn i E 11 e r lJ y !\\,.:: t-.
- Public Servic 0 Comp.-::rny ot Nc-w
~1.. 11:1p~:hir l' ( ~c.:1brook St;:ition,
Uni t "' l and 2) i\\L/\\ o -G:23, L : rrnc 670 ( 1<)80).
The co st or dift:icult-.y us~;oc i ated with implementing acti o n needed to ensur e.safety are no t relevant considerations to th i s age n c y.
CornmonweaH.h Ed i so n Compa ny ( Byron St ation, Units l
~rnd 2 )
DD-81*-S,
13 NH.C 72 8 (1981).
These in tt°!r pr etation s of r.h e At.omi c Energy Act are consistent wirh and required by applicable case law arising under other statutes.
Al t ho u 'J h th e p il r t i cu l a r d e c i s i on d e pends up o n the lang u ag e of the ~tatute in queHtion, t l1 e Supreme co urr. ' s decision in /\\moric,111 'T'l'Xt-il<"> M,11111 f,1c t-ur e r r; I ns t i t-.ute Inc. v. Donov.:in, 452 U. S. 490 (1981) is inst ructiv e here.
The text ile indu st ry challcn<Jt~d i.1 cor.t crn du st-. st andard promulgated by t he O cc up a t i u n a l s c.1 £ 0 t y a n d II e a U-. ll /\\um i n i ::; t r ;:i t i on o n t 11 e ground that :-. he heu lt.h benL~fi~:; 0 [ the :;r.~1ndard did no t s uffici--en tly o u t,Jei<Jht th e co~;t:; of i t'.; implernent-.ation.
The c r u x o f t h e a r g u m e n t-w c.1 s
- .; t. a t-. u r. o r y J a n q u a CJ e t h u t a u t h o r i z e d l
In Ma i n e Ya n k e e, the l\\ pp L~....ll no a rd r e j cc t c~ d an a r gum en t that cos;-_-benef i t concepts shou ld be employed to evaluate the acceptability of residual ri sk wl1 cre the reactor othe r wise complied with Commission st andard s, an argument that might well have resulted in more st ri ngen t,,tandards fo r the pa rticular reactor.
It would thu s be t lw li e i ght of hyprocr i sy to all ow cost-benefit concepts to be used to allow somethi n CJ less than full compliance wir.h Commi s sion ~,ufety sta ndurd s.
Either th e Act a 11 O\\v s the i r u s e for e i th e r pt 1 r pos e, o r i t do es not a 11 ow the m at all.
The la tter ha s been the Comm i s sion ' s co nsi stent i nterpretati (W-
- OSHA t.o establish c.1 st..1 nda rd "whi ch mo:;t adequately ass ures, to the e x t e n t f ea s i b l e, " t h at. t h e r e w o u.l d b c n o ma t e r i a l impa irment of the health of affected employees.
The Court refused t o r ea d the wo rd " feus i ble" a:; incorporating a cost-benefit balanci ng r equirement, ho ldin g instead that t he ques t ion wu s whethe r j t w<-1s t-. 1c:chnolo(]ica l ly and economicall y possible to i mplement t he sLrndu r d.
In th e Court' s view, Congress had a lr eady made the cost-be nefit decision when i t decided that workers woul d be pr otected if it was poss ibl e to do so.
In addit ion, in l anguage directly applicable he r e, the Court held that When Co ngre ss ha s intended that an ag ency e ngage in cost-benefit analysis, it has clearly ind i c ated s uc h intent on the face of the statute.
Id. at Ac cord, Lead Industries Association, I nc. v.
En v i r on men ta 1 Pr o t e ct i on l', CJ en l.:.Y_, 6 4 7 F. 2 d 113 0, 114 8, 115 0 (D. C. Cir.), cert. denied, U.S.
, 101 S. Ct. 621 (1980).
The is s ue presented by the Atomic Energy Act i s far simpler than that addressed by t.he Sup reme Court.
The Act requires the Commission to.::i.ssure pr otec~.io n of t he publ i c heulth and safety.
It co nt.ains no refc.,re nce to fc,as i bility or to any other co ncept tll.1 t rni9llt ~3Uftt.!n !.ll.-,r lllcHHL1 t.e.
In p.::i r t icul ar,
i t co ntains no refe rence to any sort of cost-benefit balanc in g.
Mot eove r, as the 1,ppeal Boa rd has recognized, the l eg islative hi sto ry co ntair1s n o indic~t i on that the Comm i ssion may undertake any such balanc i n<].
Mai ne Yankee Power Company,
6 A. E. C. at 1006-07.
Thus, t he Commi ss i on has no author i ty to permit r eacto r li censees to avoid meet ing Comm is s ion sa fe ty
- s t a ndar ds on ~-h~ gr ou nd of co:.; t.
E itl 1l'f t he reacto rs must pr ovid e the protect i on::; requ ire d by the :.;tc1 ndc1 rd s, or they may no t be op e r a t e d.
2
- Re l i a n c e Upon Pr ob.-1 b i 1 i s t. i c R i s k Ass e s s men t Is In val i d I n ad d i t i o n t o r a i s i n g t he i :; [; u e o f co s t. -be n e f i t b a 1 an c i n g,
t he indu s try proposa l woul d implici t l y r equ ir e.:ill "back f its "
t o be j ust ifi ed on t he bas i s o f a q ua nt i t at ive proba b i li st ic ri s k a ssessment ( PHA ).
Tli P:-,e al leged in d icat i ons o f ove r a ll ri s k would be c oup l e d wi th l:ost pr oject i ons t o c r eate a se e mi ngl y pr e c i se bas i s f o r dete rminin g t hat a ba ckf it sho uld not be r eq u i r e d.
AIF ' s pr oposed req u ir ement t he the NRC "jus tify" each back fi t b y consi dering the r e ma ining life of t he facility en s hr in es PRA, be c a use t he necessa r y a na lysi s i s pr esumably based on the d ub i ous a ss umpt-i on t ha t t he pr obabilit y of an acc id e nt is l ess whe n t he r e,.iaining p lant-. life i s s horte r.
It would also have t he e f fect of ado pting a l ower standa rd of sa f e t y fo r t he o lde ~, t pl ants - - pr ec i s e ly t hos e most i n nee d of upgrading.
Th e f a c t i s t hat-. t hese c ompl ex compu te r a na l yses, which a re b a s e d o n t_ ho u :, a n d s o f
.::1 r b i t u n y a n d u n v e r i f i ab 1 e ass ump t i on s,
c a n be d eli berate l y i.l b ut, ec.l to r e.::1c h c1 pred e te r min ed r es ult-..
PRA ' s a re al l s ubjec t t o ove r nl l 11nc e rt a i.nti e s o f s uch e no r mous magn i t ud e that th e y do no t fur ni s h a so und, i ndepende nt b as i s f or deci s i on-mQk in g.
I ns t eaJ, t hey prov i de t he i l lu s ion of pr eci s i on.
And, beca use o f t he i r g r eat comp l e xi t y a nd cost,
PRA ' s ar e t otal l y in ac c e s s i bl e to t.he pub li c.
1 I '
I '
- These poin ts have been maJe so m~ny time~ by tec hnical experts, including t-_hose on the Advisory Cornmi ttee 011 Reactor Safeguards, that one can only conclude that AIF' 3 willingness to rely on PRA as the determinin0 factor in backfitti ng decision s i s a delilJer.1tc M.t.empt to µr c ven:. any more backfitting.
In Sept.ember, 1982, ACHS memher.s Mye r Bend e r and Jeremiah J. Ray (the current Chairmc1n), advised the NRC:
There is no way in which the current proposed safety goal policy will serve any uaeful publi.c safety purpose as long as its main assessment basis is PRA.
It is very likely to distort the significance of impor ta nt public safety matters, and it has al r eady diverted the attention of knowledgeable personnel on the NRC Staff from important physical plant problems to studies of issu es being analyzed on the basis of a vacuum of statistical data.
ACRS Report on the Draft Action Plan for Implementing the Commission's Proposed Safety Goals for Nuclear Power Plants, Sept.. 15, 198 2, Addition,1 1 Comlilents by MemlJer.s Myer Bender and Jeremiah J. Ray, p. 3.
Id. at 5.
Id. at 6.
The us e of PRA for r ~~gulatory purposes i s defensible if event sequence s and rela t0d probabilities are well understood and the cons eque nces to public welfare can IJ e c l ea r 1 y de f i n c d.
Th c PR l\\ m ct hod o 1 o q y n <Yi.' i n u s e d o e ::; n o t m c e t
- t. h c.* s l' c () n d i t. i on !~ *
. PRA s tuuie0 a:; c11rrcnt ly performed,vill remain inscru t.:ible c:rnu *,.ill, <1t l ea~~t [or the next decade, be little more than~ display of logical thought based on esse ntially arbitraly reliability ass umptions.
The claims for PRA concerning its abilitv to assess public safety risk are little more than a sham that will hide the fact that the basis for safety will always depend up on the judgment of a few individuals.
Id at 7 (emphasis added).
- Because, a s Be nder and Ray point out, as an indicator of overall safety PRAs are l ar<dc>ly.:1 sham, backfit. decisions cannot be based in whol e or in pa rt on PRAs.
Ultimately, tile dct0 rminati on of what st.andard~ mu s t be met i n orde r to pr o v i d e a r c,1 ~~ ci 11 c1 bl e
.:i :3 :; u r,rn c e t. hat the pub.li c hea l th and saf t.'!".y will b e protected c o mes down to t he reasoned profess i an a l ju J g1;1e nt. of !".he r es ponsible offici a l.
PRAs s erve only to obscure t hat fac t a nd to crea te an au ra of false assura nc e.
They mu st be rejected as ba~.;es for de te rmining whe t her NRC safet y r equirelilents hav e been met.
B.
A Backfit Provisi on May No t Be Used To Subvert The Requirements Of The Administrative Procedure Act.
The Commission may establish governing standards and reach decisions in one of two wa ys, through rulemaking or adjudication.
State of Minnesota v. Nuc l ear Regulatory Commission, 60 2 F.2d 412 (D.C. Cir. 1979).
- .rhe Commission exercises it s rulernaking autho rity to establish nu clea r reactor safety st andard s, and licensees may avoid those ~~tanda rds only by obtaining a waiver under 10 C.F.R. § 2.758.
such a waiver r e q u es t_ i s s u b j t2 c t
- r.,) p uh 1 i c :.,; c r u t i n y i n a n J. d ju d i ca to r y proceeding and th us meets the r e<J ui r cments o f the Adm inistra t iv e Pr ocedur e Act-.
Any backfi t rul e mu st s imil a rly meet this requ irement.
If the Commission es t ab li s hes a szi f ety sL:rnda rd, a licensee may a v o i d i t o n l y u y o I) t-..1 i n i n <J d
- ; p c c i [ i c e :< em p L i on i n t-. he n e w r u 1 e itself, or seek ing one und e r
§ 2. 7S8 or some s ir;ii lar public proceeding.
I t
- II.
The Pro b l Pm A.
Gen e rul -
Th e Need for Cl e ur Dt>[inition and Di s tinc t i.on The Comrni ~,s ion has not defined th e pr ob lem tha t it.seeks to address other thun to r e f e r tot. he i mpu:.; i tion of new re9ulatory requiremen ts for power reactors, whi le the industry hopes to obtain a rul e that will govern, and pr esu mably limit, any changes that n:ight be sought in plunt, equipment, personnel, or other aspects o f operation after the c ons truction permit has been issued.
These are ve ry vague concepts t hat require r e f e rence to f 3cts in ord er to Jete rmi ne ju:,t what, if anything, needs to be done to i mprove the regulation of nuclear power while pr ot ecting the publ i c health and safety.
There is nu dou bt that the Commi s sion hu:.; req u ir ed r eactor 1 i c ens e es t. o 1a c1 k e a n 11 m Li 1..~ r o f c Ii an g es i n t he i r pl a nt s a nd operations for vari ous reason s over th e years.
Pr ominen t e x amp 1 e s i n c 1 u d *?.
- up gr ad i n 13 r c L1 u i r e d i.1 :0; a r c ;_;u l t o f t he 1 es s ons l earned from the accide nt
,.it 'l'hr e e Mile I s L:rnd, extens ive improvements rclJUired to mee t the envi ronmental qu a lificati on requiremen ts long embodied in General Design Crite rion 4, and upgraded hydr oge n protection that will eventually be required as a result of the TMI accid e nt.
The fir s t two of these and the overwh elming maj orit y of other changes that have been required are not a result of applying new re~ulation s, bu t ari s e from the d i scovery, too of ten ~ftcr re acto r operation was approved, that the plant does not, in fact, mee t t he regulations that it s upposedly 1.ict at-_ t he time it wa:, lic e nsed.
.. Most of NHC's rules are very vague.
Many consist of little more than plat-. itudes: tl1ot1 :,halt be protected a9ain!,t fires, thou shalt have a reliable system for decay heat r emoval.
There is of t en very little pre-opPrat.ional review of the manner in which the rules \\.;ill bl' uwt.
Li ce 11 :*_;ees 1 commitments are accepteJ as a basis for li cen ~ing.
I. d t <! r, a [ t er an i n c i dent at some plant, or through thv rc' ~3 ults of r e ~,ec1rch, the l-lRC may learn that one or many pl ants are not-. a dequ a tely protecteu agaj_nst a certain hazard.
Changes mu s t th e n be made in order to meet the minimum requirement of the existing regulations.
This is not, to use the Commission's language, "impos ition of new regulatory requiremen~s;"
it is necessary to comply with the applicable rules that the licensees were already thought to have met.
Robert Minogue, now the NRC ' s directo r of researc h, explai ned in a 1979 internal memorandum how this situation came about when the size of operating reactors went from 60 megawatts to a lmost 1200 megawatts in little more than a decade:
This rapid increase in power levels occurred wit hou t obtaining any substantial operating experience o n t Ii t? n u cl ear p l an ts a t i n t e r med i a t e l eve l s pr i or to incr ea s ing the size to higher lev e l s.... I think that much of the racheting of regulatory require ment s for the operating pL1nts ubout wtdch indu s try has co mplained ha.s bee n a direct re s ult of the £act that the unduly rapid pus h to larger sizes has resulted in what amounts to a generation of prototypes.... this situ<1tion was almost inevitable giv e n the subs tan tial extrapolation fr om th(::! early technolo<Jy.
In light of t rd s background, t-.he need for cha nyes in eq uipment or operations in orJer to mL' l"t previou!;l_y e::; tc1l)li :*; licd basic
- safety standarJs, or to comply with newly promulgated safety standards js not at all un eX i)ec ted.
To the contrary, it constitutes, in effect, the tradeoff in return for allowing the industry to build l a rge r eactors that went far ~ cyond th e true maturity lev el that had bee n r eac hed by til e tech nology.
IIa ving sought that rapid growth, lhe inJustry i.s now simply responding to the rea ~;o nab]y forsecabl,~ consequences by making corrections in systems and ope r at i o ns that were not adequately understood at the time the o ri g inal appro val '"as give n.
