DCL-89-155, Response to Re Backfitting of Nuclear Power Reactors
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Pacific Gas and Electric Company 77 Beale Street James D. Shnr l
San Franasco. CA 9410f Vice Presloc"....
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i u A W at t th June 7, 1989 PG&E Letter No. DCL-89-155 l
Edward L. Jordan, Director i
Office for Analysis and Evaluation of Operational Data j
Mail Stop HBB 3701 U.S. Nuclear Regulatory Commission l
Hashington, D.C.
20555 1
Re: Docket No. 50-275, OL-DPR-80 l
Docket No. 50-323, OL-DPR-82 Diablo Canyon Units 1 and 2 Response to "Backfitting of Nuclear Power Reactors" -
l April 7, 1989 Letter t
l Cear Mr. Jordan:
Pacific Gis and Electric Company (PG&E) has reviewed the questionnaire presented in your April 7, 1989 letter concerning the conduct of the backfit process and has no specific comments. PG&E has internal procedures that provide for the management and evaluation of backfit issues. Modifications made to PG&E nuclear i
facilities, specifically to Diablo Canyon Power Plant (DCPP) Units 1 and 2, that are primarily implemented in response to NRC directives, such as those listed in the attachment to your letter, are evaluated in accordance with these procedures.
To date, PGLE has not filed backfit claims such as discussed in NRC Hanual Chapter 0514.
PG&E proactively responds to issues imposed through new NRC regulations or NRC regulatory staff positions interpreting these regulations and evaluates these issues for applicability to its nuclear facilities, both DCPP and Humboldt Bay Power Plant Unit 3.
If action is required, PG&E has taken such actions as necessary.
Additionally, your April 7,1989 letter requested estimates of i
specific implementation costs for the generic letters and bulletins listed. PG&E has reviewed this list and provides the following response. The listed costs rep"esent PG&E's low estimates, since costs to implement modifications associated with generic letters and i
bulletins 6.e not maintained for each specific generic letter or l
Oulletin.
1.
NRC Bulletin 88 This bulletin was not applicable to PG&E; therefore no costs were incurred beyond the initial review costs to determine non-applicability.
I 2.
NRC Bulletin 88 The costs associated with this bulletin have three components; analysis, testing and modification.
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PDR COMMS NRCC CORRESPONDENCE PDR
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E. L. Jordan June 7, 1989 PG&E Letter No. DCL-89-155 The contract costs for these corJ e9nts were:
Analysis
- $360,000 Testing
- $115,000 Plant Modification
- $633,000 Note:
Internal PG&E. costs, such as manhours expended and overhead are not included in these figures.
3.
NRC Bulletin 88 The cost associated with this bulletin includes testing and internal PG&E costs and is estimated to be approximately-
$4,000.
4.
Generic Letter 88 This generic letter was not applicable to PG&E; therefore no costs were incurred beyond the initial review costs to determine non-applicability.
5.
Generic Letter 88 The plant modification cost resulting from this -
generic letter was approximately $200,000. This cost included design and fabrication of the plant modifications. Hanhours expended for preliminary analysis and post-modification testing are not included.
Kindly acknowledge receipt of this material on the enclosed copy of this letter and return it in the enclosed addressed envelope.
Sincerely, '
a '/ s s
. D. S 'ffer cc:
J. F. Colvin (NUMARC)
J. B. Martin M. M. Mendonca P. P. Narbut H. Rood B. H. Vogler CPUC Diablo Distribution
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..o 2-7 eye.2 oo June 6, 1989 Mr. Edward L. Jordan, Director Office for Analysis and Evaluation of Operational Data J
U.S. Nuclear Regulatory Commission Washington, D.C.
20555
References:
- a. License No. DPR-18 (Docket No. 50-244)
- b. NRC/AEOD Letter from E.L. Jordan, dated April 7, 1989.
Dear Mr. Jordan:
Reference b. requested a response to a questionnaire on the backfitting process.
As a member and participant of the Nuclear Utility Backfitting Group (NUBARG), we endorse the attached letter from N.S.
Reynolds (BCP&R), to E.L.
Jordan (NRC/AEOD),
dated May 19, 1989, which provided comments regarding the issues raised in your communication.
In
- addition, you requested information regarding implementation costs for selected Generic Letters and Bull'etins issued during 1988.
Based on a brief review of our plant-specific cost experience, attached is a listing of the estimated and/or projected costs resulting from 1988 generic issues which are characterized as "backfits".
As shown in Attachment II, response to some issues has resulted in considerable allocation of resources not fully reflected in NRC estimates.
Although these values do not include a detailed accounting of all paperwork research, design, and construction costs (both allocated and projected), they are a reasonable estimate which we hope will prove useful in evaluating impact of future generic requirements.
Very truly yours,
$'y < 0 Robert C. Mecr dy General Manager Nuclear Production JPO\\045 h/$"
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xc: U.S. Nuclear Regulatory Commission Attn: Document Control Desk Washington, D.C.
20555 Allen R. Johnson (Mail Stop 14D1)
Project Directorate I-3 Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Region I 475 Allendale Road King of Prussia, PA 19406 Ginna Senior Resident Inspector
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ATTACHMENT I e
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- =+ = s ocacce om May 19, 1989 mau.o w tom w vouceasm oosiansano Mr. Edward L. Jordan 1
j Director, office for Analyr,is and Evaluation of operatior,a1 Data i
U.S. Nuclear Regulatory Commission
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Washington, D.C.
