ML20148D018
| ML20148D018 | |
| Person / Time | |
|---|---|
| Site: | Portsmouth Gaseous Diffusion Plant, Paducah Gaseous Diffusion Plant |
| Issue date: | 05/27/1997 |
| From: | Fertel M NUCLEAR ENERGY INSTITUTE (FORMERLY NUCLEAR MGMT & |
| To: | Hoyle J NRC OFFICE OF THE SECRETARY (SECY) |
| References | |
| FRN-62FR14456, RULE-PR-MISC 62FR14456-00002, 62FR14456-2, NUDOCS 9705300034 | |
| Download: ML20148D018 (6) | |
Text
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W USHRC NUCLEAR ENERGY IN Silt U T E W MF 28 A10:17 Me, vin 5. Feetel OfflCE OF SECRETARY vlCE PantDEN T.
00CKETING d 3rRV!CE sumes.
- u N =" * " 5 BRANCH May 27,1997 Mr. John C. Hoyle 20~ MET NUMBER Secretary Washington, DC 20555-0001
. ( M F8214466)S RMSG W N
U.S. Nuclear Regulatory Commission -
ATTENTION: Docketing and Service Branch
SUBJECT:
Request for Comments on " Criteria for StaffImplementation of "Backfitting" Requirements for. Gaseous Diffusion Plants" G2 FR 14456 Title 10 CFR, Section 76.7G governs backfitting of gaseous diffusion plants (GDPs) certified by the Nuclear Regulatory Commission (NRC). By Federal Register notice dated March 26,1997, (62 FR 14456) NRC solicited public comment on Office of Nuclear Material Safety and Safeguards (NMSS) Policy and Procedures Letter 1-53,- which describes the procedures to be used to implement this section. The Nuclear Energy Institutet (NEI) is pleased to provide the comments below and in the attachment to this letter.
NEI submitted a petition for rulemaking on September 30,1996, which would revise 10 CFR Part 70 to add a provision governing backfitting of fuel fabrication and enrichment facilities (among other changes). The backfit provision included in our petition is similar to 10 CFR 76.76. NEI therefore expects that the procedures described in NMSS Policy and Procedurcs Letter 1-53 will become the basis for backfit controls for Part 70 licensees once our petition has been adopted.
NEI's comments reflect this broader potential applicability even though NMSS Policy and Procedures Letter 1-53 is inherently applicable to only one entity. (Since i NEI is the organization responsible for establishing unified nuclear industry policy on matters affecting the nuclear energy industry, including the regulatory aspects of generic operational and' technical issues. NEI's members include all utilities licensed to operate commercial nuclear power plants in the United States, nuclear plant designers, major architect / engineering firms, fuel i
fabrication facilities, materials licensees, and other organizations and individuals involved in the n'uclear energy industry.
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' Mr. John C. Hoyle May 27,1997 l
. Page 2 j-the only two GDPs subject to Part 76 are operated by the U.S. Enrichment Corporation, USEC). USEC is one of NEI's member companies, and NEI has coordinated with USEC in preparing the comments herein.
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' NEI considers that good public policy requires that NRC establish a consistent and stable regulatory process for its licensees and certificatees. The back6tting provisions of section 76.76 are a commendable step in that direction. The provisions of the rule would limit changes to be imposed on GDPs to those which would provide a substantialincrease in safety and for which the safety benefit would justify the implementing costs. However, as described in the attached comments the provisions of NMSS Policy and Procedures Letter 1-53 undercut the stability promised by the rule by inappropriately lowering the threshold at which backfits may be imposed. This appears to result from a conclusion that the radiological public health risk posed by the GDPs is small enough that it would justify few backfits. NEI agrees with this conclusion, and considers that it also reflects the overall risk situation from other fuel fabrication and enrichment facilities. This conclusion should lead to a highly stable regulatory regime,i.e., few backfits, rather than a redefinition of criteria to allow for more widespread changes.
NEI would be pleased to discuss these comments and to respond to any questions the NRC may have.
Sincerely, A-M Marvin S. Fertel Vice President Suppliers, International & Fuels Attachment
NEI Comments on NMSS Policy and Procedures Letter 1-53
- 1. The combined effect of these procedures is to inappropriately lower the threshold for justifying imposition of a backfit. This results from explicit changes (e.g., use of
" net benefit" rather than "substantialincrease") and implicit changes, principally the procedure's emphasis on qualitative analysis. This emphasis is ostensibly caused by. difficulties in quantifying safety benefits of changes at gaseous diffusion plants (GDPs). NEI considers that these difficulties can and should be overcome.
