ML20046A978
| ML20046A978 | |
| Person / Time | |
|---|---|
| Issue date: | 06/07/1993 |
| From: | De Planque E NRC COMMISSION (OCM) |
| To: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| References | |
| NUDOCS 9308020187 | |
| Download: ML20046A978 (4) | |
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I' RELEASED TO THE PDR l-
,4 N 0 T A~T I 0 N V 0 T E" _7 93 D
. RESPONSE SHEET
' " * " " * " " " " 'Y" " +
T0:
SAf4UEL J. CHILK, SECRETARY OF THE ' COf44ISSION FROM:
C0lEISSIONER DE PLANQUE
SUBJECT:
SECY-93-086 - BACKFIT CONSIDERATIONS APPROVED _
DISAPPROVED xx ABSTAIN NOT PARTICIPATING REQUEST DISCUSSION C0f0ENTS:
See attached comments.
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mJ anneBb0gglQ,,,',.
MMmW RELEASE VOTE
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June 7, 1993 DATE.
WITHHOLD VOTE
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ENTERED ON "AS" YES xx NO j
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Conmissioner de Planque's comments on SECY-93-086:
While the Backfit Rule delays some rulemaking activities, requires expending resources to satisfy its safety enhancement criterion, and prevents certain changes that the staff and members of industry might consider " worthwhile," I do not believe that any change to the rule is warranteo since guidance may be sufficient to address this situation.
The underlying difficulty in achieving " desirable" regulatory changes appears to stem from a lack of understanding as to what is required to show "a substantial increase in the ovezall protection of the public health and safety or the common defense and security."
The dispute centers around (a) what constitutes a
" substantial" increase and (b) whether either a quantitative or qualitative analysis may be used to satisfy this threshold.
Questions have also arisen as to whether changes in a rule must individually or collectively satisfy the safety enhancement standard.
There is ample evidence that qualitative assessments may be used to show regulatory changes either individually or collectively meet the safety enhancement criterion.
Under 10 C.F.R.
S 50.109(c), the Commission may consider the nine factors listed therein and "any other information relevant and material to the proposed backfit."
NRC Management Directive 8.4-043.e states that a qualitative assessment of the benefits to be achieved may be used in lieu of a quantitative analysis "where it would provide more meaningful insights, or is the only analysis available."
Management Directive 8.4-043.f also lists qualitative factors that may be considered as bearing on the need for the backfit.
Thus, the NRC should not be deterred from relying on qualitative factors to support imposing a backfit.
4 The question of what constitutes a " substantial increase, whether in quantitative or qualitative terms, has been more difficult to answer.
The Statement of Considerations accompanying the 1988 rule (53 Fed. Reg. 23203 (June 6, 1988)),
failed to illuminate this standard.
Instead, it focused on curing the defect that led a Federal court to vacate a previous amendment to the rule.1 This was unfortunate since statements 1 The NRC's first backfitting or safety enhancement rule for reactors was promulgated in 1970.
It provided that
"[t]he Commission may require the backfitting of a facility if it finds that such action will provide substantial, additional protection which is required for the public health and safety or the common defense and security. " 10 C.F.R. S 50.109(a) (1971). In response to concerns that there was a need to systematize or rationalize the process, the Commission initiated rulemaking in 1983 and published a final rule in 1985.
The 1985 rule was vacated j
by Union of Concerned Scientists v. NRC, 824 F 2d 108, 110-11 (D.C.
j (continued...)
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accompanying ths"1985 rule provided guidance on what would L
satisfy the " substantial increase" safety enhancement criterion.
L For example, the 1985 Statement of Considerations stated:.
Substantial means "important or significant in a large amount, extent, or degree."
Under such a standard the Commission-would not ordinarily expect that safety l
improvements would be required as backfits that result in an l
insignificant or small benefit to public health and safety l-regardless of costs.
On the other hand, the standard is not intended to be interpreted in a manner that would-result in disapprovals of worthwhile safety or security improvements having costs that are justified in view of the increased protection that would be provided.
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50 Fed. Reg. 38097, 38102 (September 20, 1985).
If the l
Commission were to provide this type of guidance regarding what
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constitutes a " substantial increase" in health and safety, the l
staff might be better equipped to justify changes that i
incorporate widespread. industry practices or state-of-the-art techniques.2 l
In short, I would.not modify the rule or support the Cor_aission' exempting itself on a ad hoc basis from a regulation that encourages carefu) and disciplined'decisionmaking focusing on the health and safety consequences of new requirements.
Therefore, I i
l reject the options presented by the staff.hnd, instead, propose that the Commission address what appears to be the underlying problem by issuing guidance that clarifies the application of the l
I threshold criterion -
" substantial increase in overall protection of public health and safety."
The above-quoted guidance from the 1985 rulemaking should suffice.
The staff should draft such guidance for Commission approval and recommend the appropriate mechanism for implementation.
The staff should also consider whether such guidar e should i
E 1(... continued)
Cir. 1987), because the court found the rule impermissibly allowed the Commission to consider costs in determining whether to impose a backfit requirement needed for adequate protection of the public.
health and safety.
824 F.2d at 119-20.
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Note that the staff has identified only two rulemakings that have been withdrawn because of the Backfit Rule -- 10 C.F.R. Part 26 (Fitness for Duty) and 10 C.F.R. Part 50, Appendix J (Containment Leakage Rate Testing).
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3 incorporate the sig facto administrative, exception to the Backfit Rule and the' issue of whether changes proposed'by a rule.
are to be considered individually or collectively to satisfy the safety enhancement standard.'
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In practice, the staff has invoked an " administrative" exception to the Backfit Rule and has. not' applied S 50.'109 standards to changes in recordkeeping and reporting requirements.
See OGC Memorandum to Commissioners, July 6, 1989)at 10, n.14.
On the latter issue, I believe 'such changes should be considered collectively, -i.e., the determining' f actor should be the net effect on health and safety..
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