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AEOD Questionnaire Regarding Backfittine, dated Anril 7.
1989 2
Dear Mr. Jordan:
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submits the enclosed response to the AROD survey on theTh i
i backfitting process that was transmitted to licensees on April 7, 1989.
licensees on this important subject.We sincerely appreciate AEOD's in j
While NUBARG, an organization composed of 27 licensees (listed in the attachment hereto),
the individual members of NUBARG Will provide additional j
i specific information in response to the questionnaire.
a As a general observation, NUBARG believes that the backfitting rule has had a positive impact in bringing about more j
effective NRC management of the backfitting process.
j Nevertheless, we believe there is room for improvement.
i discussed in the enclosed response, NUBARG offers the following As j
ebservations and suggsstions, among others:
f 1.
In some instances (R.,.g, Part 20 revisions and i
i severe accident initiatives), the perception has been created by some members of the Commission i
and Staff that the backfitting rule may be j
ignored if it poses an obstacle to the l
commission "doing the right thing."
Wa submit that such signals, even if unintended, mislead the Staff rank-and-file and NRC licensees as to the commission's support for and belief in the rule, and thus undermine the goal of regulatory j
stabilit achieve.y which the rule was intended to 4
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l Mr. Edwnrd L. Jordtn
.May 19, 1589 Page 2 2.
There is a need for more effective controls on the ganarig backfitting process.
Generic 1
1 communications such as Bulletins and Generic Letters are being used with greater frequency and in some cases as a substitute for rulemaking in order to initiate new licensee programs or establish ex regulations.panded interpretations of the The drain on licensee resources has been substantial.
To correct this the NRC should (a) insist upon the proper use o,f the rulemaking process to initiate new agency directives, (b). ensure detailed review of the regulatory basis and backfittin all new generic communications,g analysis for and (c) insist upon more accurate estimates of the burden of addressing the generic communication, including the burden of any continuing licensee actions.
3.
The threat of Staff retaliation against a licensee ( m, lowering SALP ratings, withholding licensing authorization) for pursuing its backfitting rights is a serious impediment to the use of the rule.
It is unrealistic to expect licensees to report any threats to NRC Staff management, given that such threats likely will come from Staffers with whom l
the licensen must continue to deal.
Nevertheless, NRC Staff management has expressed the desire to be informed of any such threats.
-j In this light, we recommend that the NRC t
establish a process by which licensees ma concerns about retaliation in confidanea.y raise 4.
To standardize the application of the rule, AEOD should continue to conduct periodic training of t
the staff, including the Regions, on the implementation of the backfitting rule.
The 4
training should continue to emphasize the 3
identification of backfits, the preparation of regulatory analyses under Section 50.109, the evaluation of licensee appeals, and concerns with retaliation.
5.
Despita the roles of the EDO and AEOD, there is a diffusion of responsibility within'the Staff on backfitting.
We suggest that backfitting coordinators be designated for NRR and OGC to ensure consistency in implementation of the rule.
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Mr. Edward L. Jordan M3y 19, 1989 Page 3 6.
We support AZOD#s recommendation that controls be established to provide independence in the review of licensee backfitting appeals.
It often appears that licensee claims and appeals are handled in the first instance by the same i
NRC personnel responsible for the position being reviewed.
A mechanism for independent review could correct this inherent bias.
7.
Manual Chapter 0514 should be clarified, among other things, (a) to ensure the proper use of j
information requests under Section 50.54(f) and i
Section 182 of the Atomic Energy Act, (b) to preclude improper use of revised licensing criteria in the review of license amendment requests and other facility changes for an operating plant, and (c) to make clear that the backfitting r'11e applies to new Staff positions that reflect an evolving understanding of technical issues.
Detailed discussion of these and other comments is provided in the enclosed response.
I As you are well aware, the backfitting rule is the single most important tool the NRC has to ensure that new requirements truly improve overall plant safety and do not squander licensee and Staff resources.
will thus further the public interest. Careful adherence to the backfitting rule NUBARG urges the NRC to reaffirm its commitment to the sound policies underlying the rule.
Again, we appreciate the opportunity to provide input on this important subject.
Should you have any questions regarding our co=ments, please feel free to call.
Sincer y,
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- Nichola, S.
synolds Counse) o th e Nuclear Utility Bac' itting and Reform Group Enclosure
= = * * - - -
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m RESPONSE To AEOD SURVEY ON NRC BACKFITTING PROCESS prepared by Nuclear Utility Backfitting and-Reform Group May 19, 1989 I.
INTRODUCTION The Nuclear Utility Backfitting and Reform Group ("NUBARG")
submits the.following response to the questionnaire-transmitted to licenseen on April 7, 1989 by the Office for Analysis and Evaluation of operational Data ("AEOD").
In Section II below, i
NURARG provides ganaral comments on the NRC backfitting process, and in Section III responds to the four specific questions presented in the AECD survey.
At the outset, NURARG wishes to commend the NRC for its conscientious work in the development of the backfitting rule and the associated Manual Chapter.
Our comments in response to the AEOD survey are offered in the interest of improving the process and are not meant to be critical of any individual members of the Commission or Staff.
II.
crWERAL COMMENTS There are three overriding concerns that NUBARG wishes to discuss before proceeding to more specific comments.
