ML20148D043

Comment on Proposed Rule Re Criteria for Staff Implementation of Backfitting Requirements for Gaseous Diffusion Plants. Believes That Policy Ltrs Should Be Modified to Make Expectation Clear to Justify Backfits

ML20148D043
Person / Time
Site:	Portsmouth Gaseous Diffusion Plant, Paducah Gaseous Diffusion Plant
Issue date:	05/27/1997
From:	Woolley R UNITED STATES ENRICHMENT CORP. (USEC)
To:	NRC OFFICE OF THE SECRETARY (SECY)
References
FRN-62FR14456, RULE-PR-MISC 62FR14456-00001, 62FR14456-1, GDP-97-0084, GDP-97-84, NUDOCS 9705300042
Download: ML20148D043 (19)

Text

FPON SUSEC 301-564-3210 1997,05-27 16:25

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Secretary SERIAL: GDP 97-0084 US Nuclear Regulatory Commission Washington, D.C. 20555-0001 Attention: Rulemalangs and Adjudications Staff Paducah Gaseous Diffusion Plant (PGDP)

Portsmouth Gaseous Diffusion PInnt (PORTS)

Docket Nos. 70-7001 and 70-7002 USEC Comments on " Criteria for StaiTImplementation of'Backfitting' Requirements for Gaseous Diffusion Plants," 62 Fed. Reg.14456 (March 26,1997)

Dear Sir:

On behalf of the United States Emichment Corporation (USEC), I am pleased to provide comments on the NRC's Criteria for StaffImplementation of"Backfitting" Requirements for Gaseous Diffusion Plants for your consideration. includes both general and specific comments on the Policy Letter. Of primary significance are the following comments:

Concerning the Staffs application of the " Substantial Increase" standard (see USEC General Comment No.1), USEC believes that the Policy Letter should be modified to make the expectation clear that backfits will be justified on the basis of ouantitative analyses (including the $2,000 per person rem conversion factor) absent exceptional circumstances, and to eliminate the " net benefits" approach. These and other proposed modifications discussed in our comments would make the Staffs guidance consistent vdth NUREG/BR-0058, Rev. 2 and impose upon the Staff the same burden it has when doing cost /be=fi: analyses on other licensing or regulatory actions.

Concerning the Pdicy Letter's reference to plant modifications based on the Updated Safety Analysis Reports (see USEC General Comment No. 2), it remams USEC's position that the backSt provision included in Part 76 was intended to become effective and to be applied when the fmal 10 CFR Part 76 became effective, on October 24,1994. Therefore, if, as a result of the DOE SARUP effort and/or USEC's amendtnent request, the NRC believes that additional changes in facilities, equipment, 9705300042 970527 l

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• UEEC 301-564-2210 1937,05-27 16:25 n214 P.03 20 t

Rulemakings and Adjudications Staff May 27,1997 GDP 97-0084 Page 2 TSRs, procedures, or organization are required beyond those proposed by USEC, such changes must bejustified under the backfit rule.

As reflected in Attachment 1, USEC has fundamental concerns with the Policy Letter and we believe significant modifications are needed to bring the Policy Letter into conformance with applicable NRC regulations and existing StaIT guidance documents before it is finalized and implemented by the Staff.

The Nuclear Energy Institute (NEI) is also providing comments to the NRC on the Staff's Policy Letter. USEC concurs with NErs comments, which underscore and support our views.

We would be pleased to discuss these comments with you, Please contact me at (301) 564-3413 or Ms. Lisamarie Jarriel at (301) 564-3247.

Sincerely, j

S.D. koShf Robert L. Woolley N 2 clear Regulatory Assurance and Policy Manager l

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FRCt1 sVSEC 301-564-3210 1997.05-27 16:26

1. 314 P.04<20 C05BfENTS ON NMSS POLICY AND PROCEDURES LETTER 1-53 GDP PLANT SPECIFIC AND GENERIC BACKMT MANAGEMENT General Comments

1. Application of "SubstantialIncrease" Standard: Appendix 3 to the draft policy / procedure is entitled, " Guidance on Application of the ' Substantial Increase' Standard." It discusses the interpretation of the " substantial increase" standard in a manner which is not fully consistent with NUREGlBR-0058, Rev.2, Regulatory Analysis Guidance of the U.S. Nuclear Regulatory Commission, (which it cites as a principal reference). It also inappropriately reduces the burden placed on the NRC Staff by NUREG/BR-0058 to justify a determination that a proposed backfit would provide a " substantial increase" in ov 'rall protection. Furthermore, it contains criteria which should not be considered in making the " substantial increase" determination. In patticular:

(a)

The " substantial increase" detennination standard in 10 CFR Q 76.76 states that except as provided elsewhere in the regulation:

The Commission shall require the backfitting of a plant only when it determines... that there is a substantial increase in the overall protection of the public health and safety or the common defense and security to be derived from the backfit and that the direct and indirect costs of implementation for that plant are justified in view of this increased protection.