Thus, there is a seri ou s question as to ;.;he ther a ny of the post-construction per m i t o r po s t - o µ e r a t i n g 1 i c en :_; e ch a n g e ~:; th at. h i.l v e bee n r equ ired by the Commission con nt i t ut. e some degree of overregulation not necessa ry to ass ure reacto r safety, as the industry would have i t, o r whether instead they s imply const itut e the natural m<1t.uring of t.he sa f ety regulations to catch up with the "undul y rapid pu s h" t.o lar ger re<1ctors.
Indeed, the most s tri king aspect of th e a rgument s that have b een presented in support of "bac kf i t r efo rm" i s the failur e by either the industry, t he rrn.c st.:iff, ur anyone else, t o demonstrate that a singl e ba ckfit was unnecessary.
According to Cha irma n Pallidino' s l et te r of September 29, 1983, to Senato r Mitchell, t.he Com miss i o n knows of no in.stances in which unnecessary ba c kfits were i mpo~ e d.
If t he indu s try ' s complaints are t ru e, th i s fai lu re to de monstrate ev e n one unnecessary bc1c k fit-. is doubJ y.:1st.on i :;hi ng in l i (Jh~. of t he lice nsee ' s cle,.Hly Jef in1'J op portun i t i es to con t-. est. backf i t
f
- l J -
requirements.
u n J er the ex i tit i n <J pr u v i.*,i on ~; of l O C. F. R.
§ 5 O
- l O 9, 1 i c e n!.; l' e s h a v e h.:i d t. h e o pp o r t. u n i t y t o con t-. e :; t a n y backfit, and they could have forced Lile St.:iff to meet. what the Commission it s E~lf ha s rec o<Jni ze <.J us " a relatively high standard."
48 Fed. Reg. 44 21 7.
Accordingly, it is extr e mely doub t ful that there is any need whatsoev0r to pl.:ice an y s ubstantive li mi ts on backfit requireme*nts, as the inJust.ry would do.
If pre vi ous backfi ts have not been co 11 tested, and no unn ecessa ry backfits have been identified, the re is no basis f or pl~c ing ne w limi ts on the institution of backfit r equi rements.
This does no t mea n, however, that t he management of backfit requiremen t s by the Staff ca nno t or shou ld not be improved.
If licensees recei ve differen t a nd at time ::; con fl ic ting s igna ls from different organizati ons and l evels o f the Staff, it no do ubt confus es their opera~ions, and i t ma y bo t h resu lt in unnecessary costs a nd be de t riment.:-il to sa fe ty.
Ma nagement s hould be lilade more eff ici e nt., a nd t.he Staff shou ld be made accountable for its positions.
B.
Breakdow n of l-3uci-:fit I ss ue::;
In order t.o ass i s t. t.he Co mmi :;sion's.:rn a.lys i :;, !J CS has b r oke n down t.llc.~ poten t. i.1 1 c1re,1~; in 1, hi c l1 post-.-approva l chan(Jes m.:1y be requ ire d.
Eac h mu st be <} ddrc:..; :Jcd d i !.;Crctel y to determine wh et her it pre~,c.,nt..s a ny µro blems that r equi re C')mm i ss i on att e ntio n a n d t.o.3s s ur e that t.he sol ut i o ns are t-. ai lor ed to the facts r.:1t.he r t. h.-rn based uro n uns ub r]t antiated claims.
C
~
- 1.
l\\ 11 b -1 ck f i t. s [ a l l i n t-. o o 1w o C t. w u c c1 t. e <Jo r i e:..;,
( a ) those i n whic h t he backfit involve:, a 11 t' W ~~afct-y safety,;tanda rd that i n c r eases the mar g i n o f ); a f et-. y l..J c yon d w li at war, r eq u i red when a reactor was licensed, a nd (b) t-.lH) c,c in which the backf it is necessary t-.o r c:,t*ore t.he de*Jf(.'~ uf Sdfct.y th,1t the 'reactor wc1s bel i eved and intended to provide when i t was licensed.
These are described more fu lly below.
The di ff erence between them requires distinctly differ ent treatment.
- a.
New Rule Back f i ts The Comm i ssion ' s regulations, pri m.1r ily 10 C.F.R. Part 5 0, establish the safety standa r ds t hat must be met by the nation 's nuclear reactors.
These standards a r e adopted throug h a formal r ulemak ing process, in whi c h the public ha s an opportu ni ty to comment pur sua nt to the provisions of t he Adm inistrative Procedure Act.
These rul es.::ire the bc1seline on which reactor safety is de te r mine d.
Tile public has the right to expect and to demand that these sta ndarJs be met.
Over the> 1*e,:1 r s,
.:i.::;
.:i. r <'.'Stl l ~- of exp0.r i ences such us the Tht ee Mil e IslanJ acc i dent or of c1 nalyt i cal or methodologi cal improvement s, th," Co111111i :,s i o n h:i:-; fo und i t necessary t o c ha nge t h es e s t and a r d s, w h i ch i r. h ~l ~; don e t h r o u y h r u 1 em a k i n g proceedi ngs.
Prominent example~, are t he promulg<1tion o f the ECCS r equi rements a decade c1qo a nd th~ proposal to develop stricter hyd r ogen control sLrnd a rd s, wh i cli is s till pending.
\\-l h e n a pp 1 i e d to ex i s t i n g r o c1 ~: to r s,
- t. h e :, e
.:i c t i on :.:; ch.1 n CJ e th e
i!
- lS-underlying standard liy whi ch UH.! safet-.y of t he nu clear reac tors mus t be deter mined.
As il result, they mu st lie s ubj ect ed to scrutiny by the publi c, and pa rt-. icu.l arl.y by tile indu st ry, whos e burdens will be in c r easeJ by t h e new r u l es.
For the purpose of thi s di~;cussion, these backfits will be termed "n ew rule backt i ts. "
Their di s tinguishing feature is that, as a pp l i l' d to ex i s t i n g r eactor s, t ll e y a r e i n add i t ion to what wa s requir12d at the t imt' t.he r e uctor wa s Ucensed, and they incr ease t he deyree or margin of s af e ty beyond what was requir ed at that time.
- b.
Catch-up f3ackfits As previously no ted, the vast majority of what have loosely been termed "backfit s " are, in fact, changes that are needed to brin g a rea cto r in to c o mplic1ncc wi t h regulatory standards after it ha s b een determined, fo r variou!.> r easo n s, that t:.he facility did no t actually provide the lev e l of safety r eq uir e d by the regulation s when i t wa s lice n:.;e J.
Th e ir purpose i s not to make the reactor safer tha n it h<ld t-.o be when i t was li ce nsed to operate, but to upgrade t-.he react or so that it will provide the same degree of safety that the Commi ss ion thought the r eactor
'vil)i.!l d provid e 'wlt(* n t-.tic Co1;1m i ~;s i o n a1-,prove d it s li ce n:.;e.
F o r t h e p u r p o s c o f r h i.**; d i s c t l ~-; s i o n, w e w i 11 r c [ e r to t hes e as "catch-up backf i ts " because they are int e nd e d to require the r eact or to catc h up to wh ere it-. was :.,upposed to be at the time it wa s license d.
C.-:itc h - up \\)a ck( it c; typ i cally occur when the staff disc o v e r s, often lon 1J afte r the pL:in t ha:;; q o ne into
- ope!:'ation, that it i ::; not as safe as t-lic Staff believed when it approved the licen se applicat i on.
this sort of development:
Some examples i llu.strate (1)
'l'MI Accidc*n t Fixes.
Much of the industry's di s cont en t a r i s es fr om !"_he 1 a r g e number of i mp r o v em e n ts that the staff ha s r equi reo si nee ~.he Three Mile Island accident.
The vast maj ority of those fixes, however, were necessary to meet the sa fety standards embodied in the Commission's rules befor e the accident and at the time mos t, if not.::111, operatin') r e acto r s were licensed~
The s ta ff began to r eq u i r e t Ii e f i x es be ca u !3 e th e a c d den t demonstrated that the pla nts were not as safe as had previously been intended a nd believed.
Thus, these are not new s-1fety requirements, but "catch-ups " necessa ry t o meet the Commission's ex i s ti ng re<_Julations.
On e ~x-1mpl e of the po s t-TMI catch-ups is the staff requir ement that licensees connec t press uriz e r heaters, p il ot operated r e lie f valves, and other safety equipment to on-site power so th~t it will fu ncti o n if off - si t e power is los!"..
The st,1ff ' s Jct e r mi n,,t.i on t ha t thi s wa::; necessary to meet pr eexis ting safe t y
!:.~t.:rndard s ilppear~ in NUREG-0578 at page A-3.
'I' h i s a n d o t he r c a t c h - u p s a r e t h e :; o r t o f impr o vernl"ll t.~, to exi.stiny cquiprrH>nt that. must be requiret.l and for whi c h <1 ny n e \\v "b ack fit" rul e must not create any obstacles.
- l 7 -
( 2 )
F i r e p r \\i t-. cc t-.i o n.
G c n e r a 1 DC' s i 'J n Cr i t e r i on ( G DC )
3 r eq u i re s t-. hat t-. h (' r l',1 ct-n r b <.' a cJ t 'CJ u ate l y pro t-. e ct e d a g a i n st fire, but does not-. co nt a in any sp l* ci fi c requir e ments.
The staff approved ma ny pl a n t-.;:; under this v u.gue requirement, and then t he Browns r er r y (ir e pr oved that the plant s were no:- as sdf l~.:is UH'Y were ::; uµµ oscd t.o be.
The plants did not provide the Jegre e of protec tio n intended by the regulation s, so th e Staff bega n t o require plants to up gr ad e t h <.' s e pr o t e ct i on s so they w o u 1 <l pr o v j de the deg r e e of safety t hat the Commission believed they provided when they were licensed.
Ultimately t he Commission is s ue d Appendix R to Part 50 in order to establish detailed guide lines for compliance with the fire protection rcg tlirernents of CDC J.
This is an example of u. new reg ulatio n that i_, not a backfit beca use its purpose is simply to prov i de t he deta iled guidance necessary to meet th e s :-.a ndard previou s ly established in a more gen e r a l fa s hi on by GDC 3.
2
- Envir onmen ta l q ual ifi cc1t. ion.
A::; with f i re protection, CDC 4 hd s l on,3 tequ irl~d t hat-. Pqu i p1i1e nt ue q U cl l i f i l~ d t. 0 W i th.::; t-a n J t" l l C
._, f f I.' Ct* :*,
< 1 f d 11 d CC i dent c1 n d continu e to ~e rve it s ~afct y func t i on.
s ince 1977, it has become clear that t he industry hus ne ve r me t this requiremen t, and the Commission has issued more deta iled guidance jn orde r t o assur e t ha t GDC 4 1/:-, complied with.
But the und e rlyin g regul ato ry requ ireme nt has remai.ned the
- same.
Wh e n the St.a[f or the Commi f.:;sion h<1ve required improvements in cnviromcntal gualiticat.ion at existing plants, they have simply required the licensees to provide the degree of protection that the Commission believed existed at the time the pJont was licensed.
- c.
The O~ckfit aa seline For Each Reactor I n du s t r y a n J s t-..1 f f d i :, c 11 [, :..~ i on s to cl ii t. e h a v e s u g <Jes t e d th a t the ex i s :. enc e o f a back [ i t. :s ho u 1 d b L~ deter m i n c d I.) as e d upon changes from approvals contained in the construction permit, a n cl i n s t. a f f p.:::i p e r s ~; u ch,1 :; t ll e S t. an d a r d Re. v i e w Pl c1 n a n d t he Regulatory Guides, as well a~ in the ope rating license.
These positions ignore both the nature of the c1ppr oval granted by the construction permit zrn d the l ega l status of sta ff position papers.
The approv3ls giv~n in the construct i on permi t are so vague that it is virtually impossible to dete rmin e eve n how the reactor is designed.
To impose a backfit r equ irement upon any changes that the staf f muy require after the construction permit is issued would be to place the regulc1tion of nuclear reactor s in the hands uf the industry, and particularly in the h..1nds of reactor de::, igners.
'l' ti (:' f i r s t t i me t h e s t a f f r e v i e w s t-. h e d e s i g n i n de t a i l i s a t t h e ope r ;::i t-. i n g 1 i c en s e s t age.
That is the fir s t point at \\-Ill ich l ic ensee:.; ha v e any argu<J.ble right to rely upon the staff 's approvals.
If they wish to have backf its ju dg e d from an earlier µoint, they must submit more detaDed designs and seek appr o v.::ll.s ot th es e detai.ls at the
- -1 9-con s t r u c ti o n p e r m i t. s t a g e, w h i c h t h e y h c.J v l~ cons i s te n t 1 y r e f us e d to do.
Argumen ts th at the SRP, Re<Jul ato ry Gu i des, or oth e r Staff positions should be vi ewed as the basPline from which t he neeed f or " b a ck f i t s "
s ho u l cl LH:>
j u d <J e d i g no r ~~ t h e f a c t t ha t the s e document s are not. r egulatio ns.
- They ha ve ne ve*r been subjected to public co mme nt, a nd th ey are not bincJin<J on either the Staff or the licensees.
The requi.rernent is no t that these documents b e c om pl i e d w it-. h, b u t
- t. h at t h e r e g u 1 a t i o n s be me t.
'l' b a t requirement gove rn s e ven if the licensee must undertak e exte ns ive improvements not r ef l ected in the SRP in orde r to comply.
Although, fo r t hes e re as on[,, cha1v:i es f r om s taff positions in t he SRP or o:-.li e r inf ormal ducurne n t s c<1 nn ot b e co ns id e r ed to have any d i s ti n ct l e gal s t at u :, a::; ba c k f i ts, th e y rn a y ca use pr act i cal d i f f i cult i es [or l j cl' n sees vii 1 o we r e i: o 11 ow i n g pr eviou!, staff posit. ion :,.
Of co urse, the l ic e nsees have th e c:ho ice of dis a greeing with the s taff and attemptin g to convince the licensi ng boa rd t-. h,1t. t.hc *ir ac t.iun ::; comply with Co mmission r eg ula t i ons 12ven if they do no t mec:'!t. the latest staff p os i tion.
If li ce nsees feel st rungly about a n is s ue, this i s what they shou lJ do.
It may, noneth.l ess, be useful from a pract ical sta ndpoin t to establish a rea sonable 1nechanism to assure that before the operat ing lic ense is is s ued licensees are not b urdened with conflicUng staff pos iti ons a nd that any new staff pos ition s
~ are reasonably justified.
Although the~ e changes arc no t backfits becau :c;e th e y du nut involve cilanc_Je ::i in t-.he Commission's safety regulation s or in equipment approve d in detail by the operating li ce nse, they could be subjected to tbe sort of pr oc 1..~JuLll mcc h ;H1i ::11 di :, c us~;(' d at-. pay e!~ 20 -
26 below a s
.J me.::ins of,1 JdinlJ \\..'.l ~r.t., i11~y tu t* hc '>~H' r.1~.in,.:1 J icen :,t: review proce s s.