These relate to (1) the impression conveyed by some members of the Commission and Staff that it may be appropriate in certain cases to ignore or waive the backfitting rule, controls on.the generic backfitting proces(s) the need for tighter 2
and (3) concerns with Staff retaliation when a licensee exerc,ises its backfitting rights.
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- l A.
NRC Policy On Adherence To Rule In at least three instances over the past several months, the NRC has suggested that it may in effect ignore Section 50.109 if it poses an obstacle to the NRC's "doing the right thing."
In connection with a draft final rule revising Part 20, the Staff recommanded that "the Commissio to this rulemaking proceeding."g suspend application of i
5 50.109 In connection with the severe accident resolution plan (SECY-88-147) and the Mark I containment 4
initiatives (SECY-88-206), the Commission and senior NRC Staff have indicated that, even if a proposed requirement does not satisfy the standards of Section 50.109, it should still be brought to the Commission's attention for consideration on a i
case-by-case basis if it would alter the " risk profile of the plant," adjust the " balance of.
. prevention and mitigation" or reduce " uncertainties in our understanding."
t In our view, such an approach of Ad has departures from the rule would not be wise as a matter of regulatory policy.
i The primary purpose of the backfitting rule was to establish binding i
object'.ve standards by which to assess the need for new requirements and thereb the regulatory process.y restore predictability and stability to Exceptions to the rule on an 14 h22 basis threaten to undermine these policies and ultimately could swallow the rule.2 Ultimately, if such a course were followed routinely, it would spell the return of the same undisciplined decisionmaking that led to the need for the rule in the first i
place.
Furthermore, reliance on highly subjective factors such as " reducing uncertainties in our understanding" in place of the objective standards of Section S0.109 would have the same j
deleterious effect.
For these reasons, NUBARG urges the Commission to adhere to i
Section 50.109 in considering proposed'backfits.
The backfitting rule does not and cannot stand as an obstacle to needed safety j
i=provements, since by its cwn terms it does not apply to actions I
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SECY-88-315, dated November 4, 1988, at 7.
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As the D.C. Circuit has recently said:
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(I]t is elementary that an agency must adhere to its own rules and regulations.
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departures from those rules, even to achieve
'i laudable aims, cannot be sanctioned.
. for therein lie the seeds of destruction of the j
orderliness and predictability which are the hallmarks of lawful administrative action.
i R2uters Limited v. Federal Communications Commission,
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F.2d 946, 950 (D.C. Cir. 1986).
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necessary to ensure compliance with regulatory requirements or to provide " adequate protection" of the public health and safety (10 C.F.R. i 50.109 (a) (4)).
Moreover, it does not affect the NRC's authority under 10 C.F.R. I 2.202 to take action to revoke, suspend or modify a facility license.
Even if a backfit is not shown to meet the standards of the rule, this does not mean that the Commission's hands are tied.
The Commission may still pursue other alternatives such as (1) issuing a policy statement rather than a binding regulation, (2) issuing a guidance document (maga, a Regulatory Guide), or (3) working with licensees to develop initiatives to address the issue.
Such options are clearly preferable to ad has departures from the rule which could send a message from the Commission to its staff that it is acceptable to i erode the stability of the process. gnore the rule and would thus B.
The Generie Backfittina Prc7331 During 1988. the NRC issued 11 Bulletins (with six supplements) and 20 Ceneric Letters.
This compares with only two Bulletins (with no supplements) and 16 Generic Letters during 1987.
Though not legal requirements, NRC generic ccumunications may well result in a substantial expenditure of time and resources by licensees to address concerns identified by the NRC and to respond to the Staff's requests.
In response to AEOD's survey, NUBARG members will provide cost information on meeting various NRC Bulletins and Generic Letters issued during 1988.
A review of some licensee estimates indicates that upwards of $2 million may be spent per unit in addressing a single generic communication of significance for the plant.
Recent NRC cost estimates for responding to a proposed Generic Letter on testing of Motor Operated valves indicate costs in the range of $6 million per unit.
Given these figures, it is evident that the burden of addressing NRC generic communications can approach or even exceed that of meeting some regulations.
While. generic communications such as Bulletins and Generic Letters are not binding legal requirements, they may be the cause of backfits if the Staff ultimately insists upon new licensee programs or imposes revised interpretations of the regulations.3 For these reasons effective backfitting controls on generic communications mus,t be maintained if the backfitting rule is not to be circumvented.
To maintain such controls, NUBARG recommends the following:
1/
The Commission recognized this in promulgating the 1985 backfitting rule.
See 50 Fed. Reg. 38097, 38102 (1985). -See also Manual Chapter 0514 at 5 053.
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Use er puinmakine.
Phile generic communications may be a useful way to inform licensees of possible generic concerns or for providing guidance on how to meet more general regulations, it is essential that the NRC not allow them to be used to circumvent the rulemaking requirements of the Administrative Procedure Act.
Generic communications should not be used in place of the rulemaking process to initiate new licensee programs or ctherwise expand on the existing regulations.
That is the proper function of rulemaking.
Thus the regulatory basis for all proposed generic communications should be carsfully scrutinized by the Staff and CRGR, with appropriate legal review by OGC.
Generic communications should be based upon and reflect only aviatina regulatory requirements.
process generally should ha invoked.Otherwise, the rulemaking 2.