NUREG/BR-0058, Rev. 2 references the $2,000 per person-rem value used by the NRC for assessing the costs and benefits (and other regulatory actions) that are intended to reduce radiological exposures. Appendix 3 of the draft policy / procedure however, entirely dismisses the use of the $2,000 per person-rem conversion factor as "not appropriate since the risk associated with enriched uranium exposure is primarily chemical toxicity, not radiological."

FROM sUSEC 301-554-3210 1997,0s-27 16:26

1. 314 P.05/20 GDP 97-0084 Anachment 1 1

May 27,1997 Page 2 of 13 There are, however, some radiological risks at the GDPs and to the extent that a proposed backfit is intended to address such risks, there is no basis for not employing the NRC's accepted tool for capturing the monetary worth of a given amount of radiation exposure.

If the justification for a proposed backfit is based in whole or in part on radiological exposure considerations, there is on basis not to use the $2,000 per person-rem conversion factor. If the NRC does not use that factor, it will be treating USEC differently than all other NRC licensees when there is no basis for such differences. Furthermore, the Staff should consider whether there is some other comparable measure of the relative value of the risk associated with exposures to chemical hazards of radioactive materials. For such chemical hazards, a linear no-threshold approach should not be utilized If chemical 4

toxicity is the predominant hazard and NRC regulatory actions will be focused on that has.ntd, failure to establish a quantitative measure similar to the $2,000 person-rem value would make the NRC's cost / benefit analyses arbitrary and subjective.

(b)

Instead of using the conversion factor, the policy letter recommends that the Staff use the

" net benefits" approach, discussed in NUREG/BR-0058, Rev. 2, when addressing substantial increase under 10 CFR { 76.76. However, a " net benefit" is not necessarily equivalent to a "substantialincrease," even in qualitative terms. In NUREG/BR-0058, Rev.

2, the Staff repeats the Commission's views (Srst expressed in the preamble to the 1985 10 CFR Q 50.109 backfit rule) thr. " substantial" means important or significant in a large amount, extent or degree. In applying such a standard, the Commission would not expect that safety improvements would be required as backfits if they result in less than a f

significant benefit to the public health and safety regardless of cost. The " net benefit" standard prescribed in the policy letter does not meet the Commission's test that the proposed action increase public health and safety in an important or significant manner.

This is further exacerbated by the inability to accurately calculate safety benefits. The use of the " substantial increase" test prevents expenditure of resources on changes resulting in trivial safety benefits. For example, a proposed action could result in little safety benefit but if the analyzed cost is also small, the prop osed action could be shown to result in a " net j

benefit" resulting in the action being imposed on the GDP(s). Such a decision would violate

FROM U5EC.

301-564-3210 1937.05-27 16827 2314 P.06 20 Anach:nent I GDP 97-0084 htly 27,1997 Page 3 of13 the ir, tent of the Q 76.76 rule and potentially distract allinvolved from those issues of real safety significance.

(c)

In Appendix 3, the NRC Staff has also stated that it will use a " qualitative non-monetary methodology to derive the safety / safeguards benefit.." This does not appear to be consistent with NUREG/BR-0058, nor does it appear to place a sufficiently high burden on the NRC Staff to justify a finding that a proposed backfit will meet the " substantial increase" requirement. This represents a significant deficiency in the draft policy.

Throughout NUREGGR-0058, the NRC Staff has made it clear that anantitative analyses are much preferred over qualitative ones, even if values and impacts cannot be expressed in " monetary" terms (i.e., 52,000 per person-rem). In particular, NUREG/BR-0058, Rev.