It i :;
-j mp o r~.,1nt, h o *,.., l'V *: r, th a ~. ilny such procedure be trnbjcct to publ i c
!:-; c ru t-in y,
.:1 t. lcu :, t b y reqllirinq that. all such s t.:1 f f ch an g e s an J r 1.' s u l t i n <J l 11.: *.! n !3 c e a pp e c.1 l 0,
~ll on g w i t h a 11 rel evant docu 1i1<? 11t..:1 U on, b e id c nt-ifi e <.J i.lnd r c ve.Jl e d to participants in the ope ratin g license heurin~.
I n s um, t h e lJ as e l i n c !i f r l) m w h i c Ii lJ a ck f i r_ ::; m c1 y b e j u d g e d a r e the Commission's regulations a nd t-_h c plant, equipment, a nd operation s a pproved in th e o pe rating lic e nse.
It may be reasonable to streamline and r.:i ti ona li ~:e s t.aff de alings with licensees during c onstruction and dt1ring the operating licen se review stage, but s taff ch a nges during that period are no t backfits.
I II.
Solu t ions Industry a nd !..~t af f pr 0 po:;<1 l ~ to Ju te ha ve had bo th a pr o c e du r c1 l a n d a ~, u b s t.:1 n t-.i v e comp one n t- *
'l'he t wo must be a d d r e s s e d s e µ c:i r a t e.l y, a l t. h o u 'J h l i t t-. l e i f a n y o f t. h e a n a 1 y s i s t o date has done s o.
a.
Th e Pr oc edural Compo nen t The procedural component o f backfit r e f o rm proposals involves several subi s~ucs, many of which mc.1y b e l egitimate,
- although it is difficult to tell since the industry c on s i s t en t l y fa i l s t o i den t. i ( y H. s
!3 p e c i f i c pr ob 1 ems.
Th e essence of the proce~ural component is to-assure that the staff manag~s tt1e implementation of backfit requirements in a manner that assures that the requirement:~ are well considered and justified, minimizes dupli c<ltive or cunflicting instructions to licensees, a nd minimiz es t1nneces3a ry burdens upon licensees in implementing th e backEits.
UCS generully supports the concept of this sort of procedural reform, but it must be done carefully in o rd e r to assure that it Joes not deter or delay necessary improvements, particularly if they are catch-ups necessary to ret3ain safety protections that were once thought to be met.
The v.Jriou s procedt1rc1l propo:~.:ils,rnd related i ss ues follow:
(1)
Require tile Commission :;~aff to justify all backfits.
UCS ::rnpports this r equirement in princ iple since it would contribu te to rational decisionmaking, which is sorely lack ing at the agency.
In the case of new rule backfits, thi.s would not be a new requirement since those must go through rulemaking in any event.
This requirement could present a problem with r espect to catch-ups backfits by placing a n excessive burden on the staff.
However, if the Staff ha s a rea son for a11y catch-ups that it may require, it should be able to put it in writing in one or two pages with no difficulty.
That is the sort of just.i fi cat.io n that ~jhould Lie required.
(2)
Requir e all backEit requirements to be reviewed and approved by a single office or individual at the NRC for each plant.
The purpose of t-.h is requi rernen t would be to minimize the confusion in de.:ilin<J with t-.he staff and to assure that new staff requirem0nt s are coorJindted so that they do bot over 1 a p or con f l i c t-.
.:.in cJ t. h.1 t. U1 e y c c11 1 l, e i mp 1 e r:i en t c d efficiently.
Again, UCS unde rst a nds the neeu for such a requirement and would no t oppose it.
It is essential, however, that the process be ope n to ful l public scrutiny, including acces::; to all backfit proposals to be revi eweJ by tl1e ce ntral organization, to all staff-applicant correspondence and all staff documents, and to all staf f-applicant meetings, with notice suffi ci Pnt to permi :-. the pub.l i c a n opportuni t-.y to atr.end.
The public should al~o have acces s to detailed minutes of all meetings of tl1i s ccnr.rdl o rganization, whet he r internal or with licensees.
All of the~e prov i s ions are app ropriate as cJ matter of pu!.Jl ic policy.
'l'hcy are also necessary to prevent undue power from being concentrated in the hands of a few individuals ho st il e t.o safety improvements, as has occurred with the Committee to Review Gen~ric Requirements (CRGR).
The CRGR has been a lmost complet e ly insula t ed from public scrutiny,
\\vi th 1 i mi ted access to relevant documents and only sketchy, essentially meaningless mint1tes of i ts mt.>eti.ng~,.
As a result, it has acted freely t.o limi t improv e me nt s, e ven intimidating othe r members of the staff respon s ible f or r eactor ~afety.
Any
. ! l o n g-te r m app r oach to Uw h.:1ckfitt.i n g iss11e must remedy these se riou s deficie ncies.
( J )
Pr o v i d c f o r s om e f o r rn o [ i n t. e r nu l a d m i n i s tr a t i v e appeal above the st<1ff l e vel that ini t ially impo ses a backfit requ i rement.
UC S suppo rt. s th i :..;,: o n ct'µ:-, a l though i t mus t iJ e open to publi c scrutiny, wit.h noc ice uf all object.ions to proposL~d buck.:.i t. s, and oppor tu n i ty to comrne.nt, and the r ight to a t te nd a 11 st a f f - a pp 1 i cu n t* m 1..' 1:~ t i n gs on the sub j e ct.
( 4 )
Do not dou:)l e-- b ind li ce nsee:.; by ordering them to begin one sort of action to i 111plt.'m1:!nt a catch-up (or, l ess like l y, a backf i t) and then ulUmatcly settling upon a diffe r e n t solu t io n to t h e proble m.
Th is may occu r because i.t takes some time for the Staff t o develop solutions once ca t ch - up pr ob l e ms a r e d i :, cove r e d.
s i n cc n e i the r t h e S ta f f no r the lic e nsees.:ire wil.li11 g to s hu t down re.:icto r s Juring that pe r i o d, they adopt inte r im solutions that somet imes a r e not the same as the s olu t io n t hat i s ult i mate l y developed.
The indust r y complai n s that this un reaso nably raises i ts c o s ts an d penalizes those ~ho take prompt action.
'.::'hey seek at a mi n imum the right to r e ly upon s uch i11t.erim solur. ion:..-; i f they p r o v ide protect i on equ i v.:ilen t to t.ll ~it pr ov iucd by the Staff ' s ult i mate solutio n.
Th i s is.laryely a case of licensees makin<J !:. heir beds and then not w.:1nU ng to slet::"'p in t hem.
Whe n the prohlem i s disco v ered, they have the ch o ice of shutting down to await the ult i mate solut i o n or of tak iny interim mea s ures to justify
l't,.I interim operat i o n.
1 f they c ll o o !, e t. h c 1 at t er co u r s e, they s ho u 1 d no t b e h e.::i r d U) c o rn p l a i n \\v h t' n r. I I e i r i n t e r i fit rn e tl r., u r es,
take n at their ow n risk, are not accepted.
On the other hand, we recognize thvre may be pract ical diff i cu l ties t.h.1 t deserve at.te nt.ion, and there i s nothing inh e r ent.ly unre,u;on.::ible in pt~rmitt iny allern<1t ives that provide equi val e n t protection.
Th e difficulty is that the syst em begi ns to bec ome unmanageable c1s <1lternatives proliferate, it is d iffi cult to deter mi ne equivalenc e,
<1 nd.staff-applicant e q u i v a l en c e n c lJ o t i a t. i on s t en u t. o L> cc o Hw h i d den f r om t he public.
Accordingly, UCS believes that the "doubl e-bind" issue should be handled as foll ows :
( a)
Onl y a very narrow eq uivalence test s hould be allowed.
The question should not be wheth er the reacto r with the alternat i ve solut ion i s c1s safe overall as a r eactor using the Staff's solution.
It i s essenti~lly i mpossible t o make su ch a comparison in a ny reasonable way.
Rather, the test mus t be wh ethe r the a l te r nat iv e backf i t provides the same specifi.c safety function and achie ves the same :ipecific safety goal as that provided by the Staff's backfit.
(b )
The alternat iv e should be spec i fically r ev iewed and a pproved by t.he Comm i ssion in the context of t he relevant rulemaking proceeding.
Thi u is necessa ry in o r der to ass ure public involvement in the decision.
It i s also con s istent with the f act that the ult i mate back( i ttiny decision is bei ng made by a n ew rule, as in the ca s e of the f ire protection and
- 2 5 -
environmental qualifi,:dtion rule t;.
Tt i s al~o consistent with licensee schl?dules and uctjon :::, :_;ince t he ver y neeJ for this determination arises from t.lw fact th-ar t.he 1 i censees began implementing ulternatives before the so luti o n was ultimately arrived at liy the st.:iff.
Thui;, t.hei r,11 t.er na U ves ca n be includ ed in the rule1;1;.i k i ny P<lcka13e Jlon<J with the :staff ' s proposal so that all ar e decided upo n in tile.sc:i me proceeding.
(c )
Lice 11::;ces could avoid the backfit by showing, under 10 C. F.R. § 2.758 or a similar provi s i on, t hat the purpose of the par t icular backfit d,Jes not apply to their L1c ilitie ~,.
- Again, the decision wou ld lie open to public scr utiny and would have t o be reached o n a rational and justifiable basis.
(4) Permit re asonable scheduling of backfits o r catch-ups consis tent with oper a tion a l needs.
Here, t he indust ry seeks to avo id unplanned shutdown s dnd to impl ement any upgra des duri ng planned out ages.
The solution to this pr ob lem is fraught with logical and l eg al incon s i stenci es.
In principle, when the Comm ission decides to adopt a new safety s t ~nd a rd, it has de termined that the new requir ement i s necessa ry to protect t he public health anJ safety.
S imilarl y, any c,1t.ch --up back fit.s are necessary to comply wi th t~X i st ing s*tandard:; t-.l1at are n,:.,cerssary to protect t he publi c health and safety.
These points are particularly t rue because the Commission h.::is no real criteria to determine reactor safe ty wh e n it ini t i al l y i ss ues r eactor lice nses, and history demon st-.rates t hat ;th,, :; pr cmdt.:H e ly li c e n3ed many
-2G-(probably all ) plants bctor(' it was ce rtain that th e y were safe.
Thus, logic and t e..i.snn di c tatt' ~. hc:.it al l back[it.s should be implemented immediately, r t.'ga rd le,,.s o( how thi.s mig!1t d i s r up t r e..1 ct o r op Pr...1 t i o n:~.
I r t: he lJ at.: k ( i t:;,H e n e c e.s s a r y to protect t-_he public h e.:1lt h,llld s afety, rhere is no excu,e for del,1y.
Hi s tory* dl*lil ()J1 ;; t-r<lh.'s,
h o \\v<'V t:!r, that the Commi.s::;i0n simply will not shu~_J u\\m rt'.-:ict.ors h1 the~.,12 c ir cum:.,ti:rnces.
To the contrary, if for..:ecl to a c ci.>pt th i s logi c, the CommL-,s ion would pr obably s t op requirin <J back(i t.::; a t all.
In this conflict between protecting the inte~rity of the Atomic Energy Act and achieving increased protection of tl1e public health and safety, the latter must preva il.
UCS bel ieve s, therefore, that the Commi srd on should ado pt o. r c.::iso nable proces s that wi 11 allow the C O mm j.s s i On r. he s Che d ll l i n CJ f 1 (' X i I:) i.1 i t y th <l t i t b Cl i e Ve s j s necessary to i rr.plement backfits.
UCS µroposes the following:
(a)
Fo r t.lli~ re c.1s ons Ji ~cu 0S 1.:"'d above, all backfits must be ir.iplerr.e n ted irnrn e Jia~.ely un l 1.:' '.,1, <1n e x 7".e nded s ched u l <:'
i:.;
p ermitted a s s et out bel ow.
{b)
Ju st ifi cati o n s f o r t he,; af Pt.y o[ c ontinu e d oµerat i on w i 11 b e p e r m i t. t. e d u nu e r t h 0
[ o l l o *,1 i 11 g con d i t i on.., :
( i )
1\\ 1 l j us t i f i cu t i v n !i m u s t. be f i l Pd by l i c en s e es by a date certain within a short ti 1ae (on0 month or less) after the backf i t rt"'l]U i rement i s *i ss u1..!c.L Th e re mu st lie no extension s.
'~'his s trict pr oc PLlurt' L ; necessa ry t 0 JVoid bu rdenin g t he s taff with st.run~-out ex ten s ion r e4u ~s ts and to
JI av o i d t. h e d i s g r a c e f u 1 con t i n u o u !j noncom pl i a n c e s i t. u a t i on th a t the Commissi on encoun t-. l~red wit.Ji r es pc'cr. t. o e nvironmental qualification,.:is reflect.Pd in CLI 21.
(ii)
The ju s tifi c ati ons mu s t provide a rational basis for a wri t te n sL1ff,Je terminat.i,.Jn th-:it. t he r e acto r c a noe ope rated safel y pen J ins co mp l etion of the specific backfit.
Gene r a 11 y, i n o r de r t o m c e t t-. h i s t e s t t-. h e j us t i E i cat i on mus t demonstrate tha t. thf, purp ose of the backfit is being achieved in s ome other way during the interilil pedo d.
- b.
The Su bst a nt.iv t~ Compon e nt.
The subst a ntive compone nt of backfit reform as proposed by the industry involves establishi ng a restrictive standa rd that backfits must meet before they may be imposed on reactor 1 '
~1censees.
t wo-f o l d.
Th es e pr o posed r est ri cti ons are generally Fi r s t:.,
t lw y 1m u l d r eq u i re t ti at th e back f i t "w i 11 s u b s ta n t i a 11 y l ' n h a n c e p u bl i c ll e c1 l th a n d ~; a f et y a s a r es u 1 t o f improved ov e r a ll s a fe ty, " ( l.:inguage propo s ed by the Atomic Indust.r i a l For um).
Socontl, t ltcy wo u.lJ require so me :3ort of cost-benefit. anal ys is und er "'hicli t h P unquan t i[iab l e degree of a dditi~n a l pr o te c ti on tha~ woul d be provid e d by t he improvement mu s t be comp a r l~ d w i t h,
c:rn d mu s t P x c e e cJ, o r e v e n s u b s tan t i a 11 y e x c e e d, the de c e p t. i v e l y y u, l n t i [ i c1 b l e c o:, t s o f do i n g t he work.
In the a bse nce of any indi ca ti o n tha t c1ny back[its that have been r equ j red t o date \\Jere unnec1:.~ssar y, there is no factual basi s for ar,3ui11 g t h at-.
t h e Co mmi ss i o n nee ds to adopt any special backfitting s t andar d.
Be f o r e the Commi s sion e ven
- I n s tea d, t h e y s ho u 1 d be l e f t
- t. o t h P. es t. ab l i s h e d r em e d y o f attempting t.o d c:'mon!>trate un der 10 C.F.H. § 2. 7'j 8 t hat the purpose of the oackfi t does not c1pply to t he ir facilities.