Information Reauants.-
Similarly, CRGR should ensure the proper use of information requests under Section 50.S4(f) and Atomic _ Energy Act i 182.
As we have noted elsewhere, new Staff positions interpreting the regulations and major new programs should not be initiated under the guise of information requests.
See NUBARG 1etter to Mr. Jordan, dated Fabruary 7, 1989.
In the I
1985 backfitting rule, the Commission made the judgment that if an information request is particularly burdensome (gtgt requires extensive new analyses) or if it reflects new Staff interpretations of the regulations, it is to be treated as a backfit and the NRC should justify the request with a Section 50.109 analysis rather than the less detailed justification under Section 50.54(f).
See 50 Fed Reg. 38097, 38102 (1985.
Nevertheless, information requests are still being use)d to establish new Staff positions.__A recent example is Generic Letter 89-06 on Safety Parameter Display Systems ("SPDS"), which reflects substantial new positions on what an acceptable SPDS should contain.
3.
Reculaterv Analvmen.
All regulatory analyses for generic communications should provide accurate estimates of risk reduction as well as the costs and burden of addressing the l
Staff's request.
From a review of l
following weaknesses appear common:past regu2 r 'ary analyses, the only reflecting the initial cost of preparing a response rather than the actual direct cost l
of performing any necessary reviews and
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taking other actions.
- See, e.g., Generic Letter 89-06 regarding SPDS criteria (estimated 25 person-hours for research, analysis and preparation of response).
Moreover, substantial continuins costs of new analyses or actions, such as long-term engineering support, are often ignored, despite the requirement of Section 50.109(c)(5) that " Installation and i
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continuing costs associated with the backfit" be considered.
Without an accurate estimate of the full costs of completing the actions requested in a generic communicacier -
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i licensees may be at risk if the prudwice of expenditures 1s questioned by.public service commissions.4 In addition, unless the NRC provides accurate estimates of costs and i
burden, OMB review of new requirements and i,
information requests will not be meaningful.
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Failing to provide adequate, or any, i
quantification to support conclusions'on risk reduction and cost justification.
NRC guidelines indicate that quantification
-should be provided to the extent available, See NUREG/BR-0058, Rev. 1, " Regulatory j
i Analysis Guidelines of the U.S. Nuclear Regulatory commissiona (May 1984);
NUREG/CR-
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l 3568, "A Handbook.for Value-Impact Assessment" (December 1983).
Yet many
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regulatory analyses fail to provide any meaningful guantification of the safety
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benefit or otherwise provide a technical l
basis for assumptions and conclusions.
(For i
an example, see the regulatory analysis for j
the proposed rule.on degree requirements for i
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SRos and NUBARG's comments in that o
proceeding, dated March 24, 1989.)
i Failing to allow sufficiently for differences in facility type, design, location, age, etc.
i For example, Generic Letter 87-02 regarding seismic qualification of equipment in 4
i operating plants did not allow for the fact j
that some of the plants covered are located
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in regions of demonstrably low seismicity (e.g. peninsular Florida),
i Considering speculative or improper factors such as " improved plant availability" or i
1 averted accident costs. - NUBARG has taken j
issue with the NRC's consideration of such i
i if It may be useful for the NRC to provide two sets of cost estimates, one that assumes that the licensee is not significantly affected by the issue, and one for those licensees who are significantly affected by the issue and i
nust initiate new actions in response to the generic l
communication.
Experience shows that generic communications
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do not have the same impact on every licensee, f
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j factors in connection with the proposed i
maintenance rule.
See NUBARG comments dated
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February 27, 1989, at 14-18.
In brief, we believe it improper to consider " improved plant availability" because this factor is i
unrelated to public health and safety and is highly speculative.
Consideration of averted onsite accident costs is improper because, i
among other reasons, licensees cannot avoid i
the premiums for property damage insurance that is designed to cover any accident costs that are of significance to public health and safety.
While the NRC may wish to examine j
such factors for informational purposes, we believe that it would be improper for the NRC i
to rely upon such factors as a significant i
justification for any particular backfit.
j To help ensure that generic considered for backfitting purpos. communications are properly es, the NRC should, to the maximum extent possible, make proposed generic communications and i
the underlying justifications available for public input prior to i
issuance.
This practice has been followed in several instances j
recently and has, in our view, proved beneficial for all j
concerned.
At a minimum, the NRC should routinel regulatory analyses or other justifications (e.g.y make the i
Section l
50.54(f) justifications) available with the generic communications.
These supporting documents aid licensees in j
better understanding the staff's request.
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C.
Retaliation
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Several instances have apparently arisen in which Staff
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members have threatened retaliation against a licenses that i
exercised or stated an intention to exercise its rights under the l
backfitting rule.
These matters appear to have been ultimately resolved in a reasonable manner, so that it vauld serve no j
purpose at this point to identify the specific cases or the parties involved.
Nevertheless, by way of illustration, retaliation has occurred in the following ways:
Suggestions by a staff member that there j
would be a substantial delay in the issuance j
of the operating license for a facility if the licensee filed a backfitting claim on an outstanding issue (an issue ultimately j
resolved in the licensee's favor after substantial expenditure of resources).
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Threats of lower SALP ratings if the licagsaa j
challenged a Staff position as a backfit.
Critical comments to licensees from NRC inspectors and reviewers whose positions were challenged on backfitting grounds.
