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Beckjord UNITED STATES Ross J
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September 25, 1989
.Jate sf 9/26 MEMORANDUM FOR:
Eric S. Beckjord, Director i
Office Nuclear Regulatory Research FROM:
Edward L. Jordan, Director j
Office for Analysis and Evaluation of Operational Data
SUBJECT:
PROPOSED RULEMAKING - NOTIFICATION OF INCIDENTS 10 CFR 20.403 This responds to your memorandum dated September 13, 1989 on this subject.
We cannot concur because, as written, the proposed rule raises the following issues which we believe need to be resolved prior to its promulgation.
Y1.
The proposed rule appears to be a backfit requiring justification under 10 CFR 50.109 and review by CRGR.
The proposed revision would add new reporting requirements regarding contamination [i.e.,
30.50(b)(1), 40.60(b)(1), and 70.50(b)(1)] and it is not clear whether these requirements would affect commercial power reactors o, y L M N W runless a specific exclusion is included in these parts.
It is our ete.% understanding that provisions of Parts 30 and 70 apply to part 50 licenses, because they possess material covered by those Parts, wPA 7 2.
Although provisions of the proposed 10 CFR 30.50(b)(1), 40.60(b)(1),
and 70.50(b)(1) could be reworded to specifically exclude commercial power reactors and thus avoid backfit considerations, the rationale nu ffor not reporting serious instances of contamination at commercial
%Q power reactors is not clear, particularly in view of the recently ho discovered contamination at Nine Mile Point.
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The provision of 20.403(b)(4) require the reporting of damage to property in excess of $2,000.
At present it applies to all licensees, but as. proposed, it would apply only to reactors, both power and research.
This is a rarely enforced provision of the regulations
. in so far as commercial power reactors are concerned and it would result in a large number of unnecessary reports from them if enforced more rigorously.
Therefore, it would also seem appropriate to
-exclude power reactors from this reporting requirement.
9)._ In addition, the requirement to send a telegram, mailgram, or facsimile to the
-administrator of the appropriate NRC region [30.50(c)(2), 40.60(c)(2) and 70.50(c)(2)] is an unnecessary paperwork burden.
The NRC Operations Center
> prepares a written event report upon receipt of the telephone call that serves the same purpose and that report is distributed to regions.
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If yo; have any questions concerning our response, please contact Mr. Eric
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ward Jordan, Director Office {
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RMBernero, NMSS JLieberman, OE TEMurley, NRR -
HRDenton, GPA WCParler, OGC PGNorry, ADM 9
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April 19, 1989 MEMORANDUM FOR:
Eric 5. Beckjord, Director Office of Nuclear Regulatory Research FROM:
Edward L. Jordan, Chairman
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Committee to Review Generic Requirements
SUBJECT:
CRGR REVIEW OF CFR 20.403 - NOTIFICATION OF INCIDENTS RULEMAKING l
My memo to you dated April 5, 1989, on the above subject stated that CRGR review was not needed because it did not concern power reactors.
Following-subsequent staff discussions, I have reconsidered this position.
While I still believe CRGR review is not needed, this change is clearly a relaxation of current requirements for power reactors.
Since other regulations (10 CFR 50.72 and 50.73) require power reactor licensees-to report events in which the deleted criteria will be adequately covered, this change can be considered one of minor safety significance and, therefore, need not be forwarded for CRGR review.
h Ed L. JordaM Chairman l
Co tee to Review Generic Requirements cc:
.T. Murley, NRR
..J., Mate, RES K. Ramsey, NMSS l
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i MEMORANDUM FOR:
Eric S. Beckjord, Director Office of Nuclear Regulatory Research FROM:
Edward L. Jordan, Chairman Committee to Review Generic Requirements
SUBJECT:
CRGR REVIEW 0F 20.403 NOTIFICATION OF INCIDENTS RULEMAKING This is in response to your memo dated March 9, 1989 on the above subject.
You indicated that RES and NRR are in the process of finalizing a proposed rule concerning 10 CFR 20.403 - Notification of Incidents, and you indicated that this rulemaking does not concern power reactors.
Accordingly, you requested that the rulemaking be exempt from CRGR review.
We agree that the proposed changes to 10 CFR 20.403 do not concern power reactors and thus do not come within the scope of CRGR.