The burden of der;-ion~;t.ratin(J that U11>ir facilitie::, Jo no t need to comply with the r\\..' CJU i [ ('mP llt must. be pLicL* d upon the~ licensees.
I n t h c> f i r s t. p l a c e, t h (' s L1 [ f do e :j nu ~ Ii av e t h e r e:..; o u r c e::; to ca r r y t h c opp u s i t e bu r d c n w i t h r esp e c t.
t* u e v (_~ r y r e il c to r,
p a r t icularly c1Cter the Staff h.::is alre.::idy c<1rr ied the burden necessary to support. promu.lgat ion of tlie ru le in the f i r st pl.:1ce.
I f t h 1~
r u 1 e s u r v i v e d i n d l l !, t r y co rn men t a n d s c r u ti n y, i t becomes the indi *vidual li censee ' s r espo ns ib ility to demonstrat e why it should not hav e to comply.
There sho ul d be no need to establish a ne w administrative mech.:inism to implement thi" c1 ppr~)ach.
Li cem;ees *.vould 8imply seek a Ucen sc amendment to iw rmit ir;iµ l emcntation of their alternative approaches.
Th ey wuuJd seek a waiver o r exception to th e requirc,:ie n t und e r 10 C. F.R. § 2. 758 or a.s imilar provisi on dev~loped ~pec ifi cally for tli i s situat i on,, and the request wo uld he subject. to pu'..::olic scrutiny in a licen!3e amendment hearin g.
Und er this approach,
- 111 o L r. he 9,1ul,, o ( a r easonable backfit progra m would be r.wt., a nd ~.he interests of al l parti es would be satisf i ed.
F i r st., th e age n <: y w o u 1 d,
i n the r u 1 e ma k in g proceeding, meet its burden of demonstrating the need for the 1-r equ 1 remen,_s.
Second, the burde n of Jemon"trati ng that the rule need no t be met would properly b e placed on th e party
-- 2 9-seeking spec ial tre<1tinent.
Th i r cJ, an PXemption from the rule would be avai L.ible upon a ::; bowing thar. equiv<1lent protection was provided through a ~,pec ific alterndtiv e.
fourth, the determinat ion wou ld be su bject tu public scrutiny under the provisions of Secti on 18 9 (a) of t h e Atomic Energy Ac t and the Administrativ e Proc edure Act.
(b)
If UH~ upgrad e i s r equ ir e d to meet preexistin<J regulatory standards -
a "catc h-up" -
no new substantive standard is perm i ssi b l e s inc e the ve ry purpose of such an upgrade is to meet the safety standard that the plant was supposed to fileet in the f ir:..; t place.
Th i s is the protec tion required by the Commiss i on 's regulations, which were subjected to th e rulemaking requir emen ts of t he Ad ministrative Procedure Act, a nd which may Ih> t bP ch :1n(J eJ wi t ho ut going through rulemi:iking.
Tht1 s, the cn ncept-. o f justifying proposp<J impr ovements in the Eacilit.y by s ome ~_;tand<lrd of substantially increased pro tect i on, as Atf would require, i s irr elevant in th i s context.
The bas el i nc i s not the ~,afety ass ured by the fa c i l i t y as J e :, i CJ n e d
,111 d
-i ~er u t. e J, bu t t he s c1 f et y r e y u i r e d by the regul ations.
That degree of s afety must be reg a ined if it is lost or nev er existed.
He r e, th e b u r cJ en may b e t; l i g h t 1 y d i f f e r e n t s i n c e t h e s ta t f has not yet held a rulemaking proceed in~.
The staf f must bear the injti al bur d en of ju s tifying the cat.ch -u p, as set out i.n the procedural r efo r ms sugye uted abov e.
Once t he s tuff pr o du c es t h a t j u s t i f i c.:1 ~- i on,
i t mu ::; t. h e t h 1: l i c e n :; e e ' s b u r den to demonstrate otherwis e.
- I I I.
Re s p o nses to t.he Cl) Jntn i :,s i o n* ~, fHH*st. i nn::;
Much o f th c pr e v i o u :-; J i :; cu:;:" i l) 11 r ( * ~_; J.1 on <L to t he pa r t i cul a r questions rai sed by t.llc Commi~_;s i on in i ts /\\dvance Noti ce.
For clarity, h owever, we,1dJre s~,
\\.!,1cl1 or r.lio:.,e que s tion s h e r e, with r efere n ces to
. hut di :s cu ::;~ i u n as appr u pr i dtc.
- 1.
How sho uld "b,1ckli t:-_inq" be d 1:f in ctl?
Th i s is,rn impurt-..:int quc ~_; tion si nc e* the inJu ~_;try c1nJ, un t il n 01.,:, th 0 ~rnc l:.:iv e f.:1 i.led t. o d i st i n g u i 3 h bet w Pen th c var i o us s i tua ti o n s in which changes may be r equ ired or to develop solutio ns ta il ored to the s ituations.
While we appreciate the co nc ern a ppare11tl y reflect e d in the Commi ssion' s quest i o n, we believe that argu in g over the definit ion o f "b a ckfit" may degenerate into a semant ic game in which substance is over look ed.
Thus, in our view the Commissi o n s ho uld define the term essentially as it alre.)J y hil s at 10 C.F.R.
§ 7 2.42.
s ection, as appl i ed to react o rs, would read us fo llows:
'[B]ack fitt i ng ' 1aet1ns the addition, elimi nati on, or modjficati o n o f st ru cture:,, sysr_e m:.,, or components of
[ a react or] a[te r
- -.he li ce 11 ~c ilas been i:.,:..; ued.
That rt wou ld also be r e.:1,;o nabh* to add chanses i n the o pe rating orga ni zation as oa ck f it s.
The point, however, i s not how bac kfits sh ould be defined, but that the diff er e nt types of.: b c:1cktit.s should be distinguished a nd tre.::iteJ d iff e rently.
UCS has a l reudy addressed this issue in some detail.
see the d i scuss ion of t he dist inct i on between "n ew rul0 backfit~~ a nd "catch-up b ackfits."
l e
fl a.
Management procedures governing hackfit.ting requirements may apply to ~ll a ~pects of reactor design, construction, or operation, including proposed training and staffing changes.
such management procedures, and particularly any attempts to lim i t Staff or commission discretion, must not apply to propo:, 1?. d information rcgue>sts or requests fo r ana lys is or tests, or the like.
These request s dre vital to the Staff's and Commission* s ability to keep ab r east oE developments and to be kno~ledgabl e of potenti~l safety prob lemc.
The staff needs the infor mation that: i s obt-.a i n ed through such r equests in order to determine whether backfits.should be proposed, and thereby to develop the justif ication for any reactor improv ements that it may wish to require.
To require a similar justification for information requests would eff ectively make those r equests impossi:Jle by c.Jepri vi11g t-.he stafE of r.he vt~ry information that would be need ed to justify the m.
This is particularly true since the regulation of nu clea r power does not involve cl ose review of all aspects of r eactor design, construction, and operation, but an audit process under wl1ich the Staff depends very heavily upon information prov id ed by t.he licensees.
Its ability to obt~in that information must not be hinde red.
Safety stand:1rd revi sions that a r e imposed th r oug h changes in the Commission's regtil.:::ition :; -
"n e v; rule hac kfit.s " -
s hould be s ubjec ted only to l\\PA ruJernaking requirements.
The r u 1 em a k i n g pr o c 0 e d i n g o r a l a r. e r 2. 1 'J 8 w a i v e r r c q u er; t i s th e appropriate forum fur licen~,e0:_; to r<..1 i ~~c their i ndividual
If concerns and have any Cornmi ::.; s iun de c jsion be s ubjected to public scrutjny.
The standard:, s hould otherwise be.::ir:;sum~d to govern.
- b.
l\\:; prevjou~;ly discuss ed, a change in Staff po S i t i O 11 Call !l O t j t SE' l f CO ll :..it it-. l It C LI
\\) <l Ck ( i t O e Cd US e j t i S nothing more th;:in :he Stc.1f f 's view of h mv the underlxing c,Jmmission n_>guL-1tion~ m.:iy ue complied with.
It ha.3 no leg a l
.significance.
Tile ~a sc line from whi c h proposed i.mprovernents must be judge d is the c ommi:..; si \\)n's r e<Ju lation s and the degree of protection that they require, subj ect only t.o the proposition that licen sees 1nay b e able to avoid specific new regulatory requirement s wh ere they obta in a waiver.
Beyond that, only the operating license may ~.,erve as any sort of baseli ne for particulilr reac to rs.
Fo r t he rea~ons discussed above, the con:, truction permit. does no t-. provjde specif ic upprovals from whi ch cl1unge.s can be Li ct.e rmj n e d unJ er the definition of backfit.
- 2.
The q u~s tion of a s'::and,:ud for determining whether to impose a proposed "backii t.t-. ing requirement" is ilddres.sed in the s e c t i on on t he s u b s tan :. i v t~ c o rn po n e n t-. o r b a c k f i t r e f or m *
- a.
As di s cussed above, the Atomic En e r gy Act does not authorize the Commissi o n to co nsider eco nomi c costs in determ inin g wh ether a safety requirement should be imposed.
- b.
The degree of ju s tific:ation required by the staff is discussed in the sect i on un t he procedural comp anent of backf it reform.
-JJ-
- c.
There should..:111-Jc:.iys be u presumption in favor of t h e s a f e t y b en e ( i t t o I J e cJ e r i v <:' d [ r om d
h ack f i t r e g u l a t i on s o r other impr ovement.
How evL~ r, there sho :.d d be no standard for c omparing such uenef i t:, t.0 cconorni c co~*;t!:i uecause such c1 comparison i s illcg~ l.
I n,1 d cJ i t. i o n, ; t,_;
- t. h i t; q u e 0 t i u n implicH.ly recognize s, it" i s essent i a lly impo!;s ibl e to attempt to compare t he vi t.:.il but. intangible benefits of safety improv eme nt s J ga i nst tl1e falsely pr ec i se qu <lnt itativ e estimates of the costs of the improvement.
Conq r ess has ma nda t e d that s afet.y be pr otect.ed wi t l1out regard to cost, and has t hereby determined that no s uch compar ison will be allowed.
- d.
'l'lle on l y showing necessary to justify a backfit is that (1 ) the Commission has adopted the requirement as a new r egulat i on necessary to protect t.he pu!.)lic hea l th and safety or
( 2) the impr ove1,1ent is n ece~, s.:Hy to r erp in the safety protection thc1t was inte nd ed wne n the plant was li ce nsed but that subsequen t events have shown did not actually exi st.
As previously dis cus sed, PRAs must not be uset.l for thi s purpose.
e.
For the rea sons d i scusseJ er.t r lier, it is not appropri ate t o cons id e r a ny c hanges required pri o r to t he i s suance of c1n 0pcrati n9 licen:__;c as bdckf i ts.
They are simply act i ons necessary tl) comµly ~vith Com1;i i ss ion s.:iE ety regulations.
3.
New r ule backf i ts, thnt i s changes to the Commission's s a f e t y r e g u l a t i on s, s ho u l d b e i mp or, Pd th r o ugh r u l em a k i n g, w i. t h licensees beariny the bl1rdc11,,C pr o viny that they are no t
j
,:01:1po 11en t u[ b.1...:kfir r (' f *.)rm.
- 4.
SPc th,~
1li:3 c u.;._; iun ul :.;c:IJ,_*du l irl<J und<'r th* : :;ect ion 0 11 employed.
Th t? t hr e [, ll I l 1 u i n,d 1 c.:1 s l':.:: r 0. ma i n :, comp l i a n c e w i th Co;nrn i ss ion r e glllations and r otect ion of th e public h ealth and safet y.
No "approach" to L>ackf i t ting chan<]es that pri ncipl e.
6.
In o r d,._, r to t~ n h an c e c e r t. c1 i n t y,rn d t he o ver.::i 11 s a f e t y o f nuclear pow e r,.3[J \\vell as the CommLss i on' ::; and its Sta ff's ab ility to ad d r ~ss all of th0 com?l ex i ::;sue, the Commission shou ld r es i st efforts to a dopt Jlt ern.:1t ives t o ~a - kfit r equirements 3~ much as poss i b le.
ThL, o n ly e xcus e :. hould be th.-:;.t the backt it is not ncedeJ a ~.. he parti cul ci r p lant because
~he de s ign i s such t.hat i ~ wo u ld n ot-. ~er ve or i s no t need e d t o s t' r v e i t.s :, p e c i f i c i n t c n d e d
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OFFICERS President ROBERT L. McKINNEY Pre,ident-elect JACK K. SPRUCE Vice President GORDON w. HOYT Treasurer C. M. PERKINS E1t&cutive Director ALEX RADIN DIRECTORS JAMES E. BAKER Shrewsbury, Massachusetts HENRY A. BELL Columbus, Ohio BARBARA BIDWELL New Smyrna Beach, Florida JOSEPH BLAIN Taunton, Massachusetts WAL TEA A. CANNEY Lincoln, Nebraska BILL D. CARNAHAN Fort Collins, Colorado RUSSELL DAU Missouri Basin Municipal Power Agency Sioux Falls, South Dakota JOE B. DYKES, JR.
Tallahassee, Florida JOE H. EXUM Jackson, Tennessee WILLIAM A. GISSLER Santa Clara, California PAUL P. HEMBREE Nashville, Tennessee RICHARD HOAKINS Toronto, Ontario, Canada DON HOWLAND Duncan, Oklahoma GORDON W. HOYT Anaheim, California PAUL LANE Los Angeles, California JACK H. MADISON Tillamook People's Utility District Tillamook, Oregon RICHARD E. MALON Columbia, Missouri N. L. McCARTNEY Springfield, Missouri THOMAS H. McCAULEY Moorhead. Minnesota MIKE McDOWELL Committee on Power for the Southwest Edmond, Oklahoma ROBERT L. McKINNEY Cowlitz County Public Utility District Longview, Washington JOHN S. McOUEEN Chattanooga, Tennessee WILLIAM MESCHER Santee Cooper Moncks Corner, South Carolina TIM MORAWSKI Holland, Michigan ERNEST J. MULLEN Kaukauna, Wisconsin PAUL J. NOLAN Tacoma, Washington PAUL W. OSLER Indiana Municipal Electric Association Tipton, Indiana C. M. PERKINS Salt River Project Phoenix, Arizona GEORGE D. REICH Plattsburgh, New Yonc DON E. SCHAUFELBERGER Nebraska Public Power District Columbus, Nebraska HAROLD SCHIEBOUT Sioux Center, Iowa WYLIE H. SMITH Dothan, Alabama JACK K. SPRUCE San Antonio, Texas DONALD L. STOKLEY Municipal Electric Authority of Georgia Atlanta, Georgia WILLIAM C. WALBRIDGE Seminole Electrk: Cooperative Tampa, Florida ROBERT C. YOUNG Burlington, Vermont oociu:r m.J11m:RPR PROP.OS£0 RULE
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DOCKETED AME R ICAN PUBLIC POWER ASSOC1PATION 2301 M STREET N W WAS HIN GTO N DC 2 0037
- 2 02/7 76 - 8300 Mr. Samuel J. Chilk Secretary Nuclear Regulatory Commission Washington, D.C.