Denial of restart approval until the licensee j
made certain control room modifications.
Because the economic and political impacts of lowered SALP ratings or further plant downtime are so severe, any threatened retaliation by NRC Staff members can all but destroy the valuable protections of the backfitting rule.
The potential severity of this matter demands it be given special attention by NRC management.
In particular, NUBARG recommends the following actions:
1.
AEOD's backfit training of the Staff should emphasize that retaliation of any nature is j
improper.
In this connection, the training should also emphasize the provisions of Section 50.109(d), which prohibits the NRC from withholding any licensing action (such as plant construction or operation and license amendments) during the backfit evaluation and appeal process.
As Section 045 of Manual Chapter 0514 makes clear, Section 50.109(d) prohibits any interference with licensing action until appeals under the backfitting rule are completed.
2.
Revisions should be made to Staff Manual 1
l Chapter 0516, " Systematic Assessment of j
Licensee Performance," to make clear that a licensee's appealing an issue on backfitting i
grounds or otherwise insisting on its backfitting rights is not to be taken as an 1/
The NRC has recognized that this type of retaliation has occurred.
During the NRC Regional Workshops, a member of senior NRC management' indicated that he was aware of at least one past incident of flagrant retaliation, reflected in negative SALP report comments, resulting from a licensee'd bringing a backfitting appeal.
The SALP report in question apparently criticized the licensee as " dragging his fact" on the recommended action by choosing to continue to appeal the natter, but "nowhere did it acknowledge.
. that when (the licensee) finally brought it to the highest level of appeal, he won his appeal."
Backfitting Workshop (Regions IV and V)
(April 29, 1986) at Tr. 138 (statement of Mr. Eisenhut).
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l indication of being unresponsive to NRC l
initiatives.
At a minimum, a note to that effect should be added to Table 1, section 3,
" Responsiveness to NRC Initiatives," of Manual Chapter 0516, 3.
A process should be established by which licensees may bring concerns regarding retaliation to the attention of the NRC gn_A
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confidan11aLhmais.
It would appear appropriate for AEOD to be the point of contact in the first instance to receive such I
concerns.
If necessary, such matters could be referred to oIA for investigation since Staff retaliation for a licensee's use of Section 50.109 would seem to constitute NRC 1
amployee misconduct within the scope of oIA's responsibility.
Retaliation also affects the integrity of the NRC's backfitting program, and thus appears appropriate for CIA's handling.
See Manual Chapter 0113,
" organization and Functions, Office of Inspector and Auditor."
A confidential procedure for bringing concerns about retaliation to the NRC's attention would, in our judgment, be one of the most effective means by which the NRC could ensure that the backfitting rule works as intended.
We therefore urge your serious consideration of this proposal.
We would be pleased to provide our more detailed thoughts on how to structure the procedure if it would be helpful.
III.
RTEPONSE TO AEOD OUESTIONS A.
Procedures of Manual chantar 0514 Question 1 of the AEOD Questionnaire relates to whether there is a need for clarifications and improvements'in Manual Chapter 0514.
On the whole, NURARG believes that the Manual Chapter is sufficiently clear en the process for identification of backfits and on the handling of claims and appeals.
- However, we believe the Manual Chapter should be clarified in.the following respects.
l 1.
Information Reauesta.
Section 041, "Information Requests Pursuant to 10 CFR 50.54 (f)," should be modified to provide that infornation requests may not be used to mandate new licensee programs, require extensive new analyses, or establish new staff intarpretations of requirements-(see our comments above on generic cowaunications).
9
g.
2.
Review to current Licensine criteria.
paragraph 3 of Section B.1 of the Appendix to Manual Chapter 0514 to the use of SRP criteria in the review of license ame(relating ndment requests that propose new design features) could lead to.some confusion on whether revised licensing criteria may be applied in the Staff's review of a license amendment request or other i
changes for an operating license holder, or during NRC review of such a licensee's programs.
NUBARG suggests that language be added to this section of Manual Chapter 0514 to make clear that, as a general rule, license amendment requests and other proposed programs and modifications at an operating plant should be reviewed against the plant's licensing basist they should not be required to meet revised SRP criteria that were not part of the licensing basis.6 We are aware of instances in which the Staff has insisted on application of SRP criteria in the review of a licensee's program in a particular area where the plant in question was licensed before adoption of the SRP (see discussion-below).
Specifically, we suggest that the following be added after the second sentence of the third paragraph of Section B.1 (see attached markup):
Staff review of license amendment requests, programs and other modifications for an operating plant should be conducted using the applicable criteria and requirements reflected in the plant's licensing basis.
Review of such matters against new SRP revistens is generally not permitted.
In addition, the final sentence of Section B.1 should be. clarified to read as follows (with additions underlined and deletions in brackets):
During review of licanas amendment annlientions (reload reviews), staff-proposed positions with regard to technical matters not related to the changes proposed by a licensee shall be considered backfits.
In addition.
Staff sumations renardine mattars net related to the nronosed channes shall be treated in accordance wit" the controls of this chanter and 10 C.F.R.
E BO.54(f).
1/
We appreciate that the Staff is unable to keep track of the I
specific licensing basis for all plants (e.g. What edition of the ASME Code was committed to for design purposes, etc.).
For this reason, licensees must generally take responsibility to inform the Staff of the plant's licensing basis.