2 (pp. 20-21) states:

Fsomated values and impacts should be expressed in monetary terms whenever 1

possible; Consequences that cannot be expressed in monetary tenns should be... quantitied in appropriate units to the extent possible;

[For materials licensees] the staff needs to make every reasonable effort to apply alternative tools that can provide a quantitative perspective... conceming the value of the proposed action; Even inexact quantification with large uncertainties is preferable to no quantification,

[Where PRAs or other statistics-based analyses are not available] the generally recommended approach is to utilize whatever data may be available within a simplified model to provide some quantitative perspective;

[Where quantification is not possible,] reliance on the qualitative approach should be a last resort, to be used only after efrogs to develop pertinent data or factuaj information have proven unmecessful; [ emphasis added] :

Certain issues, such as those involving emergency preparedness, security, and personnel requirements, tend to fdl into [the] category (of issues requiring qualitative analyses].

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FPoti tUSEC 301-564-321o 1997.05-27 16:27

1. 314 P.07<20 Anachment 1 GDP 97-0084 May 27,1997 Page 4 of13 j

Contraiy to the above statements, Appendix 3 of the draft policy letter broadly concludes, with no basis, that qualitative analyses will be used to assess any potential backfit at the I

GDPs, regardless of whether reasonable, quantitative data can be obtained and regardless f

of the nature of the backfit. Thus, proposed changes to emergency planning requirements vill be treated in the same manner as proposed changes to areas where there may be considerable opportunity for quantification, such as accident analysis results. This is a sipificant departure from NUREG/BR-0058, Rev. 2 and it is not justified by the Staff. Its effect is to substantially and summarily reduce the reasonable burden on the NRC Staff to base proposed backfits on quantifiable ground where it is practicable to do so. Furthermore the guidance in Appendix 3 is so general that it is our belief that it would be very difficult for the Staff to assure any degree of consistency in the preparation of regulatory analyses 4

when relying on qualitative arguments. This could create, at least, the perception that the decision makmg process is " arbitrary and capricious." Despite the cautions in the NUREG that analyses of this sort should be subject to a higher level of scrutiny because of the degree ofjudgement involved, the policy letter suggests no such process.

(d)

NUREG/BR-0058, Rev. 2, Section 4.3.2, " Estimation ofImpacts" describes the steps that 4

must be taken when the analysis of the impact on the license results in costs that are so high that future operations are not economically feasible. Because of the age and nature of the GDP design, there are many possible new regulatory demands for which the cost impact could be so severe that they would threaten GDP economic viability.

The GDPs have accumulated over 125 plant-years of safe operation. Existing accident analyses do not demonstrate a high public health and safety or environmental risk.

NUREG-1140, "A Regulatory Analysis on Emergency Preparedness for Fuel Cycle and Other Radioactive Material Licensees," concludes that the potential public radiological threat associated with similar facilities is less than that of reactors. So while it is hard imagine that there could be an issue of such safety importance that its implementation is absolutely necest,ary at whatever the cost, we are concerned that the proposed reliance on qualitative analysis does not provide an adequate consideration of these issues. The issue

FPOri IUSEC 301-56-1-2210 1997,05-27 16:28 88214 P. 03 '20 GDP 97 0084 May 27,1997 Page 5 of13 ofpremature facility closure forced by a backfit should be addressed in the Staff's guidance.

(e)

USEC does not agree that the " example" cited in Appendix 3 properlyjustifies the use of qualitative analyses. In particular, the Appendix states:

[T]he incorporation ofindustry standards (including revisions to existing codes and standards) into NRC rules or staff positions.. can provide the basis for a finding that a proposed backfit meets the " substantial increase" standard..

Maintenance ofcompliance with voluntary industry standards is an important good practice and specific versions of such standards are often committed to by a licensee or certificatee in regulatory documents. When a new or revised standard is issued, howcVer, the changes do not necessarily provide a " substantial increase" in safety or security, nor is it certain that for a particular facility such changes are cost-justified. If the example is intended to mean that the mere existence of a code or standard revision warrants a backfit and demonstrates that a " substantial increase" in protection would be provided by the backfit, we do not agree.

(f)

Finally, Appendix 3 lists nine "[a]dditional factors" that may be used to assess the

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" substantial ircrease" standard.