20555
Dear Mr. Chilk:
- AA
.lllM. 4 June.~
1~'4-(' J:"C" tf"l r"....,.
Pl :QB Enclosed is a letter from the president and chief operating officer of the New York Power Authority commenting on the NRC Manual Chapter and Staff Procedures as published in the Fedetal Register, April 20, 1984, which sets forth interim measures to revise the NRC backfitting process.
The Power Authority recommends a two-step procedure which (1) allows informal discussions between Commission staff and the licensee on any proposed backfit, and (2) requires NRC to prepare a cost-benefit analysis to document and justify the backfit if the licensee disagrees with NRC staff findings in the step one discussions.
The Power Authority also advances criteria for inclusion in the preparation of a cost/benefit analysis which should be done prior to an appeal by the licensee to a staff-imposed backfit.
APPA supports the recommendations put forth in the attached letter, and hopes the Commission will seriously consider these views in its deliberations to formulate a final rule on backfit procedures.
AR :gbf Enclosure Sincerely, Alex Radin Executive Director
U. S. "",,.., " 1 n IT"C: ' t,i TO=tY COM!'ilSSIO DC' '<"~,- *c f
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May 23, 1984 NRC Program for Management of Backfitting Regulations P_age.2 The thousand dollar per man-rem averted identified in the safety goal should be revised downward since this value is unrealistically high and places a disproportionate emphasis on a man-rem reduction from a cost standpoint.
Also, the mean value of frequency should be used in calculating the man-rem averted to the public which has been derived from a properly prepared Probabilistic Risk Assessment.
This will ensure that a realistic and a consistent approach is used when calculating the reduction in risk to the public from a proposed modification.
The Power Authority suggests that the procedures utilized by the Nuclear Reactor Regulation and the Inspection Enforcement offices should be uniform in their applica-tion to any proposed backfit modification.
If you have any comments or would like further clarifica-tion on the points, please feel free to contact us.
Sincerely yours,
~~k-7(/.~
. / l L. w. Si C air President &
Chief Operating Officer LWS/JPB/ja
123 Main Street White Plains, New York 10601 914 681.6450
,. NewVorkPower
-, Authori1y May 23, 1984 Ms. Eileen Peerless American Public Power Association 2301 M, N. W.
Washington, D. C.
20037
Subject:
NRC Program for Management of Backfitting Regulations
Dear Ms. Peerless:
Leroy W. Sinclair President and Chief Operating Officer In response to your memorandum of April 30, 1984, the New York Power Authority is pleased to provide you with the following comments on the Draft NRC Manual Chapter and Staff Procedures governing NRC regulations on backfitting that was published in the Federal Register on April 20, 1984 (49 16900).
The Power Authority believes that the backfitting process should be a two-step process.
The first step may be charac-terized as informal in which both the NRC staff and the licensee discuss any proposed backfit.
The resolution of this step would be either the staff would withdraw the proposed backfit or the licensee would volunteer to complete the proposed backfit.
The second step of this process would be formal, assuming unsuccessful resolution of the first step.
This more formal step would be characterized by a cost/benefit analysis being prepared by the NRC in the beginning, rather than after an appeal process, since it would be obvious that the licensee disagrees with the proposed backfit and further NRC documen-tation and justification would be required.
In an effort to eliminate wasted effort, this cost/benefit analysis should be prepared prior to further action on the proposed backfit.
The Power Authority believes that in preparing this cost/
benefit analysis, reduction in core melt frequency should not be used as a criterion since core melt in and of itself is a poor indication of radiological risk; it is more a measure of economic risk to the plant owner.
When calculat-ing the cost/benefit analysis, the source term used should be based on realistic values, not on hypothetical estimates, so that a valid estimate of the risk reductio"n potential may be properly calculated and evaluated.
Secretary of the commission U,S.N.R,C, Dear Mr Secretary DOU<ETEO U'>NRr I am sending this letter as my comments on the Revision of Backfitting Proeess for Power Reactors.
FR v 49 #78 April 20,1984.
page 16800.
- a4 JUN -4 P2 :53 First I join wholeheartedly with all the comments supplied on this issue by the Union of Concerned scientists.
I wish to add the following.
g~f~t:_v1*~f _J!:.1,t.t :,..
LI NG & SERV/( 1 The union o§ Concerned Scientists objects Yi.~y correctly that the process desc:B~H J.
in the proposed ?tanual Chapter would take t e entire process for backfitting out of the view of the public and into secretive informal meetings between staff anl utility. I agree that the public's right t9 lnow and contend in a day in court would be eliminated by this process.
However, I also wish to point out how the staff has been getting around the purpose of public meetings, henever some bit of infor.mation that vould be of interest to the public or to tm intervenors comes up at one of these staff utility meetings, somebody motions the parties and the staff and utility goes off into a hall or a pr ivate office and confers outside the hearing of the public or intervenor. Thisis not purpose of publicly open meetings. The staff and the utility appear to believe that the
~urpose of publicly open meetings is to maneuver around the public's right to know.
unannounced "executive" or secret sessions between staff and utility representative must be severely
. stopped. Anything less is a farce that cannot provide the information to protect the health and sfaety of the publac adequately to meet the requirements of the Atoma& ~nergy Act.
Very 7ifY;:_ I~ I, M. I. LEWIS 6504 BRADFORD TERR.
PHIIA, PA. 19149
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C 4'1 P/l !69~d Omaha Public Power District 1623 Harney Omaha. Nebraska 68102 402/536-4000 May 31, 1984 LIC-84-140 Mr. Samuel J. Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Attention:
Docketing and Service Branch
Reference:
Docket No. 50-285
Dear Mr. Chilk:
Revision of Backfitting Process for Power Reactors
- a4 JUN -4 P 2 :54 In response to a Federal Register notice dated April 20, 1984 re-garding revision of backfitting process for power reactors, the Omaha Public Power District, owner and operator of the Fort Cal-houn Power Station, submits the following comments.
The District endorses the activity to provide a more uniform method of imposing backfit requirements on licensees.
The publi-cation of the draft NRC Manual Chapter and Staff Procedures for backfitting should result in providing an interim method of ful-filling the NRC Commissioners' directive regarding improvements in backfit practices, provided certain revisions are incorporated, as discussed below.
The District encourages the timely completion of rulemaking on backfit requirements and does have concern on the long term use of an interim measure such as the draft Manual Chapter and Staff Procedures.
Issues such as required plant modi-fications and requirements for staff additions warrant the full benefit of the regulatory process and should not, for an extended time, be processed in accordance with draft procedures and interim measures.
In part 0514-02, "Objectives", (and other parts), the statement is made that "The program should assure to the extent possible that requirements to be issued will in fact contribute effectively to the health and safety of the public and the common defense and security,".
The District believes this phraseology is inappropri-ate in that the concept of "effectively" is a subjective one and, as such, could potentially lead to several opportunities for new requirements which would not be considered necessary for public health and safety.
Employment with Equal Opportunity Male/Fem ale
U.S. N1 J,.LEAR REG DOCKcTl. 'G &
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- 2.
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Mr. Samuel J. Chilk LIC-84-140 Page Two In part 0514-03, "Responsibilities and Authorities", the dis-cussion is not clear regarding NRC Directors' responsibilities and authorities for implementing backfit requirements.
It appears that three offices will have backfitting authority (i.e., NRR, I&E, and NMSS).
While there may be a need for all divisions to initiate backfit requirements, such requirements should be coordi-nated and communicated to the licensee from only one director (i.e., NRR).
Coordination of the backfit requirements through the NRR Project Manager will avoid conflicting requirements, will en-sure thorough review within the Commission (not just one divi-sion), and will serve to provide a mechanism to effectively con-trol and manage backfit requirements
- Perhaps the most deficient part of the Manual Chapter and Staff Procedures is in part 0514-04, "Basic Requirements", section 042, "Appeal Process".
In the discussion on the appeal process, refer-ence is made to "during the appeal process, consideration should be given to why the proposed requirement is needed to achieve or maintain an acceptable level of safety".
Obviously, the need for a backfit should be identified and justified well before any ap-peal process is initiated by a licensee.
There must be a firm re-quirement for the Commission staff to determine the need for and to justify the backfit before communicating any such requirement to the licensee.
Also, the "acceptable level of safety" must be defined if any backfit procedure or rule is to be effective and practical.
Section 043, "Cost-Benefit Analysis", is another portion of the procedure which is deficient
- As written, the Manual Chapter and Staff Procedures place the major burden of determining the need for a backfit on the licensee because a cost-benefit analysis is not required until after the ap-peal process.
The appeal process itself will require the licensee to perform a cost-benefit analysis, since the primary basis for most appeals will undoubtedly involve many of the elements of such an analysis.
Again, the need and justification for a backfit must be determined by the NRC prior to communicating such requirements to the licensee.
A cost-benefit analysis must be included in the justification for most backfit requirements.
Section 044, "Implementation of Requirements", specifies that a re-quirement "may be issued prior to satisfying the procedural steps involved in the appeal process and the cost-benefit analysis, pro-vided the appropriate Office Director determines that prompt im-position of the requirement is necessary to protect the public health and safety or the common defense and security."
The Dis-trict expects that this option will not be frequently invoked and, as an alternative, suggests that in such instances where this pro-cess would be used, every effort be made to handle the appeal pro-cess in an expeditious manner, thus resolving the appeal issue prior to forced implementation.
Mr. Samuel J. Chilk LIC-84-140 Page Three The "Procedure for Management of Plant-Specific Backfitting of Operating Power Reactors Resulting from Licensing Activities",
Section I, "Introduction and Summary Description of Process",
provides that:
"Commission-approved rules containing backfitting require-ments or NUREG-0737 items would not require plant-specific backfit assessments."
Often, even though a rule does not contain specific backfit re-quirements, plant-specific interpretation of the regulation may result in a backfit.
This portion of the procedure should in-corporate this consideration
- In the "Procedure for Management of Plant-Specific Backfitting of Operating Power Reactors Resulting from Inspection and Enforcement Activities",Section III.B.2, the definition of "new requirements" is unclear.
Some sort of criteria is necessary to avoid the situ-ation where, upon licensee appeal, I&E dismisses the appeal be-cause the imposed requirement is not new; rather, it is something the licensee "should have been" doing.
The District believes that the development of procedures intended to improve the management of backfits, without the requirement for the NRC to perform a realistic cost-benefit analysis prior to com-municating such a requirement to the licensee, will not result in an improvement to the existing practices.
Indeed, it is difficult to identify how the referenced procedures, as presently written, will in fact provide any improvements to the existing practices of managing backfits
- WCJ/KJM:jmrn Sincerely,
- w. C. Jones Division Manager Production Operations cc:
LeBoeuf, Lamb, Leiby & MacRae 1333 New Hampshire Avenue, N.W.
Washington, D.C.
20036 Mr. E.G. Tourigny, Project Manager Mr. L. A. Yandell, Senior Resident Inspector
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- a4 JUN -4 P 3 :04 Sc.:-::re ary of the Commission IJ.5. ~:uciear Regu1~tory Co~n1ssion w~sh1n gton, n.c.
20555 June l 1984 LD..84-023 noc~eting dnd se~~ice Branch r S:r:
Draft N~r M~nJa l Ch~pter and Staff Procedures on Rackfitt1ng (4~ FR 16900)
En91 n@e r1ng has re 1ewed the rlraft NRC Manual Chapte r and Staff
- r.c.. aures or. Backfitttng, not1cect i n the Aprtl 20 1 1984 Fecterdl Regtster-
.~9 R l690J).
Oer.ailed coments. based on that re.view. ~re provided in the
~t~*~h~~nts to this letter. rn addtt1on, Combustion Engtneertng has reviewed a~1 h~r~by ~ndorses the Ato~ic [ndustr1a1 For~m r~sponse letter on this
[1 g~rera1, c~~bustion Engine~ring e1dorses the efforts of the NRC 1n
..:,urn iea gt ng dnd <1ea1ing with this important 1ssue.
~bch effort hdS already
~ n exp ende d by both NRC and t :idustry 1n comtrig to grips with the issue of b c. 1tttng. rt ts quitB gratify1ng to see that some progress is no~ being 1 e
{f -:,t--1~ St
,, hould have any questions concerning our comments, theJ rn y f~~i r *e o 1.,r1t1c t rne or Mi*.. J. B. Kingseed of rn.y staff at (2J3) 285*5213.
AES:1dS Atta::h.
Very tru ly yours,
~2::,!NC.
- F ~erer 01rector Nuclear Licensing
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I tern Para_g_rd,E_h l
0514-02 2
0514-02 3
COMNTS ON CHAPTER 0514 NRC MANUAL Comment Att~chment 1 LD-84-023 Page 1 of 1 The stated objectives of the interim backfttting procedures dre to e11mtnate or remove dny unnecessary burdens on the license~, r~rtuce the ~xposure of workers to radiation <1nd conserve NRC resources.
By the Staff's own est1mates in SECY-83-121~ however, the cost to the 11censee appeali~g a proposa1 backfit is approximately s1no,ono.
This effectively eliminates the appa~1 proc~ss dS a viable optton for all proposed backfits, wheth~r wdrranted or unwarranted, when the estimated cost of the b~ckfit is less than $100,000.
As has bei=n notect before when coml'lleriting on COMSECY 3, the cost-b~neftt should be performed before the backflt is proposed and no, on1y when requesterl by the ltcensee at the end or-~n expensive appeal process.
It 1 s st1'ted that the... "progr,1111 should assure to the extent possible thdt requireinents to be tssued wt1 l tn f~ct cont ri bute effectively to the hea1th and s~fety of the pub11c ** * ".
This statement does not go far enovgh and is not consistent with t he Cormitsston's Policy Stateffi~nt on Bdckfitttng (48FR44173-44174).
The Policy St~tement indtc~tes th~t NRC-1rnposed g~neric requirements shouTd contr i hute effectiv~ly ~nd s1gn1flc~ntl~ to t he health and s,,fety of tnepublic C~mpnas'i s"' a;red) r.nd that procedures governing pl ant specific backfttting questions should be similar to those ~ppliect by the Committee to Revie~ Generic RP.qui rernents.
The words 11and s1gnificant1y " should be added to the draft manudl chapter to recogntze the intent of the Commtssion's Pol icy St~tement on B~ckfitting.
The section is silent on the acceptdnce criteri~ ta be used by the Oirector, NRR or n1rector, 1&£ when reviewing the cost-benefit ana1Js1s.
To ensure that the object i ves of the progra111 are met i.e., " *** to el 1mtn~te or remove any unnecessary burdens placed on l i cens~es...
11 and to ensure consist ency between t*rn.R and raE revte~ of cost-benefit analysts, dcceptance criteria should be included in thts Ch~pter.