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h This change is necessary to reflect the fact that this principle-should apply to review of any proposed license amendment, not just reload applications (as the' Manual Chapter currently reflects).
The addition of the second sentence is necessary to j
reflect the fact that Staff questions on matters not related to a i
proposed license amendment may represent backfits or may have the effect of delaying action on the amendment contrary to Section d
50.109(d), and thus should be subject to backfitting controls.
I 3.
Reanalysis of Immuns.
Language should be added to section C.4 of the Appendix (dealing with staff reanalysis of issues after plant licensing) to indicate that new Staff positions on what is necessary to comply with existing i
requirements are to be treated as backfits.
This is important in i
areas such as equipment qualification where the-technical j
understanding of issues may evolve over time, with the result that what was regarded as acceptable _once may no longer be viewed j
by the Staff as acceptable.
While the Staff's new position may be based on the original underlying requirement, new staff positions on what is necessary to cumply (which may entail far
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greater actions ttan originally envisaged) should be imposed only 2
after an analysis of the need for the change and of why the prior
~i position is no longer acceptable.
It was for this reason that the commission included within the definition of a "backfit" in Section 50.109 (a) (1) new Staff positions interpreting the i
regulations.
NUBARG therefore suggests that the following language be added at the end of the first paragraph of Section 1
C.4.
i In addition, a new staff position on what is necessary to comply with an existing.
requirement (such as a new position that has arisen from greater understanding of
)
evolving issues) should be classified as a backfit.
B.
Staff Adharance to Manual Chantar 0514 4
Question 2 of the survey asks whether NRC practice has been consistent with the Manual Chapter in identifying and implementing backfits.
While we believe that on the whole the Staff has attempted to follow Section 50.109 and the Manual Chapter, improveaants are necessary in two respects.
First, it appears that there is some reluctance on the part of the Staff to identify positions as backfits. -As a result, it is often licensees rather than the Staff that must identify 1
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backfits to the Staff.7 As Manual Chapter 0514-(at 5 042) nakes clear, it is the Staff's responsibility to identify new pcsitions as backfits prior _to transmittal to the licensee.
The Manual Chapter also makes clear, however, that backfits are expected to occur and indeed are a necessary part of the regulatory process.
But just as licensees must understand that backfitting will occur, the Staff must recognize its responsibility to identify positions as backfits when that is the case.
I The second area for improvement relates to the quality of-the NRC's evaluation of licensee backfitting appeals.
In some 4
cases, the NRC's analyses of whether a position censtitutes a backfit have'been cursory at best.
For example,.L licensee's appeal regarding requirements for the Safe System was dismissed in a single sentence.gy Parameter. Display The Manual Chapter contemplates a reasoned decision by the Staff on licensee
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backfitting claims and appeals.
With respect to licensee claims that a Staff position should be identified,as a backfit, Manual Chapter 0514 provides that the Staff "shall document tha' basis If Examples when it has been left to the licenses to identify a staff position as new have included:
Appendix R review of cable-to-cable spurious interactions at sequoyah (see
. licenses correspondence with NRC dated April 19 and May 23, 1988); issues concerning natural circulation cooldown capacity at Farley Unit 2 and containment vent purge valves at Farley Units 1 and 2 (see licensee correspondence with NRC dated November 18, 1985 and April 19, 1985 respectively); the need to derive-an "as found" Type A leakage rate for Appendix J purposes.by adjusting Type A results for Type B and C leakage (see, for a generic discussion of.the issue, NUBARG's comments on proposed revisions to Appendix J, dated April 27, 1987); reporting of certain types of security'avents at Wolf Creek under 10 C.F.R. 5 73.7 (see licensee correspondence j
with Region IV dated October 22, 1986).
l Licensees have also pointed out proposed new generic Staff positions that represented backfits. ' Saa, LL., Minutes of CRGR Meeting No. 98 (November 3, 1966), Enclosure 3, pp. 3-4 (Generic Letter on seismic qualification of equipment in operating plants identified as backfit).
Other generic cases in which the staff, in our view, has shown reluctance to identify positions as backfits involve the recent Generic Letters on inservice testing of pumps and valves (Generic-Letter 89-04), SPDS criteria (Generic Letter 89-06) and contingency planning for vehicular bombs (Generic Letter 89-07), and proposed Generic Letters on service water systems and Mov testing.
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See NRC correspondence to Duke Power Company, dated September 4,
1987.
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for (its] decision.
Manual Chapter 0514 5 042 (emphasis i
added).
With respect to licensee appeals of the merits of a backfitting analysis, Manual Chapter 0514 (at 5 044) provides l
that the Staff will state its reasons for a decision and will i
address how the proposed backfit will result in a substantial increase in the overall protection and be cost justified.
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To improve adherence to the rule and standardize the Staff's-i practice, NUBARG recommends that a mechanism be established to ensure indemandant review of licensee backfitting claims and j
appeals.
The perception has been created that the appeal process is inherently biased in that many times licensee backfitting j
appeals are addressed, at least in part, by the same NRC personnel responsible for the position under review.
For this l
reason, we believe.that each licensee claim or appeal should receive independent review by Staff management and OGC.
- Further, when the backfitting issue is raised with one of the Regions, the l
process should call for NRR input into the decision.
This would ensure consistent interpretations of requirements.