Several of these appear irrelevant or at best only tangentiaT.y related to the important finding which the NRC must make to justify a back5t.

h is not at all clear, for example, how "[g]reater uniformity of practice" or "[f] ewer exemption requests and interpretative debates" would be relevant to a determination by the NRC that a backfit would provide a "substantialincrease" in safety or common defense and 4

security. We have similar reservations about factor 4 ("[g]reater specificity in existing generally stated requirements") and factor 6 ("[g]reater confidence in the reliability and timeliness ofinformation or programs").

Recommendation: Appendix 3 should be modified to be consistent with NUREG/BR-0058, Rev.

2 and to: 1) impose upon the Staff the same burden it has when doing cost / benefit analyses on other licensing or regulatory actions, by making the expectation clear that backfits will be justified on the t

basis of quantitative analyses absent exceptional circumstances,2) confirm that the $2,000 per

FPON tUSEC 301 4 64-3210 1997 05-27 16:25 38314 P.03 20 Atachment 1 GDP 97-00S4 May 27,1997 Page 6 of13 person-rem conversion factor applies, 3) de5ne a similar standard for chemical exposures from radioactive materials, 4) address the issue of premature facility closure forced by a backfit, and 5) better derme guidance to the Staff for applying qualitative methods when necessary.

2. Plant, Procedure or Organizational Modifications Based on the Updated Safety Analysis Reports (SARUP): Appendoc 4 to the policy letter, " Guidance for Backfit Detemunations," states on p' age 4 that:

The staffs review and comments on the updated SAR, as committed by the Certificatee in Issue 2 of the Compliance Plan, is a compliance issue and is a01 considered a backfit.

USEC would like to clanfy its understanding of both this specific statement and its relationship to our overall interpr<.ation of the backfit rule.

Compliance Plan Issue 2 entitled, " Update the Application Safety Analysis Report," was written to document and address the fact that the existing Safety Analysis Reports (SAR) require updating and revision to include the results of the DOE SARUP effort. USEC is required to update and revise the SARs and to propose any associated changes to the plant facilities, equipment, Technical Safety Requirements (TSRs), procedures, and organization in its August 17,1997 certification amendment.

If, as a result of the DOE SARUP effon and/or USEC's amendment request, the NRC believes that additional changes in facilities, equipment, TSRs, procedures, or organization are required, such changes must be justified under the backfit rule Such unidentified future changes may not be 2

encompassed by the existing Compliance Plans, and the backfit rule applies and requires appropriate justification of such changes before their imposition. This is the case because the backfit provision included in Part 76 was clearly intended to become effective and to be applied It shot 0d be noted that the fo!!owing statement in the Staffs Compliance Evaluation Reports l

appears to state a contrary position: "(s]ince the SAR Upgrade is required to achieve compliance with NRC reqmrements, any safety improvements called for by the SAR Upgrade would not be subject to thebacidit provisions in 10 CFR 76.76. PODP CER, p.118; PORTS CER, p.131.

FROf1 USEC 301-564-3210 1997 05-27 15128 88314 P.10 20 Anachment 1 ODP 97 0084 May 27,1997 Page 7 of13 when the final 10 CFR Part 76 became effective, on October 24, 1994. The basis for this i

interpretation is provided in the attached paper, " Analysis of Applicable " Baseline" for Purposes of Backfitting Rule (10 CFR 76.76)."

Recommendatino: The words, "

. at the time of the initial certification" in Section I.B of the policyletter should be modified to read, ".. when Part 76 became effective on October 24,1994."

3. ChemicalHazards: 10 CFR Q 76.76 requires that the "potentialimpact on radiological exposure of facility employees" be considered in the evaluation of whether there is a substantial increase in the overall protection of the health and safety ofthe public. Section HI.B 5.b, page 10, of the policy letter, however, states that the regulatory analysis for a proposed backfit should address the

" potential impact on radiological and/or chemical exposure of plant employees." Regulation of hazards associated with or derived from non-radiological materials is beyond the NRC's regulatory jurisdiction and the language of the policy letter is not consistent with the regulation.

EtsmDJnendation: The policy letter should be modified to comply with the rule. Furthermore, in light of the general purpose of the backfit analysis, the review of the impact to workers should consider the change in exposure as a result of the backfit when compared to applicable impacts already considered in the certification basis.

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4. Policy Letter Scope: The policy letter appears to only apply to NMSS Staff personnel. For example,Section II.A states that "NMSS staff is responsible for identifying proposed backfits."