The criteria se1ected should recognize the objective of paragrap!i 0514-02 that"..... requirements to be issued *** contribute effectively [and signtftc~ntJx>
if ttem 2 is tncorporat~o] to the health and safety of the public * ** ".
LD-84-023 Page 1 oft COMMENTS ON PROCEOURE FOR MANAGEMENT OF PLANT SPECIFIC 8ACKFITTING OF OPERATING POWER REACTORS RESULT[NG FROM LICENS!NG AITIVITtIT rtem Paragraeb_
Comment 1
3 r
- r. 1 rrr.A.1
! tr.A.2 t!I.C.4 For consistency wtth the Procedure For Management of Plant.specific Sackfitting from rE Activities, the fo11owlng sh.oula be ~dded to the end of the second paragraph in the right hand columr. of page 16902:
11 and other ilpproved rlocu1nents
- Wtth the modification suggested by Item 2 of Att~chment l r the word 1's ~ gr,Hi cant shou 1 d be added so that the section r.earls :
"identtf1cation and development of the backfit 1icensi ng requirement. including d statement of how th~ requirement would significantly improve safety".
(11ew word underiined)
In addition to the NRC td~nttfying proposed b~ckfitst this paragraph should recognize that the 1icensee may identify a proposed requirHm~nt as constituting~
back fit.
Same comment as rtern 2 atove.
The sectton is s i lent on the acceptance criteria to be used by the ntrector, NRR when rev1ew1ng the cost-benef1t analysis.
To ensure that the objectives of the progror1 are m~t i.e., " *** to eltmini:tte or ri-~move any unnecessary burdens placed on the 11censees *** and to ensure consistency between NRR and rtE review of cost-benef1t ana1ys1s, ~cceptanc~ crtt~ria shou1d be tncluded in th1s paragraph.
The critertd seletted should recognize the objective of paragraph 0514-02 of the NRC Manu~l that " *** requirements to be issued *** contribute effectively [and si nificantl
- if ltem 2 of Attachment l ts incorpor~t~d to the hea1th and safety of the publtcu*"*
L0-84.023 Page 1 of 1 CO!MNTS ON PROCEDURE FOR MANAGEHfNT OF PLANT SPECIFtC BACKFtTT[NG OF OPERATING POWER REACTORS RESULTtNG FROM INSP 0E.CTION ANO ENFORCEMENT ACTIVIi!ES
~
Paragraph Comment I
r.. l With the rnod1 ftcittton suggested by rt.em 2 of Attachment
- 1. the word "significant 11 should be added so that the section reads: 1dent1ficntion and development of the backfit ltcensing requirementt 1ncludtng a statement concerning how the requirements wou1d si.9.11ificantly 1rnprove safety".
(new word underlined).
2 lfI.A.3 In addttion to the NRG tdentifying proposed backfitst thts par~graph should recogntze that the iicensee may identify a proposed requirement dS c:onstituting,-!
3 III~R.2.{t}
This paragraph is inapproprtdte and only serves to instill in a licensee who ~ay consider filing an appe~1, that such ~n action wtll not be vtewed favorably.
It should be deleted from thts procedure.
4 r11.c.1.~.(i1}
For consistency with the procedures for bacwfits from licensing activit tes t the 1ast se~tence should be modifiect to:
11 A report on th~ result of the analysts w111 be provtded to the Director, tE, and the licensee for comment 1o1ith co~}ies.... " (new words ue underlined) 5 III.C.l.b.(iii) The section 1s silent on the acceptance criteria to be used by the Director, IE when reviewing the cost-benefit ~na1ysis.
To ensure that the objectives of the program are met 1.e.t " *** to eliminate or remove ;,ny unnecessary burdens p1~ced on l1censees *** " and to ensure consistency between NRR and I&E review of cost-beneftt analysis, acceptance crtteria should be included in this paragraph.
The criteria se1ectert should recognize the objecttvP. of rar~graph 0514-02 of the NRC M<11nuaT that 11 *** requtrements to be issued *** contri bute effectivP.ly [~nd si2.!!_ific~ntlX, tf Item 2 of Att~ cnment 1 ts incorporatectTTo t"fi"eneaTth and safety of the public *** ".
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Secretary, Attn: Docketing and Service re PR on Backfitting, 49 USNRC Washington D~ 20555 OOCKET E'.'
USNRC 5-21-84 NC Public Box 2901 Durham NC Interest Research Gp.
27705
'84 MAY 24 A11 :23
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Comments of NC PIRG and Wells Eddleman First, you don't have a workable definition of backfits.
Then you effectively set the original (very incomplete) design as the baseline for backfits.
By your scheme, completing the plant is a backfit.
You have no idea what the level of safety your regulations provide is, but you make this a benchmark.
While it can be obvious that certain things would reduce nuclear plant safety, you can't be sure what would improve it.
You are likewise vague about what is a "licensingff backfit and what is an "inspection and enforcement" backfit.
This is an obvious and crude attempt to get significant safety issues out of the public hearing process.
Is replacing a steam generator a backfit?
You violate the Atomic Energy Act in two ways -- by removing public participation from bhe entire process, and by trying to use cost-benefit analysis when the Act permits no such thing with respect to plant safety.
Then you provide i nformal negotiations, off the record, with the Staff in case the power company hasn't gotten its way.
Of course, you use criteria (CRGR's) and decision structures (EDO's) which have not been provided for public comment!
Another easy way to exclude the public from participati on.
Even if it were legal to use cost-benefit analysis under such rules, it's been called a 1*sham" (and rightly so) by ACRS -members (e.g. Ray and Bender, 9/82).
To top it off, you let the licensees decide priorities with the NRC just reviewing them
- In sum, this is an illegal de-regulation of the constructlon and operation of nuclear facilities.
They would prevent safety being i mproved, since NRC's deference to money is well known (cf.
statement of Staff engineer Isa Yin, explaining why he reversed his position that i mportant safety issues on the Diablo Canyon plant were unresolved: "you have to acknowledge the bucksn or words to that eff ect, 1984).
Power companies generally resist safety-related in:rpr~vements to their power plants because the improvements cost money.
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\\(t'lltle, 1 bu,t CJVl1 LI\\ ~
q-~1 f This proposed rule is just another example of how the NRC puts money first and safety on a much lower priority. It also shows how the NRC doesn't know what i t is doing and cannot define what it shoul d do.
If you stop improving safety, the increasing numbers of reactors will mean more likelihood of serious nuclear accidents (which woul d mean the end of the nuclear industry and the NRC's pr esent setup) and other accidents, which lead to shutdowns and poor nuclear plant performance.
In any event, nuclear power has priced itself out of the market and even if your proposal made any sense (it doesn I t),
you would just be closing the barn door after a horse that's long gone.
Unless the NRC puts safety first, the nuc~ea~,in,~us_t1! _ _:l!:nn~t survi1ve.
Acknowledged by card.:t/e:#.1.'/.~
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NUCLEAR REGULATORY COMMISSION
[7590-01]
Revision of Backfitting Process for Power Reactors
.f\\~TION:
Nuclear Regulatory Commission.
Publication for Public Comment.
SUMMARY
The Commission has completed an initial review of NRC requirements and staff practices for the imposition of new_regulatory requirements for ppwer reactors' a process commonly referred to as 111Yackfitting. II Based upon this review, the Commission has concluded that existing NRC regulations on back-fitting and past staff practices do not adequately identify and justify.
proposed new requirements.
To correct this defici~ncy, the Commission ___ has ~.
directed the staff to implement certain interi*m measures which are described in a pg1icy statement issued in 48 FR 44173.* These ~interim measures have been develop~d by the.staff and reviewed by the Commission.
The interim measures are published in this issue of the FR for-public corrment as directed by the Commission.
DATE:
The comment period expires JUN 4 198-4
- 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.
ADDRESSES: Mail comments to: Secretary of the Commission, U.S. Nuclear Regulatory Commission. Washington, D.C.
20555, Attention: Docketing and Service Branch.
Deliver comments to:
Room 1121, 1717 H St., NW, Washington, D.C., between 8:15 a.m. and 5:00 p.m.
Examine copies of corranents received at: The NRC Public Document Room, 1717 H St., NW, Washington, D.C.
FOR FURTHER INFORMATION CONTACT:
Thomas H. Cox, Office of the Deputy Executive Director
- Regional Op*erat.ions and Generie* Requirements -
U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Telephon~: (301) 492-4357 SUPPLEMENTARY INFORMATION:
The Commission has completed an initial review of NRC requirements* and staff practices for the imposition of new regulatory requi ~ements* for power reactors, a process more commonly referred to as "backfitting." This backfitting process can include both plant-specific changes and generic changes that are proposed to be applied to one or more classes* of pow~r reactors. Based upon this initial review, the Commission has concluded that existing NRC regulations on backfitting {10 CFR 50.109) and past staff practice do not a.dequately identify and justify proposed new requirements.
Following the Commission's*initial -review,-a*policy-statement.and:Advance Notice of Proposed* Rulemaking were is.sued (48 FR 44173, 44217 11 -September 28, 1983) addressing, among other things, interim plans and procedures and a rulemaking proceeding that is.intended-to replace the Commission'.s existing backfitting regulation, 10 CFR 50.109.
Among the interim actions directed by the Commission were actions intended to provide controls for plant-specific backfitting measures similar to those applied by the Corrrnittee to Review Generic Requirements (CRGR)* for-generic backfitting proposals.
In particular, the Commission directed the NRC staff to prepare procedures for effective interim control *of plant-specific**backfitting proposals for operating reactors.
ThEr staff submi tted~propo-sed*=-pro-cedtlres*t~cf:th-e C-ommi s's ion
- on "August 5, 1983, in staff paper SECY 83-32L *The Cammi ssi on has.- approved those procedures with ce!"rta*; n changes.--rhe-*pro_c_e*aares**are-:-rrow**;n*-e*ffect on an interim bas_i s, have
~
been sent to al1
- operating reactor* licensees fo~- tnfornia_tion, and are being published for public comment~
The-comments received-from this solicitation,-together with experience gained ih:the*implementation:of the*interim backfitting procedures-now-effective, shou1d provide the information needed*to:consider:possible:revisions to the interim procedures-after the comment-period.
The*procedures approved by the*Commission*and published*herein are in the*form of-three draft documents: (1) an NRC Manual Chapter providing general-guidance at* the-: agency* 1 evel, - (2) a: procedure for management of pl ant~specifi c
- backfitting of operating power reactors~resulting from licensing activities, and (3) a procedure for management of plant-specific backfitting of operating power reactors resulting from inspect'ion and enforcement activities.
Dated this / 7-,/; day of April, 1984, at Washington, D.C.
Fo*r the Nuclear Regulatory c*ommission J. Chilk Secretary of the Commission PROCEDURES FOR COMMENT:
DRAFT MANUAL CHAPTER U.S. NUCLEAR REGULATORY COMMISSION NRC MANUAL Vo 1 ume:
0000 Gene-ra l Admi n is t ration Part:
0500 Health and Safety.
15 J CHAPTER 0514 NRC PROGRAM FOR MANAGEMENT OF PLANT-SPECIFIC BACkFITTING OF OPERATING POWER REAC_TORS.
0514-01 COVERAGE L...
This chapter defines* the objectives, authorities, and responsibilities-and~
estab*l i shes basic requirements for actions to be taken in instances where the NRC staff impose_~ __ n_ew plant-specific requirements on a power reactor licensee. This practice is commonly referred to as 11backfitting 11 and occurs when the NRC staff takes a new position *or changes its interpretation of an existi_ng position with respect to a power reactor licensee.
0514-02 OBJECTIVES It is the overall objective of this program to assure that backfitting of operating power reactors is documented, justified and that NRC senior management is responsible for the proper implementation of that program.
The objectives of this program are to eliminate or remove any unnecessary burdens placed on licensees, reduce the exposure of workers to radiation in implementing some of these requirements, and conserve NRC resources while at the same time not reducing the levels of protection of public health and safety. The program should assure to the extent possible that requirements to be issued will in fact contribute effectively _to the health and safety of the public and the common defense and security, and lead to utilization of both NRC and licensee*resources in as optimal a fashion as possible.
- 0514-03 RESPONSIBILITIES AND AUTHORITIES 031 The Director, Office of Nuclear Reactor Regulation (NRR) shall develop,
- maintain, and implement an overall procedure for managing plant-specific backfitting resulting from licensing activities in accordance with this Manual Chapter.
The Director, NRR, shall consult and coordinate with the Director of the Office of Inspection and Enforcement, and the Regional Administrators as appropriate to develop resolutions of proposed plant-specific backfitting on operating reactor licensees that originate within those offices other than NRR.
The Director, NRR, has the authority to make any final detennination on plant-specific backfitting resulting from licensing activities. The Director, NRR, is responsible for assuring that each licensee is officially informed of the existence and structure of the NRC program described in this Manual Chapter.
New licensees shall be informed at the time of issuance of the operating license. Changes in the Manual Chapter or related procedures shall also be described to licensees.
032 The Director, Office of Inspection and Enforcement shall develop, main-tain and implement an overa 11 procedure for mamrni ng pl ant-speci.fic :-
backfitting resulting from inspection and *enforcement activities in accordance with thi_s Manual. Chapter. The Di rector, IE-, sha 11 consult and
- coordinate with appropriate Regional Administrators to. develop resolu-tions of proposed plant-specific backfitting on operating reactor licensees where such batkfi tting is determined to resul:t from....:jnspecti.on
- and enforcement activities and does not involve.a modification to an operating license.
The Director, IE, has_the aut"hority to make any final determination related to such plant.;specific backfitting resulting from and involving inspection and enforcement activities.
033 The Director, Office of Nuclear*Materials *safety and Safeguards, shall consult and coordinate with the Director, Office of Nuclear-Reactor Regulation, to identify proposed plant-specific backfits for a power reactor licensee that may be required in the areas of safeguards and security.
The Director, NMSS, shall assure Office staff performa.nce in
- _accordance with this Manual Chapter.
034 The Regional Administrator of each Region shall consult and coordinate with the Directors of the Offices of Nuclear Reactor Regulation and Inspection and Enforcement on proposed plant-specific backfitting issues for power reactor licensees that involve the Region.
Each Regional Administ'rator shall assure Region Office staff performance in accordance with this Manual Chapter.
0514-04 BASIC REQOIREMENTS.
041 Identifying Requirements The NRC staff is to provide a description of any new staff-proposed requirement.
The description shall state how the* proposal would improve plant safety and must be approved by the appropriate levels of-manage-ment, as specified in the procedures called for by this chapter {0514--
031 and -032), before it is formally transmitted to the licensee~
Such proposals are usually recommended by NRR, NMSS, *IE and the Regions for 1 icensing activities and by IE and. the Regions for inspection *and enforcement activities. -
042 Appeal Process A licensee may choose to appeal a new staff-proposed.requirement to NRC staff management to request that the proposed new requirement be with-drawn or modified.