We do note, however, that the proposed changes affect the requirements for reporting of events by research reactors.
As a result, we suggest that the proposed changes be coordinated with the appropriate organization in NRR.
Please let me know if I can provide any additional assistance or information.
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wy. A MEMORANDUM FOR:
S. Beckjord Director 1 8.hjM Office of Nuclear Regulatory Research FROM:
James Liebernan, Director 1
Office of Enforcement 1
SUBJECT:
PROPOSED RULEMAKING 20.403 I realize I am the proponent of the rulemaking and wanted to have minor clarification in 20.403. The new b)(1). (3), and (4) are helpful. However, I do not understand (a)(1) and (b)(2). Much more guidance is needed to s
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Nb determine what is reportable to make them enforceable.
I also question
% whether this is a minor rulemaking in view of the addition of those para-Q graphs.
I would delete them.
I also thought NRR objected to applying 20.403(a)(3), (a)(4), (b)(3), and (b)(4)' to reactors. Why not delete 1o those sections and add the new (b)(1), (3), and (4) to 20.403.
I cannot concur with this current version.
8-W James Lieberman, Director Office of Enforcement cc:
H. Thompson, DEDS R. Bernero, NMSS E. Jordan, AE0D T. Murley, NRR H. Denton, GPA W. Parler, 0GC J. Goldberg, OGC R. Cunningham, NMSS
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1 October 3,-1989 To Stuart Treby Ass't Gen. Coun. - f or Rulemaking and Fuel Cycle From: Michael Finkelstein Legal Intern Re Application of the Backfit Rule to the Proposed Amendment to 10 CFR 20.403 and the New Rules Proposed for Parts 30, 40 and 70.
This memorandum will address the subject of the application of the Backfit Rule of Part 50.109 to the proposed amendment to Part 20.403 and the newly proposed requirements of Parts 30.50,-40.60 and 70.50.
NRR has stated in a memorandum dated 9/13/89 and t
entitled " Proposed Rulemaking to 10 CFR 20.403-Notifications of Incidents" that the staff has determined that a backfit
. analysis is not required for this proposed rule because the amendments do not invol ve any provisions that would impose backfits as defined in 10 CFR 50.109 (a) (1).
AEOD replied to the NRR position on backfit applicability in a memorandum dated 9/25/89. AEOD's position regarding the proposed rule was that the rule required a backfit analysis under 10 CFR 50.109 and review by CRGR because the proposed revisions adds new reporting requir ements regarding contamination (Parts 30, 40 & 70) which may affect commercial. power reactors under Part 50.
Although both positions have merit, a close examination of the purpose behind the' proposed rule changes indicates that the backfit rule should not apply.
Pr oposed0Rul e0 Chances The purpose of the proposed Part 20.403 changes is to revise licensee requirements regarding notifications of nonreactor incidents f or material licensees. The proposed changes include:
- 1) Revision of paragraphs (a) (3), (a) (4), (b) (3) and (b) (4 )
on loss of operations and damage to property for immediato and 24 hour2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> noti f i c ati ons; l
- 2) New requirements added to Parts 30, 40 & 70 l
(Notification Paragraphs 30.50, 40.60 & 70.50 l '
respectively); and
- 3) A definition for the term "immediate."
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4 Changes in the f our paragraphs of Part 20.403 involve the removal of. material licensees from Part 20 Jrequirements. Part 20 notification requirements would then apply solely to Part 50 production and utilization facilities. Notification requirements f or material licensees would be expanded -in Parts 30, 40 & 70 (Each Part contains identical amendments). The new notification requirements include an immediate notification (f our hours), for an event-that poses a threat to the health and safety of material users or that prevents the performance of duties necessary to control the licensed material, and 24-hour notification for four categories of events involving the licensed material:
- 1) contamination occurs where access to an area is.
restricted for more than 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />;
- 2) events occur that prevent or could prevent structures or systems needed to control radiation releases, minimize i
radiation exposures or mitigate the consequences of an accident f rom f unctioning properly;
- 3) events occur that require medical treatment of a radioactively contaminated individual at a meaical facility (notification is not required-if first aid f or a-superficial injury is the only treatment rendered);
- 4) fires involving any device, container, or equipment containing licensed material.