The effect of a shift to a qualitative basis is to reduce the analysis to one of"we think it should be done" rather than a demonstration of clear safety enhancement.
i This is counter to the emphasis on quantitative analysis in NUREG/BR-0058, Rev.
2," Regulatory Analysis Guidance of the U.S. Nuclear Regulatory Commission" which is used as a basis for analyzing backfits for reactor licensees and is a principal reference of NMSS Policy and Procedures Letter 1-53. Lower radiological risk from GDPs and other fuel fabrication and enrichment plants than from reactors should justify a higher, not lower, threshold and a rigorous analytical process for imposed change. Specific comments in this regard are:
- a. The procedure states that "the risk associated with enriched uranium exposure is primarily chemical toxicity, not radiological." NRC should apply the $2000 per person-rem value of NUREG/BR-0058, Rev. 2, to quantifymg the safety benefit of changes that are intended to reduce radiological j
exposures.
- b. The procedure recommends that the staff use the " net benefits" approach discussed in NUREG/BR-0058, Rev. 2, to address the " substantial increase" standard of the rule. This is inappropriate. The rule clearly specifies that changes may only be imposed (except for certain specified circumstances) if they will result in "a substantialincrease in the overall protection of the public health and safety or the common defense and security". A net benefit merely indicates that the monetized benefit is greater than the expected costs. It does not, and cannot, provide any information regarding the magnitude of the improvement sought. A minor benefit which can be achieved at very little cost would satisfy a net benefits test, but would clearly not meet the substantialincrease test of the rule. This office procedure can not so change the clear language of the rule.
- c.Section III.B.5 of the procedure,in discussing quantification of costs and benefits, states, "Use information to the extent that it is reasonably available.
Make a qualitative assessment of benefits in lieu of a quantitative analysis if it will provide more meaningful insights or will be the only analysis practicable." Appendix 3 of the procedure later states that the staff will use a
" qualitative non-monetary methodology" to derive benefits. It thus appears that quantitative analyses have been judged to be impracticable for any use.
NEI Comments on NMSS Policy and Procedures Letter 1-53 2
These provisions should be revised. The bias should be in favor of requiring quantitative analysis, as it is in NUREG/BR-0058, Rev. 2.
- d. Appendix 3 to the procedure lists a number of factors which may be used to assess the "substantialincrease" of a proposed benefit or modification.
Several of these factors have tenuous,if any, connection to safety. For example, " greater uniformity of practice" may reflect a desirable outcome, but it is related to facility management rather than safety. Also," fewer exemption requests and interpretative debates" may make the regulator's job easier, but this has no connection to a substantial increase in safety.
- e. The procedures discuss changes which may be imposed for worker safety (e.g., sections II.C.1.a.(2) and III.B.5.b). Improvement of worker safety is not cited in 10 CFR 76.76 as a basis for imposing a backfit. NRC staff can not expand the scope of the rule in these implementing procedures. Worker safety is recognized as important, but it is the principal responsibility of other agencies (e.g., Occupational Safety and Health Administration, OSHA) and should not be a basis for NRC-imposed regulatory requirements. (In this regard, it should be noted that the procedure itselfis internally inconsistent.
Section II.C.1.a.(2) refers to, "a backfit that is necessary to ensure that the plant presents no undue risk to worker and/or public health and safety / safeguards, as described in Section II.B.1.c.(4). The referenced section does not describe worker safety as a basis for a backfit).
Analyses performed under this procedure will be used to justify imposing changes on facilities which have a long history of safe operation. As such, it is appropriate that the threshold for requiring such change be high and that the NRC staff bear the burden of demonstrating that the threshold is exceeded.
2.10 CFR 76.76 requires that "potentialimpact on radiological exposure of facility employees" be considered in evaluating whether a proposed backfit will produce a substantialincrease in safety.Section III.B.5.b of the procedure states that "[t]he potential impact on radiological and/or chemical exposure of plant employees" should be considered. This expansion beyond the rule's scope is inappropriate.
Protection against chemical hazards, per se, is outside NRC's regulatory jurisdiction. It is the responsibility of other agencies (e.g., OSHA). NEI considers that it would be appropriate to consider the effect on chemical safety in addition to radiological safety when quantifying the benefits of proposed backfits, but that it would be outside the agency's legislative mandate for NRC to require changes based solely on chemical risks.
- 3. The procedures intermix " commitments" with requirements and staff positions as vehicles by which backfits may be imposed. The term commitment is used in 10 CFR 76.76 only in the context of assuring compliance with existing written commitments. A commitment is, by common definition, an action to which a
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NEI Comments on NMSS Policy and Procedures Letter 1-53 3
licensee /certificatee has agreed voluntarily. A commitment is not a vehicle which can be used by NRC to impose requirements. The procedure should be revised to remove discussion of commitments in that context.