Licensees may appeal licensing requirements to the Director, Division of Licensing in NRR. - The final decision of the NRC-staff on appeals of licensing requirements wil1,be made b_y-the-Dicector, NRR, i rr*espective of* the source of* the* rec-orfimended requirement.* Appeals of inspection and enforcement requirements shall-be directed"to the* -- -
Regional Administrator. The final aecision of th~_NRC.staff*on appeals of inspection and enforcement requirements will be made by. the Director, I~.
A summary of all app~~J__ineetings shall be prepareq. and pl~ced in_ -
- the appropriate Public Document Rooms.
During the appeal process, con-sideration should be given to why the proP-os.ed re.qui rement is needed to.
a chi eve or maintain an acceptable.1 eve l of. *safety.
043 Cost-Benefit Analysis If, after use of the appeal process, the.licensee notifies the*staff in writing that-it*objects to a new staff-proposed requirement; the staff must assess-the costs and benefits *of the*proposed requirement; The costs-benefit afialysis will-tonsidet,*to.the*extent:pr~ftical and
~~
- applicable, the information required by the Committee for the Review of Generic Requirements {CRGR) in its review of proposed new generic re-quirements.* The required information-as derived-from*section IV.B.*of
_ the CRGR Charter is presented-below: *
- a.
The proposed requirement as it was sent out to.the licensee *
. ~......... -
- b.
Draft staff papers or other underlying staff documents supporting the requirement.
- c.
A brief description of each of the anticipated steps that the 1 i censee must carry out in*, order to complete the requirement should include:
- (1)
Are there separate short-term and long-term requirements?
- (2)
Is it the definitive, comprehensive position on the subject or is it the first of a series of requirements to be issued in the future?
(3)
How does this requirement affect other requirements? Does this requirement mean that other items or systems or prior analysis need to be reassessed?
(4)
Is it only computation? Or does it require or may it entail engineering design of a new system or modification of any existing systems?
(5)
What plant conditions are needed to install, conduct pre-operational tests and declare operable?
(6)
Is plant shutdown necessary?
How long?
(7)
Does design need NRC approval?
(8)
Does it require new equipment?
Is it __ availabl~ for pu.rchas*e in sufficient quantity by the-affected licensee or must such equipmen~ be_d~signed~ What js the lead time for availability?
(9)
May it be used upon installation or does* it need. staff approval befo*re use?
Does it need technical specification c~nges before use?
~
- d.
The following information_should-be provided -by the staff, *wnere.;.
practical: *
(1) A risk reduction assessment performed using a data base and methodology commonly accepted within NRC (for example, similar to that outlined in SECY 83-221). A qualitative assessment of the benefits should be made in lieu of a quantitative assess-ment in cases where it would provide more meaningful insights.
(2)
An assessment of costs to NRC, an assessment of costs to licensees, including resulting occupational dose increase or
- decrease, added plant and operational complexity, and total financial costs~
{3)* A position as to whether the requirement implements existing regulations or goes beyond them.
(4) The proposed method of implementation, along with the con-currence (and any comments) of OELD, on the method proposed.
- e.
The following information should be provided:
- (1) The*basis for requiring or permitting implementatian~by*a*-
given date or on a particular schedule, including sufficient infonnation to demonstrate that the schedules are realistic and provide sufficient time for in-depth engineering, eval-uation, design, procurement, installation, testing; *devel-opment of operating procedures, and~training of operators.
(2)
Schedule for staff actions involved in completion of the requirement (based on hypothesized *effective date of*approval).
(3)
Prioritization of the proposed requirement considered in light of major safety-related activities underway at the affected facility.* The priority of the requirement.shall *be-approved by both the Director of Licensing and the appropriate Regional Administrator and shall be incorporated into a single prioriti-zation plan for each *facility maintained by the facility project manager and available to the licensee. Prioritization guidance and*direction shall :be provided from time to time by the EDO as necessary.
(4)* For a proposed*requirement invo1vtng*reports and/or*record-keeping, a statement of*why such repor-.ting or recordkeeping is*
necessary.
044 Implementation of Requirements L...
A staff-proposed requirement may be issued.Rrior to satisfying the proceaura l steps i nvol vi-ng
- the appeal process* and the -cost-benefi-t:
analysis; *provided the appropriate Office Director detennines that prompt imposition of the requirement is necessary to protect the public.health and safety or the corrnnon defense*and*security; Otherwise, staff-proposed requirements will not*be imposed, -and 'plant=oper.ation * -
- will not be disrupted during the appeal*process;.and;'if the licensee _:
objects in~writing~ until-after the cost-benefit assessment**is-completed and a final determination has been made*by the Director; NRR, *or the Director, IE, as appropriate, that the requirement should be imposed.
~.
045 Recordkeeping and Reporting Each plant-specific backfit requirement will be administratively managed, within the Headquarters office or Region office, using a recordkeeping system that provides for retrieval* at*anJ-time*of
- current status, planned *and accomplished schedules, and ultimate disposition. Office systems shall be compatible with an overall NRC data base managed by NRR and*accessible.to appropriate NRC managers.
The systems shall provide access to*a11-*docufnentation issued or re-ceived by the NRC staff, including requests*, position statements and summary reports.
- 6.,.
046 Exceptions Nothing in this Manual Chapter shall be interpreted as requiring the staff to make plant-specific assessments for requirements that have been reviewed by the CRGR and approved by the EDO unless the EDO determines that significant plant-specific issues were not considered during the CRGR review.
047 References
- 1.
Memorandum dated June 22, 1983, Samuel J. Chilk, Secretary, to William J. Dircks, Executive Director for Operations, COMSECY-83-3 *.
- 2.
Charter of the Committee to Review Generic Requirements, dated June 16, 1982.
0514-05 DEFINITION 051 Staff-Proposed Requirement For purp*oses of this Chapter,* a new staff-proposed requirement includes all those mechanisms used by the NRC staff to set forth regulatory posi-tions requesting compliance by an OL holder that i.nvolve, with respect to that OL holder:- (a) a new interpretation or a change in an existing interpretation of the rules or regulations; or (b} a n~w staff~position or a change in an existing staff position as set.forth'in,-for example, Safety Evaluation_ Reports, Standard Review-P-lan*s, -Regulatory'Guides,... -
_B_ranch TechntcaL P.osttj_ons_J_11s_pection Reports, Temporary Instrtfttions, Inspection Manual Chapters, and official letters
- PROCEDURE FOR MANAGEMENT OF PLANT~SPECIFIC BACKFITTING OF OPERATING POWER REA~\\ORS RESULTING FROM LICENSING ACTIVITIES I.
Introduction and Summary Description of Process Imposition of new or modified requirements-on-licensed facilities must entail proper and thorough consideration for the impact that would result. The establishment of the Conmittee to Review Generic Requirements (CRGR) was a Conmission initiative to better analyze and Ju-sf,-fY tne need for each new requirement to be applied on a generic basis. The eonmission has di retted. the staff. to develop *_a: plan to -
effectively manage backfitting of plant~specific requirements to* - -
commercial power reactors licensed to operate (COMSECY 83-3, dated June 22, 1983). This procedure-describe~ the*mahner*in which the Commission.guidance is to be implemented for licensing matters.
-~: --This procedure provides the NRC internal process for backfitting licens-frig requirements on a plant-specific basis and the method by which licensees may appeal a backfitted licensing requirement.
The scope-,ff-tti1s -proceaure a-pplies to plant-specifjc backfitting of. _ :.*
- license *requirements to operating:corrmerciaT"power reactor-licensees only. Alternative~ for backfit controls for OL ~pplicants and*CP
- holders are-being evaluated,. and will be:issued at a later date.
For purposes of this procedure, a staff-proposed backfi;t licen$e requirement includes a11 those* formal :mechanisms-used by the NRC to-set forth-regulatory positions requesti_ng_ comp.liance by an*OL holder that involve, *with respect :to *that-OL holder: - *(a) a new -- -
interpretation or a change. in an existing* interpretation of the rules or regulations; or {b) a new staff position or a change in an existing staff position as set forth in, for example, Safety Evaluation Reports, the Standard Review Plan, Regulatory Guides, B_ranch Techni ca 1 Positions, and offi cia 1 1 etters.
The backfitting process prescribed by this procedure involves the activities summarized below:
- 1.
identification and development of the backfit licensing requirement, including a* statement of how the requirement would improve safety,
- i.
approval and issuance of the backfit licensing requirement,
- 3.
informal appeal of the backfit licensing requirement by the licensee,
- 4.
conduct of a cost-benefit analysis by the staff in response to a formal licensee objection to a backfit license requirement,
- 5.
prompt imposition of a backfit requirement that is needed to protect the health and safety or the common defense and
- security,
I I.
- 2 "".'
- 6.
administrative control through systematic recordkeeping.
for each and a 11 proposed _backfi ts, to include current status, planned and accomplished schedules, and ultimate disposition.
The staff is to continue to review the costs and benefits of proposed generic requirements in accordance with the CRGR Charter.
Proposed generic issues are to be handled by NRR in accordance with NRR Office Letter No. 39 - "NRR Procedures for Control and Review and Generic Requirements, 11 and NRR Office Letter No. 40, -
11Management of Proposed Generic Issues.
11 The staff is not required to make plant-specific backfit assessments on requirements that have been reviewed by the CRGR and approved by the EDO for backfit unless the EDO detennines that there are significant plant-specific issues that were not considered during the CRGR review.
In addition, Comnission-approved rules containing backfit requirements or NUREG-0737 items would not require plant-specific backfit assessments.
Backfit license requirements are not to be imposed by individual reviewers as part of routine meetings -between toe staff and lice.ns.ees.
- If a backfit requirement is identified in*tne course of-a meeting between the staff and the licensee, the.Project -Manager shall initiate the backfit process* of Secti"on III~ below.
In cas_es wnere the licensee voluntarily accepts*.*the.backfit re*quirement, additional staff review **
is unnecessary and the requirement is documented and r~corded-4n the tracking system.
~
II. Purpose and Objective of Process The procedures provided herein are to provide a uniform and consistent approach to backfi t deci s*-i onmaking,--.to assure effective 1 i censee-staff interchange regarding a backfit licensing matter, and to yield balance between economic and potential safety consequences of backfit decisions.
III. Detailed Process Description A.
Identification of Proposed Backfit
- 1.
A proposed plant-specific backfit licensing requirement
_maybe identified by NRR, NMSS, IE, or the Regions.
- 2.
The staff staff unit identifying a plant-specific backfit licensing requirement shall provide a description of the staff-proposed requirement. The description should include a brief statement of how the proposed requirements would improve safety and the general time frame suggested for implementation.
The description shall also identify the relationship of the new requirement to existing mechanisms used by the NRC to set forth regulatory positions.
- a. -
- Proposed-*ba*ckfit licensing requirements initiated within the NRR*technical.divisions should be approved by technical division management through the Assistant Director level (Deputy Director in DHFS), and forwarded to the appropriate Assistant
- Director*in the Division of Licensing.
- b.
Proposed backfit licensing requirements initiated from organizations external to NRR should receive appropriate management approval and be forwarded to the Director, Division of Licensing.
- c.
Proposed backfit licensing requirements originating within DL should be approved by the appropriate Branch Chief and forwarded to his Assistant Director~
Prior to transmitting the requirement to the licensee, the Assistant Director should initiate a technical review of the proposed backfit licensing requirement~ Technical *reviews supporting a DL-*
proposed backfit will normally b~ made by prganizati.ons external to DL.
If the technical review-of a DL-p*roposed backfit~is handled soley-withifl DL (such as*
by*ORAB), the-Director, DL must app_rove.this review process *.
-d.. The priority of the backfit requi-rement :Shall be approved by both the Director.. of* L°icensing and
- -- the*a__e~ro£!:_iate Regional Administrator and shall *---
be incorporated into a single prioritization plan
. - for each facility, *maintained by the facility
- Project Manager, and av~ilable to the licensee *
.3. -*The**facility*Project Manager-(PM) will be responsible for managing the proposed backfit licensing requirement once it
- has-been received by the Division of Licensing, NRR.
The PM is responsible for confirming that the necessary technical,
.policy, legal and other relevant aspects have been satis-factorily considered by the sponsoring staff unit or augmented as*necessary.* The *PM is also responsible-for assuring that the review.and.processing of the proposed backfit licensing requirement is completed in a timely manner, commensurate with*tne*suggested need for implementing the action. Recordkeeping and reporting is in accordance with*Section-v of this procedure.
- 4.
Proposed backfit licensing requirements will be approved at the Assistant Director level or higher in the Division of Licensing, prior to their transmittal to the licensee. The transmittal package will be prepared in accordance with the guidance for licensing amendment correspondence provided in Section 3.3 of the Project Manager's handbook.
The licensee shall also be informed of the appeal process.
- 5.
Implementation of a backfit licensing requirement will be accomplished by the licensee on a schedule negotiated between the licensee and the PM.
The schedule should be consistent with guidance provided by the sponsoring NRC staff unit and DL management
- B.
Informal Appeal Process
- 1.
- The Division of Licensing wi 11 coordinate a 11 informal appeal activities concerning backfit licensing requirements.
Meetings will include, as.appropriate, representatives of the NRC staff organization sponsoring __ the backfit licen~n~
requirements.
- 2.
Since the* imposftion of plant--specific l_icensing requirements is.the responsibility of the Office of Nuclear Reactor Regulation, all requests for informal appeal ;of proppsed backfit licensing requirements by a licensee~should be directed to the Director, Divisi.oo of li_censing, regardless of the *source of the_ proposed staff requirements (i.e.-, -
- 3.
If the licensee objects-to a~proposed backfit licensing requirement, it shall notify the Director, Division of
- Licensing in writing of its desire for informal appeal meetings with the-staff.~ To resolve the disagreement, the licensee and the staff are to develop, in writing,.
their respective positions and forward these positions to the Division of Licensing.
From these positions, an agenda will be developed containing appropriate discussion items and will be distributed prior to any meeting.
The Project Manager/DL will be responsible for imple-menting this activity including the preparation of a meeting summary.
This activity should follow the guide-lines contained in the Project Manager's Handbook, Section 2.4.10.6.
- 4.
The first stage of appeal meetings will be conducted by NRR management at the Assistant Director, Division of Licensing level. This meeting shall be attended by appropriate licensee representatives and management from the sponsoring NRC organizational element.
The appropriate Assistant Director in the Division of
- s.
Licensing for.the* affected licehsee**w"ill chair-thif --
meeting. If the matter is not resolv.ed at the Ao* lever, a second stage of appeal meetings will be held at the Division Director level, Division*of Licensing.
Continuation of the appeal shall be at the request of the 1 icensee or the sponsoring NRC organizational element* * * -
to the Director, NRR~
The Director, Division of Licensing will chair the second stage appeal meeting. Appropriate NRC managers and licensee rep res en tat i ves wi 11 *attend.
- 6.
During the appeal process, consideration will be given as to why the proposed requirement is needed to achieve or maintain an acceptable level of safety.