In this connection, we recommend that Sections 042 and 044 of Manual
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Chapter 0514 be modified to state that proposed decisions on backfitting claims and appeals addressed to the Regional l
Administrators be reviewed by NRR.
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NUBARG also supports the continuation of AEOD's training of i
the NRR Staff and the Regions on the proper implementation of the j
hackfitting rule (see discussion above).
such training should include detailed instruction on what constitutes a backfit, 3 g.,
2 in the licensing, enforcement and inspection contexts.
This i
backfit training should also emphasize the need to address backfitting appeals in a reasoned manner and to provide a documented basis for the Staff's conclusions on the appeal.
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C.
Jmeosition of Backfits j
Question 3 of the survey requests any examples of backfits d posed in the past year that were not identified as such by the i
NRC and for which the licensee did not file or has not filed a i
claim or appeal.
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NUBARG members have identified the following cases which we j
wish to bring to AEOD's attentions i
One licensee, after performing an appropriate evaluation under 10 C.F.R.
I 50.59, deleted certain valves of the reactor building closed cooling water ("RBCCW") system from the Appendix J leak rate testing program for its i
plant.
The plant was licensed before adoption of the Standard Review Plan.
The basis for the j
change was that the RBCCW system is a closed-i i
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loop system as defined in the requirements reflected in the plant's licensing basis, and
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that therefore the valves do not constitute i
containment isolation valves under Appendix J.
The classification of the system is reflected in the FSAR and was approved in the Staff's i
SER.
The Staff has taken the position, however, that the RBCCW valves must be kept in j
the Appendix J program since the RBCCW system does not meet all the conditions to be i
classified as a closed-loop system undar j
current SRP criteria (the plant has safety i
Class 3 piping inside_ containment rather than Class 2 as required by the SRP).
Despite its i
application of SRP criteria to a non-SRP plant, j
the Staff has not identified its position as a backfit.
The licensee is considering whether i
to appeal.
In its review of the ATWS design for a certain I
class of plants, the Staff took the position j
that the power supply for the ATWS mitigation system had to be diverse from that for the reactor trip system in order to meet the ATWS I
i rule, 10 C.F.R.
I 50.62.
Specifically, the j
Staff insisted that a diverse station battery 2
(non-safety related) be installed for the ATWS i
mitigation system.
The licensees had proposed l
to use the reactor trip system Class 1E (safety-related) buses for the ATWS system.
In l
insisting that a diverse (though non-safety-i related) station battery was required to meet j
the ATWS rule, the Staff relied upon an l
internal NRC guidance document -- specifically, i
a revised version of the Table published in the Statement of Considerations to the ATWS rule.
This revised Table was never published in the j
Federal Register, reviewed (to our knowledge) by CRGR or formally transmitted to licensees.
A The Staff did not acknowledge that the imposition of this revised Table was a backfit.
The licensees' resolution of the issue is j
currently pending.
4 i
One licensee's combustible gas control system i
for meeting _the NRC's hydrogen control rule, 10 C.F.R. I 50.44, was reviewed and accepted by i
the NRC in an SER issued in 1986.
The licensee
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proposed the use of an inerted containment as the primary means of combustible gas control, along with limitations on crygen concentration inside containment.
The Staff also had found l
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i the licensee in compliance with section 50.44(c) in issuing a license amendment in i
1984.
The Staff later questioned the licensee
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regarding compliance with Section 50.44.
Despite the staff's previous acceptance of the licensee's actions, the Staff has not l
acknowledged that its reanalysis of the issue j
is subject to the backfitting rule (see Manual j
Chapter 0514, Appendix, pp.4-5).
The matter is 3
being evaluated by the licensee.
D.
Weaknesses In The Backfit Process 1
Question 4 of the survey aske for comments on any i
" impediments or weaknesses" in the backfitting' process or in the.
j understanding of the process, with suggestions for improvements.
t The comments above have addressed most of these points, but it j
may be convenient to summarize our principal concerns here.
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In NUBARG's view, there are three major impediments or weaknesses in the process.
First, the very real possibility of j
Staff retaliation against a licensee that pursues its rights under the backfitting rule has, in our experience, greatl discouraged the use of the rule by individual licensees. y We have j
therefore strongly recommended that a process be established by j
which licensees may express concerns about retaliation to the NRC in confidence.
4 Second, the generic backfitting process has all but
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hemorrhaged.
Over the past 18 months, so many new initiatives have been taken through NRC Bulletins and Generic Letters that it has threatened to divert licenses resources from truly j
significant safety issues.
This has been due in part to the fact 3
that many generic communications have not been subjected to the
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backfitting rule and justified with an analysis meeting the j
standards of section 50.109.
As long as the NRC centinues to use 1
I generic communications in this manner to initiate new programs, 4
progress towards a stable and predictable system of regulation
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will be significantly impaired.
Third, despite the roles of the EDO and AECD, there is a diffusion of responsibility for backfitting controls within the i
Staff.- We suggest that backfitting coordinators be established i
for both NRR and CGC in order to ensure consistency and continuity in the staff's implementation of the rule.
The designation of OGC and NRR backfitting coordinators will also assist licensees in having central points of contact with whom to j
discuss potential backfitting issues informally, s
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I Finally, with respect to misunderstandings of the process, there are indications that not all members of the Staff clearly understand what constitutes a backfit.
As a result, they may not realize when their actions cross the line into backfitting.