Each of the newly created Noti fication Paragraphs contain definite requirements for the content of the reports to be cubmitted under the immediate and 24-hour categories and the y
requirement for a 30 day followup written report.
I BaEBfit0RuleG(100CFR050.109)-
1 The Backfit Rule, 10 CFR 50.109, was adopted by the Commission as a management tool to control the process of backfitting, i.e.
the imposition = of new requirements after a licensing decision has been made. Backfitting requires " modification of or addition to systems,... or the procedures... required to design, construct, or-operate a facility; which may result from a new or amended provision in the Commission rules...
(Part 50.109 (a) (1) ). "
10 CFR 50.109 was promulgated to avoid the imposition of an unjustifiable backfit on a Part 50 licensee. The Backfit Rule requires that a backfit bring about a substantial increase in protection to health and safety, and that costs be Justi{ied by such an increase in protection. Rules which alter the basic standards f or protection of public health and saf ety f all within the scope of the Backfit Rule. However, there is no precise quantification for either a substantial increase in protection or a justiilable cost.
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-Th3 Backfit Rulo' licto thrco oxcOptiona which -
exempt s -plcnt modificaticn f rom tho coct/bOnafit cnolycio of the rule.1No backfit analysis is_ done f or a modification V
necessary to bring a f acility into compliance with a ' license or the rules of; the' Commission (Part 50.109 (a) (4) (1)), for a regulatory action necessary to ensure that a facility provides: adequate protection to the health and safety of the public - (a) (4) (ii)- and f or a regulatory action defining or-redefining the adequate level of protection-to-the public health or saf ety (a) (4) (iii).
i Appl i c at i on0cf etheeBac kf i t 0Rul eSt oethe0 Proposed $Rul e0 Changes Backfit analysis under Part 50 is designed to limit unwarranted modifications to power rcactor facilities.
The Backfit Rule does not apply to NMSS licensees _(See Internal Memorandum Document-No: OGC-88-144 dated 7/12/88).
Although it is true that provisions of Parts 30 and 70 apply-to Part 50 licensees since they possess the type of-nuclear material covered by these parts, it is not the intention of the new Notification Provisions to apply to Part 50 licensees. Part 20.403 was amended by removing NMSS licensees from the requirements of thi s secti on. New notice requirements are proposed f or NMSS licensees in Parts 30, 40 and 70. No Backfit Rule analysis should be required f or the proposed notification requirements as applied to NMSS licensens.
A significant weakness of the proposed rules in Parts 30, 40 and 70 is that the language of the rules is f
ambigious as to which type of licensees are covered. Since the purpose of the proposed rules is to strengthen j
notifi cation requirements f or NMSS licensees, it would be j
helpful as a clarification of the applicability of the proposed rules to reword the proposals to exclude commercial power reactors. Alternatively, one - mi ght invoke this clarification in the preamble to the rule.
Commercial power reactors have their own notification requirements under 10 CFR Parts 50.54 (f ) and 50.72.- Since the proposed notication rules do not apply to power reactors, a Part 50.109 Backfit Rule analysis is not mandatory.
1.
1 l( 2J September 25, 1989 To: Stuart Treby Asst. Gen. Coun. for Rulemaking and Fuel Cycle From: Mi chael ' Fi nkel st ein Legal Intern Re Evaluation-of notification amendments to 10 CFR 20.403 and new notification paragraphs 30.50 (Domestic licensing of byproduct material), 40.60 (Domestic licensing'of source material) and 70.50 (Domestic licensing of speci al material).
The purpose of the proposed Part 20.403 changes is to revise licensee requirements regarding notifications of f
nonreactor incidents f or material licensees. The proposed changes-include:
- 1) Revi si on of paragraphs (a)(3), (a) (4), (b) (3) and (b) (4) on loss of operations and damage.to property for immediate and 24 hour2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> notifications;
- 2) New requirements added to Parts 30, 40 & 70 (paragraphs 30.50, 40,60 & 70.50 respectively); and
- 3) A definition for the term "immediate."
Changes in-the four paragraphs of Part 20.403 involve the removal of material licensees from Part 20 requirements. Part 20 notification requirements now apply solely to Part 50 production and utilization f acilities.