- 4.Section II.A.1.a states, "For any proposed staff position, the staff must question whether it is directing, telling or coercing rather than merely suggesting or asking that the certificatee consider an action." The industry encourages open communications with the NRC and support any dialogue that is aimed at improving safety at our facilities. However, the staff should be required to explicitly identify suggested actions as non-mandatory in any communication with the certificatee.
The certificatee should be free to accept or reject any ruggestions without need to defend this action before the staff. Otherwise, suggestwns become coercion. In any case in which the certificatee declines to accept an NRC " suggestion", the staffis free to impose the suggested change if_ it can be justified as a backfit under 10 CFR 76.76.
- 5. The procedure uses the combined 9 m " safety / safeguards" at several places (e.g.,
II.B.1.c.4, III.B.3). This combination of concepts is inappropriate:
- a. Most of these references relate to circumstances in which the staff deterndues that a backfit is required to ensure "no undue risk to public health and safety / safeguards", and thus no regulatory analysis is required.
The rule provides an exception for actions necessary to ensure "that the plant provides adequate protection of the health and safety of the public and is in accord with the common defense and security" (10 CFR 76.7G.(a) (4).(ii)), but this exception does not relate to safeguards. Changes required to ensure compliance with existing safeguards requirements would be exempted from analysis under 10 CFR 76.76.(a).(4).(ii) as "necessary to bring a plant into compliance", but this exception has nothing to do with adequate protection (or undue risk). The concept of" undue risk to.. safeguards" goes beyond the rule and should be deleted.
- b.Section III.B.3. uses the combined term in a different context. Here, regulatory analyses are required to "[d]etermine the potential impact on safety / safeguards". The rule does not provide for backfits which improve safeguards. Since such impacts may not be used to justify backfits,
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regulatory analyses of proposed backfits should not consider impact on safeguards.
G. Implementation deadlines should be tolled during the review of backfit claims by a certificatee unless immediate implementation is needed to assure safety. If deadlines are not tolled, delays in staff review of backfit claims could render the claim moot. Engineering, procurement and planning may have to occur to assure that the required deadline is met, even in cases where the deadline appears to be
)
comfortably in the future. To prevent the imposition ofinappropriate burden w
NEI Comments on NMSS Policy and Procedures Letter 1-53 4
j (which would clearly be the case should the certificatee claim be upheld) tolling should be on a day-for-day basis during the pendency of the claim.
- 7. Appendix 4 provides that " Application of SRPs [ standard review plans] to an operating plant or plants after the certificate is granted generally is considered a backfit unless the SRPs were approved specifically for operating plant implementation and are applicable to such operating plant or plants, or SRP guidance is applied in a review of certificatee-proposed modification to its current certification basis." Since no approved SRPs currently exist covering GDPs, imposition of provisions from any SRP would be a backfit. In the case of other licensees which could be covered by similar procedures once NEI's petition for rulemaking is accepted, the exception covering use of SRP guidance for (in that case) licensee-proposed changes must be limited to the scope of the licensee proposal. Imposition of other provisions of an SRP, which do not relate directly to a licensee proposal, would still be a backfit.
- 8. Appendix 4 notes that imposition of future regulatory guides may not be a backfit. It goes on to say that, "[t]hese regulatory guides go through NRC's public review and comment process before staffimplementation of these guides." NEI notes that this process does not mean that new guides do not represent backfits.
Imposition of a new regulatory guide which interprets an existing rule in a manner which requires a change to the facility or procedures at a plant would still meet the rule's definition of a backfit regardless of the public comment process. We presume that generic imposition of the position in any new regulatory guide would be considered during the development and approval of the guide. This consideration must meet the provisions of the backfit rule.
- 9. NEI notes that the USEC comments on these procedures take issue with the baseline from which the backfit rule applies. This issue derives from the fact that the GDPs have not historically been regulated by NRC, and that the requirements governing their operation were not developed originally by NRC. NEI supports the USEC position on this issue. We note that this issue is unique to the GDPs. If a backfit provision is added to Part 70, as proposed by our petition, and similar procedures are used to implement that provision, the baseline would be the existing j
licensing basis for each licensee, that has been developed and imposed by NRC.
- 10. NMSS Policy and Procedures Letter 1-53 applies only to NMSS personnel. The rule applies to the agency as a whole. The procedures described in this letter, once revised as discussed above, should be promulgated in a manner which makes them applicable to all NRC personnelinvolved in regulation of the GDPs, at headquarters and in the Region.
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