- 7.
lt 0 i~ anticipated that NRC pa~ticipants at*the*app~11*
meetings will include management representatives from all NRC offices having a legal and technical int~rest in the backfit licensing issue. A SU!D111ary rep6r: * :-. :--- ~--
wi 11 be pre pa red by the Project *Manager fo 11 owi nf each meeting and distributed to all p&rticipants in the meeting, and-will be plated-in the Public -
Document Room.
C.
Cost-Benefit Analysis
- 1.
If,*after use of the informal appeal process, i-.
litensee notifies* the Director, NRR in writinc ~~-at it objects to a proposed backfit licensing requ~~e-ment, the NRC staff will *assess the costs and benefits of the prop6sed requirement. *such an assessment will include qualitative *and quantitative**
factors as appropriate.
The cost-benefit analysis* --
- is initiated by a*directive from the Director, NRR~---_
- 2.
Any*assessment of.costs and benefits of backfit licensing requirements which may result from the appeal process described in *section B above should
~onsider, to the extent *practical *and applicable, the information described in NRC Manual Chapter 0514-04.
The cost=benefit assessment may be performed by the NRC staff or an outside contractor, as*determined by.NRR management in consultation with the NRC staff unit sponsoring the backfit _
licensing requirement~
This*assessment will be coordinated with the NRR Division of Safety Technology and.submitted to the Director, NRR.
- 3.
The results of the cost-benefit analysis will be transmitted to the licensee for comment and to the Di rector of NRR. *
- 4.
The Director, NRR will review the results of the cost-benefit analysis, the licensees cormnents on the cost-benefit analysis, and all other information developed during the appeal process and reach a conclusion* on the matter.
- 5.
The -results of the Director's decision will be transmitted to the licensee.
- a.
If the Director's decision is that the backfit license requirement is not appropriate, the matter is considered closed.
- b.
If.the Director's decision is that the backfit license requirement is appropriat~,
the licensee will be inf~rmea-of the decision by letter and afforded the opportunity to confonn to the decision.
If the licensee fails to respond or refuses to voluntarily implement the L
requirements, the Di rector, NRR may initiate the implementing Qf _the* requirement -
by* Order, as described. in Section IV, below.
- c.
A copy of the cost-benefit analysis, the licensee's comments, and the NRR Director's decision will be placed in the Public Document Room with the Project Manger/DL having full responsibility for completeness.
IV.
- Implementation of Approved Regui rements A.
Implementation of approved backfit license requirements is to be in accordance with Section III.A of this procedure if there is no licensee objection to the requirement and prompt imposition of the requirement is not necessary to protect public health and safety.
B.
A staff-proposed requirement may be imposed without following the procedural steps of Sections III.Band III.C regarding the appeal process and cost-benefit analysis if the appropriate Office Director determines that prompt imposition of the requirement is necessary to protect the public health and safety or the common defense. and security.
Imposition is accomplished by an Order.
- v. 1.
The proposed*backfit*litense*requirement will be prepared and reviewed as described in Section III.A of this procedure.
The Safety Evaluation Report (SER) accompanying the proposed requirement must substantiate the need for prompt imposition.
The SER must also provide a basis for requiring plant shutdown (if necessary).* * * *. *
- 2.
The Division of Licensing, NRR, will prepare the appropriate Order and obtain the necessary legal review and technical jastification from-other NRC offices, as appropriate.
- 3.
The Order shall be issued to the licensee upon approva 1 by the Di rector, NRR. **
- 4.
When the staff-proposed requirement must be promptly imposed to protect the health and safety of the public, the*EOO*and the Commission shall be notified by the Director,*NRR, subsequent to the action.
( Sect, on* il I of the CRGR Charter provides similar.direction for-*
generic requirements).
C.
A staff-proposed requirement may be imposed subsequent_tc;, the informal appeal and cost-benefit analysis p-rocess ?if the NRR Office Director determines the requi~ement-is. needed to*
protect the public health and safety; or the common defense*--
and security, and the licensee refuses to voluntarily implement the requirement~ --As*in*item*IV.B*above; imposition is accomplished by an Order *
-R~cordkeeping and Reporting*
- _ : *_ _ _ _
The Project Manager/CL has the responsibility to ensure that each backfit licensing requirement is adminstrativeJy managed.
Specifically, the Pr6Ject-t*1anager wifr *be-requfred to submit to the Director, Division of Licensing, a monthly status report which*describes the proposed staff requirement, the licensee's posi'tion, and the stage of.appeal (if an appeal is pending).
The Operating Reactors Assessment Branch,-
Division of Licensing will establish a new table to be added to
~UREG-O748, "Operating Reactors Licensing Actions Summary, 11 which will identify the scheduled milestones associated with each backfit issue. The information management*system will*contain current status; projected completion dates for each milestone~ and the ul_timate disposi-tion of completed actions.
Each backfit licensing action will *have an assigned code.
The code will reflect the NRR Division of Licensing organizational element responsible for*the activity. Specifically:
Licensing Safety Assessment Operating Reactors - 83 83 83 XXX XXX XXX The chronology will change on January 1st of each year.
The NRR data base will be compatible with an overall NRC data base managed by NRR and accessible by appropriate NRC managers.
The system shall provide access to all documentation issued or received by the NRC staff, including transmittal packages, requests, position statements, and suJTDTiary reports
- PROCEDURE FOR MANAGEMENT OF PLANT-SPECIFIC BACKFITTING OF OPERATING POWER REACTORS RESDLTING-~ROM.INSPECTION AND-ENFORCEMENT ACTIVITIES I.
- Introduction and Summary Description of Process The imposition of new or modified requirements on* licensed facilities must entail proper and thorough consideration for*the impact that would result.
The establishment of the Corrmittee to Review*Generic Require~
ments (CRGR) was a Commission initiative to better analyze and justify the need for each new requirement to be applied on a generic basis.
The Commission has directed the staff to develop a plan to effectively manage backfitting of plant-specific requirements to commercial power reactors licensed to operate (COMSECY-83-3, dated June 22, 1983). This procedure describes the manner in which the Commission guidance is to be implemented for Office of Inspection and Enforcement activities.
This IE procedure applies only to plant-specific backfitting by imposition of Inspection and Enforcement program requirements at commercial power reactors with operating licenses. Alternatives for backfit controls for OL applicants and CP holders are bei_ng evaluated, and will* be issued at a later date.
For purposes of thi°s procedure, a staff-proposed b_ackfit requirement includes all.those mechanisms used by the NRC to set forth-regulatory**
positions which would require compliance by an OL hold~r that~nvolve, with respect to that OL holder:
(a) a new interp_retatfon or a change in an existing interpretation of the rule~- or regu:f;.tions; or-(b) ~ new staff position or a change in an existing staff position as set forth-
- n, for example*, Safety Evaluation Reports, the Standard Review Plan, Inspection Reports, Temporary Instructions, Inspection Manual Chapters, Regulatory Guides, Branch Technical Positions, official letters and other approved documents.. *sackfit requirements are not to be imposed by individual staff members as part of routine meetings or communications between the staff and licensees or during inspections.
The backfitting process prescribed by this procedure involves the activities summarized below:
- 1.
identification and development of the backfit requirement, including a statement concerning how the requirement would improve safety,
- 2.
approval and issuance of the backfit requirement,
- 3.
provisions for informal appeal of a backfit requirement by the
- licensee,
- 4.
conduct of a cost-benefit analysis by the staff in response to a formal licensee.objection to a backfit requirement,
I. 5.
prompt issuance of a backfit requirement that is needed to protect the public health and saf~ty or the common defense and security,
- 6.
administrative control through systematic recordkeeping for each and all proposed backfits, to include current status, planned and accomplished schedules, and ultimate disposition.
II. Purpose and Objective of Process The procedural steps provided herein are intended to provide a uniform and consistent approach to backfit decision-making, to assure effective licensee-staff interchanges regarding backfit matters, and to yield a balance between economic and potential safety, environmental, and other consequences of backfit decisions
- III. Detailed Process Description A.
Identification of Backfit
- 1.
Backfit requirements originating from_.. IE program activities*
may be*of two types: *1) proposed-or implemented requirements related to licensing function~-, and 2) proposed or-implemented requirements related to inspection and enforcement functions.
a)
Plant-specific backfit requirements originatiRg.:-within.
the Regional Offices.or IE and whtch ar associated with licensing matters will be r~ferred -to NRR and*proc~ssed_. -
jn* accordance with the.procedure {paragraph III.A*;2.) -
forbackfitting licensing requirements.
b)
Plant-specific backfit requirements originating within the Regional Offices* or IE and which are associated with inspection or enforcement matters will be subject to the Appeal Process described in Section III.B.
- 2.
IE Bulletins are subject to CRGR review procedures and, as such, are outside the scope of this procedure.
- 3.
The Region staff unit identifying a proposed plant-specific backfit shall provide a written description of the require-ment.
The description should include a brief statement concerning how the proposed change in staff position would result in an improvement in safety. The description shall be prepared by the identifying organizational element, and reviewed and approved as necessary for issuance by the Regional Administrator to the licensee. The licensee shall also be informed in writing of the Informal Appeal Process.
- 4.
The 1 i censee sha*i 1 -res pond in writ fog to the Regional Administrator concern.i ng the proposed new or changed staff position. If the licensee accepts the position, implemen-tation *of the*position shall *be accomplished by the licensee on a schedule negotiated between the licensee and the appro-priate Regional Division Director. If the licensee appeals the proposed backfit, the Regional Administrator shall initiate th~_I~f~Y'!!l~J_Appe~J. P~ocess described in Section III.B.
- 5.
New proposed licensing requirements may arise from the Appeal Process described in Section III.B. Such new requirements
- shall be treated *in-accordance with Section III.A.l.(a) above or CRGR procedures as appropriate
- B.
Informal Appeal Process
- 1.
Informal appeals for plant-specific backfit requirements, which are considered necessary for licensing review functions, shall
-- --be7nacco-rdance-w,*tl1 the procedure for backfitting licensing requirements.
- 2.
If a licensee believes that new requir-ements-are proposed or have bee~ imposed through implementation of the NRC Inspection and Enforcement Programs, the licensee may appeal. The licensee must notify the Regional Admi-nistra'1/2-or in-writing of its desire to appea 1. The appea 1 proc-e_ss wi 11 be conducted as follows:
- a.
The licensee and the appropriate Regional staff are each to formulate a position statement on the issue and forward this to the Region Projects Division Director or equivalent.*
- b.
From these *position *statements; the appropriate Region Projects Section Chief. or equivalent is to prepare and distribute a meeting agenda containing appropriate dis-cussion items and schedule a meeting.
The agenda for the initial meeting and any subsequent appeal meetings wi 11 be di s*tri buted to *appropriate Region, NRR, NMSS and IE staff, and the licensee at least one week prior to the meeting.
If considered appropriate, technical support of*other organizational *elements in the appeals process should be arranged.through the Division of Licensing, NRR.
- 4 "".
- c.
The first-level appeal meeting will be conducted at the Region Projects Division Director-level. The meeting will be chaired by the Region Projects Division Director and attended by appropriate Region technical Branch Chiefs and Division Directors. Coordination prior to the meeting will be conducted with the Director, DQASIP, IE.
If the issue is not resolved, the appeal process will escalate to the next level on the request of the licensee.
- d.
- A second-level appeal meeting, if requested, will be arranged by the responsible Region Projects Branch Chief and will be chaired by the Regional Administrator or the Deputy Regional Administrator. Coordination prior to the meeting will be conducted with the Director, IE.
- e.
During the appeal process, consideration will be given to why the proposed requirement is needed to achieve or maintain an acceptable level of safety.
- __ f.
Withtn one __ week following eacn appeal meeting_described above, a report of the results of-that meeting (including
. supporting docume*ntation) will be prepared and distributed to those addressees who received the meeting agenda for the first-level appeal meeting and will pe plac-ed in the Pub 1 i c Document Room.
- g.
L ic:ensee representatives at these meetings shoul d*-1:>e of comparable management level to those expected to attend _
from NRC.
IE may send appropriate-level representatives to any of the meetings at its discretion.
- h.
Any and all backfit requirements agreed to by*the licensee at any stage of the appeal process will be transmitted by letter to the licensee from the Regional Administrator.
- i.
It is expected that this appeal procedure will be invoked infrequently and most routine discussions will be held in accordance with normal IE procedures.
C.
Cos*t-Benefit Analysis
- 1.
If, after use of the informal appeal process required by Section III.B.1 or III.B.2 above, a licensee notifies the staff in writing that it objects to the backfit requirement and provides the basis for the objection, the NRC staff must assess the costs and benefits of the proposed requirement.
- a.
If the matter involves a licensing backfit requirement; the cost-benefit analysis will be in accordance with*
the NRR procedure for cost-benefit analysis. However, prior to commitment of Regional or IE Headquarters resources, concurrence of the Regional Administrator or the Director, IE, must be obtained.
- b.
If the matter involves a backfit requirement associated with IE inspection or enforcement activities, the following process will be followed:
i)
The cost-benefit analysis will be initiated by a directive from the Director, IE
- ii) The cost-benefit analysis will consider, to the extent practical and applicable, the information as described in NRC Manual Chapter 0514-04. The*
cost-benefit analysis will be performed by the NRC staff with the assistance of consultants if deemed necessary by the IE o~_ li_~gion manag~r. assigne~to..
direct the analysis; A report on the results of*
the analysis will be provided to the Director, IE, and the licensee, with copies ~istributed to those*
addressees who received the meeting agenda for the-fi rst-level appeal meeting.
~
iii) The Director, IE, will-r-eview the results of the.. - -
cost-benefit analysis, the licensee's comments on" the cost-benefit analysis, and all other informa-tion developed during the appeal process and reach.*
a conclusion on the matter.
iv) The final decision will be provided to the licensee by letter from-the-Director, IE, with copies dis-tributed to those addressees who received copies
- of the cost-benefit analysis report. The cost-benefit analysis, the licensee's comments, and the Director's decision will be placed in the Public Document Room.
IV.
Implementation of Approved Requirements A.
lmpleme-nta.tfon-of approved licensing batkfit requirements will be in accordance with the NRR procedure for implementation of approved requirements.
- B.
Implementation of approved backfit requirements associated with IE inspection and enforcement activities will be in accordance with the following procedures:*
- 1.
The priority of the backfit requirement shall be approved by both the appropriate Regional Administrator and the Director of Licensing and shall be incorporated into a single prioritization plan for each facility, maintained by the facility project manager, and available to the licensee.
- 2.
All backfit requirements, including implementation schedules, agreed to by the licensee will be documented by letter to the licensee from the Regional Administrator with appropriate distribution for communications to the licensee.
- 3.
All backfit requirements, including implementation schedules, not agreed to by the licensee will be imposed by Order ofthe Di rector, IE.
V.
Recordkeeping and Reporting A.
Each plant-specific backfi t requirement asso~iate_d )'~th IE inspec-tion and enforcement activities will be administrat~;ely managed-within a recordkeeping system that provides for retr,~val~at any.
time of current status, planned and accomplished s'-che:iul es, and ultimate disposition, in accordance with established IE-and
- Regional office procedures.
~
.:..