Notification requirements f or material licensees have been expanded in Parts 30, 40 & 70 (Each Part contains identical amendments). The new notification requirements include an immediate notification (n.1), for an event that poses a threat to the health and safety of materi al users or that prevents the performance of duties necessary to control the l"
licensed materi al, and 24-hour notification for four categories of events involving the licensed material:
- 1) contamination occurs where access to an area is restricted for more than 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> becau'se of the c on t ami nati on;
- 2) events occur that prevent or could prevent structures or systems needed to control radiation releases, minimize radiation exposures or mitigate the consequences of an accident from functioning properly; rjot e J.-
Immedi ate noti f i cati on for material licenses means four hours.
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- 3) events occur that require medical treatment of a radioactively. contaminated individual at a medical facility (notification is not required if first aid f or a superficial injury is the only -treatment rendered);
- 4) fireu involving any device, container, or equipment containing licensed material.
In addition each of the newly created notification Paragraphs contain definite requirements for the content of the reports to be submitted under the immediate and 24-hour categories and the requirement f or a 30 day f ollowup written report.
BNBLYSIS Proposed paragraph 20.403 remains the same as the existing rule except for the material licensees' jq 4 exemption in (a) (3) & (4) and (b)(3) & (4). This is a redundent rulemaking technique. It would be better to simply create paragraph 20.403(e) that states that paragraph 20.403 applies only to Part 50 Reactor Licensees and not to Non-r eact or, material licensees.
Sinc e the proposals f or Parts 30, 40 and 70 are 4/
the same, the following analysis of the new rules applies equally-to al1 three.
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In a memo dated September 19, 19S9, OE stated (b) (1), (3) and (4) were helpful but (a)i(1)Eandib (2)Twere -
-tco Wagueito,beJenforceabled Their concerns'are understandable. Proposal (a) (1) states-that immediate (4 hour4.62963e-5 days <br />0.00111 hours <br />6.613757e-6 weeks <br />1.522e-6 months <br />) notification is required f rom NMSS material licensees f or_ any event ht poses-e--theta usera r.J -- t he-mater-&a,1-- '
es that prevents the performance of duties _necessary to-maintain or control the licensed material. This is defini tely vague because the proposah setmino$floorif oriv notificationggivenfto'the'NRC ofTanTindustrialll accident'. All
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events.that pose a threat or that prevent performance is not enforceable. How i severeidoes'! anTacc i dent" haVeXto ibe7 bef ore
, b JnbtifiEat'iori? i sinecessary?; '
hkHypothetically, if a worker drops a gauge and exposes yjhimself to minute doses of radiation that could potentially cause cancer in twenty years, would the proposed rule tjarequiretheNRCbenotified?If k
the answer is affirmative, How many FTEs would OE need to enf orce the proposed additions to Parts 30, 40 & 707 2)
The seme problem enists for proposed (b)(2) which 91ates thet,any event concerning equipment or structural failure effecting safety be reported in twenty-four hours.
'I t il sYi mpor tantEto' establ i shl-a f l oor forfreportingTsuch' Csaf et97..f ai;1ureslinf order. to imake the ' rul ei enf orceabl e.
.o Proposal s (b) (1), (3) t<
(4) are no't vague, and are 3)good enf orceable rules, because they establish parameters which.the agency can work within. Proposal (b) (1) sets a 24 hour2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> floor for denial of access to a contaminated area.
A' mi nor spill that is cleaned up within a day need'not be reported. Equally, a superficial injury under proposal (b) (3) need not be reported. Proposal (b)(4)-setting the reporting parameter of a fire involving or damaging any licensed material is clear and succinct. A fire in a wastepaper basket in a warehouse storing licensed material need not be reported unless it impacts safe storage.
4)
Part (c).of the proposal is a vast improvement over Part 20.403.because it informs the licensee exactly i
what is required in their notification to the Commission.
This proposal closely parallels Part 50.72 and is vital for the success of any reporting requirements.
Outside-the previously mentioned improvements to the proposed' Parts 30.50 et al additions (see the included memo on a Backfi t-Rul e 50.109 probl em wi th thi s proposal ),-
this should become an ANPR in the FR and begin the process of Not ice and Comment Rulemaking. The proposal d ef i ni t el y.
improves the existing rules f or notification requirements f or - Nonreact or mat er i al licensees.
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