The policy letter does not impose similar requirements on the Regional Stafr hich will originate w

and issue its own regulatory correspondence.

Section IV.B. describes the nppeal process and states that the certificatee msy appeal to NMSS "even if the backtits wexe deaied cr decided by the regio 1" Hgnever, the policy letter does not contain provisions for the Regional Staff to deny or decide a backfit appeal.

Recommendation: A policy document that implements the backfitting provisions of 10 CFR {

76.76 for both Regional and Headquarters Staff should be developed.

FVJ1 UEEC 301-564 '3210 199T _. 05 - 2*'

16:29 n214 P.11 20 GDP 97-00S4 May 27,1997 Page 8 of13 Specific Comments Df nitions.Section I fi

1. Section ILA, Identifying BacAfits: Although a distinction between plant specMc and generic backfits is made in the definition section of the policy letter, the guidance itself does not make a clear distinction.

Section II.A refers to the process of identifying bacidits in " generic communications" and requhes the review and approval of such communications by the Director, NMSS prior to issuance. This differs from the process followed by the Staff when issuing other generic communications, such as Bulletins and Generic Letters. In that case, additional review and approvalis required by the Committee to Review Generic Requirements (CRGR). USEC believes that the process defined for identifying and implementing generic backfits should generally follow the process for plant specific backfits with the additional step of review and approval required by the CRGR.

Furthermore, since there are only two GDPs, the policy letter should require that any correspondence sent to USEC which requires a response be first reviewed for generic applicability before issuance., If generic, the process should require a backfit review and CRGR approval pnor to issuance.

l Refommendatirl: The Staffs backfit policy letter should be modified to specify that all correspondence!.o USEC regarding the GDPs, and requiring a response, be reviewed for generic applicability before issuance. If determined to be generic, the process should require a backfit review and CRGR approval prior to issuance.

2. Section ILA.2, Identifying Rackfits, Cernficatec Claims: The policy letter uses the term

" commitment" to describe the crocosed new requirements or newly imposed NRC Staff positions that may constitute a potential backfit. Use of the term in this manner does not seem to be necessary or appropriate. For example, in Sectior. II. A.2 of the policy letter, the NRC Staff states

"[a] certificatee may claim that a proposed requirement, commitment, or staff position is a potential

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FPCri IUSEC 301-56-1-3210 1997 CS-27 16s29

1. 314 P,12'20 Anachment 1 GDP 97-0084 May 27,1997 Page 9 of13 i

backfit..." A potential backfit involves a new or amended rule or the imposition of a new Staff

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position. Commitments are made by the certificatee and until they are proposed for " imposition" by rule, order, or certification condition, they would not constitute a backfit. Therefore, the term 1

" commitment" should not be used in this context.

RecommendMLeg: Delete the term " commitment" from the policy letter in the following places:

- Page 1, Section LC, Paragraph 1, Line 6,

- Page 2, Section H.A, Paragraph 1, Line 3,

- Page 2, Section H.A.2, Line 1,

- Page 3,Section II.B, Paragraph 1, Line 2,

- Page 3,Section II B.I.c(3), Line I and Line 7,

- Page 7,Section II.C.1.b(1), Line 1, i

3. Section ILC.1.a(1), When a Documented Evaluation is Used: This Section describes the

information required to be documented by the Staff when it is detennined that a modificatien is necessary to bring the plant into compliance with the certificate. The information is actually reauired by 10 CFR { 76,76(a)(6).

Recommendation: Change "should provide" to 'must include" in Line 3 on the top of page 6 to be consistent with 10 CFR @ 76.76(a)(6).

4. Section ILC.1.a(2), #2cAfits Identified by the Staff. The references to the worker in this section and Section HI, page 9 and Section III.B.S.b, page 10, go beyond the language of 10 CFR { 76.76.

The sta1Tmay not vary the terms of a regulation in an informal guidance document.

Recommendation: The policy letter should be modified to be consistent to the rule.

i S. Section ILC.1.b(1)(b), When a Regulatory Analysis is Used: The policyletter suggests that the Staff may Lecommend improvements even when they do not meet the backfit test. It should be j

made very clear in such cases that the proposed improvement is only a reconunendation and not

f:P0ri iUSEC 201-564-3210 1937.05-27 16:30

• • 214 F.12 '20 Anachmem 1 GDP 974084 May 27,1997 Page 10 of13 required. It should also be clear that any " recommendations" that the certificatee considers a backfit wotJd be subject to appeal, if necessary.

