ML16344A077

ACRS Comments on the Proposed Rule on Backfitting

ML16344A077
Person / Time
Issue date:	03/12/1985
From:	Banks M Advisory Committee on Reactor Safeguards
To:	Palladino N NRC/Chairman
References
Download: ML16344A077 (2)

Text

D850312 The Honorable Nunzio J. Palladino Chairman U. S. Nuclear Regulatory Commission Washington, D.C. 20555

SUBJECT:

ACRS COMMENTS ON THE PROPOSED RULE ON BACKFITTING During its 299th meeting, March 7-9, 1985, the ACRS continued its review of Commission progress toward the issuance of a new backfit rule. In an earlier letter, October 17, 1984, the Committee expressed concern about the apparently independent tracks being followed by the Commission in formulating a new rule and by its Staff in drafting a new Manual Chapter (0514) to implement that rule. In the interim, there has been some convergence. We have had the benefit of NRC Staff presentations during a Subcommittee meeting on February 6, 1985 and the 298th ACRS meeting on February 7-9, l985. We also have your December l4, l984 memorandum, copies of the proposed rule, and some of the public comments thereon. Unfortunately, we received the draft Manual Chapter at the Subcommittee meeting on February 6, and the Subcommittee has not met to consider the Manual Chapter so that our comments on the Chapter are incomplete.

We see no problem with issuance of the new rule to clarify the procedures which must be followed in the imposition of a backfit. If implemented by the NRC Staff, the rule will go a long way toward rationalizing a currently contentious situation. As you know, and as we have said before, there are deep problems involved in the regulatory use of risk assessment for decision making in the face of uncertainty. We recommend that the Commission adopt a position on this point and make it clear to the NRC Staff.

For the many issues beset with large uncertainties, neither the NRC Staff nor the licensee will be able to demonstrate unequivocally whether a proposed backfit meets the conditions required by the rule. We recommend that the Commission consider whether the likelihood of large uncertainties should be acknowledged in the rule, and recognition given to the fact that, in many cases, the quantitative analysis will not be decisive.

We think that defining backfitting as the imposition of new, or the modification of previous, regulatory requirements is an unfortunate choice of wording. Although seemingly simple, we think that the resulting attempts to define what is meant by regulatory requirements greatly confuse the matter, particularly in the draft Manual Chapter as described below. We think that the Honorable Nunzio J. Palladino definition of backfitting contained in the earlier version of 10 CFR 50.l09, modified as proposed in several of the public comments received, would help clarify the meaning of backfitting.

We are divided as to whether a reduction in "on-site costs" should be included in assessing benefits for a benefit/cost analysis.

We assume that the Commission does not intend that the "substantial" test in the rule will be used to compromise the level of defense-in-depth that is implicit in the normal regulatory philosophy.

We concur in the effort to control information requests to licensees by exercising control at higher levels of NRC management. There are, however, proper occasions for seeking information, and we assume that the proposed restraint is intended to limit requests only to such occasions.

The February 4, l985 draft Manual Chapter version is another matter. As mentioned above, we have not been able to provide a detailed critique; however, even a cursory reading suggests that it is not a finished product.

It contains numerous errors. As an example, "applicable regulatory requirements" are defined to include license conditions, technical specifications, Branch Technical Positions, Regulatory Guides, etc. Many of the items on the list are advisory and are not regulatory requirements. We are particularly disturbed that your Staff continues to treat them as if they were.

We would like to take this opportunity to comment on an issue that has been raised both here and on other occasions -- the question of whether costs may properly be considered. While we do not claim legal expertise, there are some comments that can be made, even absent this advantage.

We think it quite clear that the Congress could not have intended that unlimited resources and effort should be expended in the pursuit of nuclear safety. It would not only be unreasonable, but the Congressional handling of the NRC budget gives no indication that this was its intent. Indeed, there is no technology that cannot be made safer by the expenditure of more effort or the imposition of more constraints, and we find no evidence that the Congress is unaware of this fact. To believe that costs are irrelevant in the case of nuclear safety could only lead to abdication of the responsibility to set priorities. This could lead to a net decrease in the level of nuclear safety.

The ACRS licensing letters say, "... without undue risk to the health and safety of the public." Within this constraint, we see it as the responsibility of the Commission to so order its priorities as to achieve the necessary safety available within limited resources. This can only be accomplished by taking into account the costs (of all forms) necessary to produce a given increment in safety.

Subject to the above comments, we recommend that the Commission issue the new rule, and then ask the NRC Staff to propose a Manual Chapter that conforms to that rule.

Sincerely, David A. Ward Chairman