Nor does it appear that the Staff has adequate training on the preparation of regulatory analyses and on how to evaluate licensee backfitting claims and appeals.
For these reasons, we have made the recommendation above that the NRC continue to conduct periodic training of the Staff and Regions on proper implementation of the backfitting rule.
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i From Manual Chapter 0514 Appendix i B.1
[ additions underscored:
I deletions in brackets)
Application of an SRP to an operating plant after the license is granted generally is considered a backfit unless the SRP was approved specifically for operating plant implementation and is applicable.to such operating plent.
It is important to note, I
however, that in order to issue an amendment to a license, there must be a current finding of compliance with regulations applicable to the amendment, staff review of liennaa===ndment
- i raauests, crearama, and other modifications for an omaratina l
clant should be conducted usina the anelicable critaria and reauirements reflected in the niant's licannine basis.
Review of such mattars maainst new SRP ravisions is canarally net i
earmittad.
As a specific example, review of plant owner's application for a license amendment to authorize installation and I
operation of a new reactor core, commonly called a " reload application," may necessitate review of new fuel designs or new thermalhydraulic correlations and associated operating limits.
Such changes that are clearly advances in design or operation may involve new or unreviewed safety issues, and may warrant review to SRP criteria which were approved subsequent to initial license issuance to the licensee.
This is not considered a backfit.
However, such review to newer SRP revisions is not necessarily i
required to determine current compliance with regulations.
Licensee-proposed revisions in design or operation that raise staff questions only about potential reduced margins of safety as defined in the basis for any technical specification should be reviewed by reanalysis of the same accident sequences and associated assumptions as analyzed in the FSAR for the initial license issuance.
During review of liennae a==ndmant anelientions (reload reviews),
staff-proposed positions with regard to technical matters not related to the changes proposed by a licensee shall be considered backfits.
In addition. staff cuantions renardina matters not related to tha~eronomad chansam shall be treated in accordance Vith the centrols of thim Chanter and 10 C.F.R. 4 50.54(fl.
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ATTACHMENT II ROCHESTER GAS & ELECTRIC CORPORATION GENERIC ISSUES 1988 i
BU #
NRC BULLETIN TITLE ACTUAL / ESTIMATED NRC ESTIMATE RGGE COST ($)
88-01 Defects in Westinghouse Circuit Breakers 500 88-02 Rapidly Propagating Fatigue Cracks in Steam 50,000 Generator Tubes 88-04 Potential Safety-Related Pump Loss 88-05 Nonconforming Materials Supplied by Piping 2,475,000 Supplies Inc. at Folsom, NJ and West Jersey 68,000 Manufacturing at Williamstown, NJ 88-08 Thermal Stresses in Piping Connected to Reactor 50,000 Coolant Systems
.r 88-09 Thimble Tube Thinning in Westinghouse Reactors 3,000 M-Hrs / Licensee 30,000 88-10 Nonconforming Molded-Case Circuit Breakers 1,000-to 10,000 M-Hrs / Plant 35,000 88-11 Pressurizer Surge Line Thermal Stratification 3,000 P-llrs/ Licensee 86,000 (Only Response-Related Matters) f GL #
GENERIC LETTER TITLE i
88-01 NRC Position on IGSCC in BWR Austenitic Stainless Steel Piping N/A 88-07 penni n t-inn o f r:ar e, i.- ca ra + +-
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ATTACHMENT II ROCHESTER GAS E ELECTRIC CORPORATION GENERIC ISSUES 1988 BU #
NRC BULLETIN TITLE ACTUAL / ESTIMATED NRC ESTIMATE
_RGEE COST ($)
88-01 Defects in Westinghouse Circuit Breakers 500 88-02 Rapidly Propagating Fatigue Cracks in Steam 50,000 Generator Tubes 88-04 Potential Safety-Related Pump Loss 2,475,000 88-05 Nonconforming Materials Supplied by Piping 68,000 Supplies Inc. at Folsom, NJ and West Jersey Manufacturing at Williamstown, NJ 88-08 Thermal Stresses in Piping Connected to Reactor 50,000 Coolant Systems 88-09 Thimble Tube Thinning in Westinghouse Reactors 3,000 M-Ilrs/ Licensee 30,000 88-10 Nonconforming Molded-Case Circuit Breakers 1,000 to 10,000 M-Hrs / Plant 35,000 11 Pressurizer Surge Line Thermal Stratification 3,000 P-Hrs / Licensee 86,000 (Only Response-Related Matters)
GL 4 GENERIC LETTER TITLE i
t 88-01 NRC Position on IGSCC in BWR Austenitic Stainless N/A Steel Piping 88-03 Resolution of Generic Safety' Issue 93, " Steam Binding 3,000 of Auxiliary Feedwater Pumps" 88-05 Boric Acid Corrosion of Carbon Steel Reactor Pressure Boundary Components in PWR Plants 170,000 88-11 NRC Position on Radiation Embrittlement of Reactor Vessel Materials and its Impact on Plant Operations 380,000 88-14 Instrument Air Supply System Problems Affecting 1,100,000 Safety-Related Equipment 88-17 Loss of Decay Heat Removal 10 CFR 50.54(f) 200 P-Hrs / Licensee 400,000 88-20 Individual Plant Examination for Severe Accident 8,'100 P-Hrs / Licensee 1,000,000 Vulnerabilities 10 CFR 50.54(f) over 3 Yrs.
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