Tids same comment applies to Section II.C.2.b(1)(e), Rackfits Idennfled by the Certificates.

Recommendation: The policy letter should be modified to clearly distinguish between a Staff recommendation and an imposed requirement and ensure that the appeal process applies to both.

6. Section ILD, Information Requests: With respect to the review of amendment requests or

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recertification, the policy letter states that if information is part of the " standard procedures applicable to the review" analysis or justification for an information request is not necessary. It is unclear what the " standard procedures" are that are referred to in this section i

i Recommemiation: These " standard procedure" documents should be made available to the public a

so a complete understanding of this policy guidance can be realized.

7. Section ILD,Information Requests: The policy letter states that "... requests for information, including fact-finding reviews, inspections, and investigatioru of accidents or incidents to determine compliance with existing plant requirements are not conndered within the scope of the backfit rule." It should be clarified that although these types of reviews in and of themselves do not constitute a backfit, they can result in new interpretations of existing plant requirements, they are, by definition, within the scope of the backfit mle.Section I.B of the policy 1ctter defines a backSt as "[a] modification of or addition to systems, structure, or components of a plant...any of which results from...the imposition of a regulatory staff position interpreting the Commission rules or a certificate commitment that is either new or different from a previous staff position."

Recommendation: The policy letter should be modified to clarify the statement in Section II.D that begins, "Moreover, requests for information including fact-finding reviews.. "

8. SectionILD.LInformation Requests: The policy letter specifies that when the Staffis preparing and approving information requests to the certificatee, and the request requires an explanation, the

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FROM 8USEC 301-564-3210 1997.05-27 16:30

1. 314 P.14/20 GDP 97 0084 Page 11 of13 May 27,1997 L

a statement must be prepared to include, in part, a " description of the need for the information in j

terms of potential safety benefit."

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Rec 9mmendation: When preparing the aforementioned explanation for the an information request, j

the explanation should also include the applicable regulatory requirements and references.

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Revulatory Analysis.Section III

9.Section III.B, Regulatory Analysis: 10 CFR Q 76.76 requires a " systematic and documented analysis pursuant to paragraph (b) of[76.76] for backfits which it seeks to impose." The elements of that analysis as defined in { 76.76(b) are for the most part included in Section III.B.1 through III.B.5 of the policy letter. As pointed out in USEC's General Comment No. 3, reference to the potentialimpact on the chemical exposure of plant employees in Section III.B.5.b should be deleted to comply withthe rule. Similarly,it does not appear that the provisions of g 76.76(b)(8), namely the consideration of ".. potential impact of differences in plant type, design, or age on the <

relevancy and practicality - f the proposed backfit;" are addressed in the policy letter.

Recommendation: The policy letter should be modified to comply with the rule.

10. Section IILB.3, Regulatory Analysis: The wording in this section is not consistent with the rule.

Recommendation: In Section III.B.3, revise " potential impact on safety / safeguards" to " potential safety impact" to be consistent with 10 CFR { 76.76(b)(6).

Princioni Mechanisms Used to Estahtish Communicate StalTPositions. Annendir 1

11. Appendix 1, Mechanisms Sometimes Used to Communicare Staff' Positions: It is not clear what the difference is between " Unresolved issues resulting from inspections" on Page 2, and " Inspection Findings" on Page 3.

Becnnimendation: Delete " Unresolved issues resulting from inspections" on Page 2.

FRoM"tUSEC 301-564-3210 1997,05-27 16:31

1. 314 P.15'20 Anach:r.ent 1 ODP 97-0084 May 27,1997 Page 12 of13

12. Appendix 1, Mechanisms that Should Not be Used to Communicate Staff Positions: This Appendix lists mechanisms that should not be used to communicate legal requirements or staff positions. USEC believes NMSS Policy and Procedure Letters should be added to that list.

Recommendation: Add "NMSS Policy and Procedure Letters" to the list of mechanisms that should not be used to communicate staff positions.

ftvidance on Backfit Determinations. Apnendir 4

13. Appendix 4, Standan/ Review Plans: There is no approved Standard Review Plan (SRP) for the GDPs. Furthermore, the Certi6 cation Application was not written to or reviewed / approved against a SRP or similar document. There is no regulatory requirement for the GDPs to meet any SRP.

Therefore, to base a review on any SRP requirement would, in itself, be a backfit.

Recommendation: All references to SRPs should be removed from the policy letter.

14. Appendix 4, liegulatory Guides; The section in Appendix 4 which discusses Regulatory Guides appears to imply that new or revised regulatory guides may not fall within the scope of the back6t -

rule. It should be clanfied that future regulatory guides should be reviewed as potential backfits.

Recommenda_ tion; The policy letter should be modified to indicate that future regulatory guides are within the scope of the backfit rule.

15. Appendix 4, Regulatory Guider It is not clear what is meant by the term " generic implementation determination."

Recommendation: Please explain the term " generic implementation determination" and its significance.

16. Appendix 4, Regulatory Guides: The second paragraph under Regulatory Guides suggests tha Staff action with respect to a specific cenificatee is a " plant specific backfit." This appears in

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f conflict with the definition of generic backfit in Section I.B where a generic backfit is defined as one that applies to two or more plants, regardless ofwhether more than one certificatee is involved.

i USEC believes that a generic backfit should be defined to be one that applies to two plants, without reference to the number of certificatees.

i Recommendation: Replace the word "certificatee" with " plant" in the last line under Regulatory

- Guides so that the sentence reads, ".

with respect to a specific piant that expands on..."

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7 FROM IUSEC 301-564-3210 1997,65-27 16:31

1. 314 P.17/20 ANALYSIS OF APPLICABLE " BASELINE" FOR PURPOSES OF BACKnrnNG RULE (10 CFR G 76.76)

L Introduction A.

10 CFR f 76.76(a)(1) states:

Backfitting is defined as the modification of; or addition to, systems, structures, or components of a plant; or to the procedures or organization required to operate a plant; any of which may result from a new or amended provision in the Commission rules or the imposition of a regulatory staff position interpreting the Commission rules that is either new or different from a previous NRC staff position. (emphasis added.)

i B.

As currently written, this provision does not explicitly address what " baseline" applies for purposes of conducting backfits. In particular, may an NRC position or interpretation raised as part of the initial certification or Compliance Plan implementation process constitute a potentialbackfit?

IL Pre-Proposed Rule History A.

In SECY-93-285A (November 24,1993) regarding the draft proposed 10 CFR Part 76, the NRC Staff had initially recommended the following language for section 76.76(a)(1):

Backfitting is defmed as the modification of; or addition to, systems, stmetures, or components of a plant; or to the procedures or organization required to operate a plant; any ofwhich may result from a new or amended provision in the Commission rules or the imposition of a regulatory staff position interpreting the Commission rules that is either new or different from the staff position at the time ofissuance of the nrst annual certificationfollowing the initial certification under this nart.

(emphasis added.)

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FPCM s tJSEC 301-564-3210 1997,og 16:31

1. 314 P.18/20 GDP 97 0084 Page 2 of 4 May 27,1997 B.

In explaining this provision, the Staff stated:

In recognition of Commission interest, the staff has further considered a backfit requirement in the proposed rule and concluded that such a provision could be included. However, because the staff has no experience with backfit provisions appropriate for the two gaseous diffusion plants, the backfit provision recommended by the staffin the rule reflects provisions contained in 10 CFR Part 50, with the baseline to be established after thejirst annual certification following the initial certification.

Other options with respect to_ the haseline include the first cenification. cfrtification after several years nr even the existing clant configuration orior to the first certifh.ation. (emphasis added.)

C.

This draft provision would have established the first annual certification following the initial certifice. tion as the applicable " baseline."

D.

However, the words "at the time ofissuance of the first annual certification following the initial certification" were excluded from the final version of proposed section 76.76, in accordance with the Commission's exnlicit directive in a Staff Requirements Memorandum (SRM) dated January 7,1994, that "the backfit criteria should go into effect svh9n_ti e fmal t

rule aces into effect." (emphasis added.)

E.

The Commission's January 7,1994 SRM was clearly intended to establish that plant, procedure, or organizational modifications or additions to the " existing plant configuration" which are necessitated by a new or different NRC Staff position would be subject to the backfit rule.

1.

Had the Commission intended for NRC regulatory actions or positions prior to completion of the first certification or to the completion of a later certification decision to be exempted from backfit considerations, it would have provided sorne indication to that effect. No suchindication exists.

FFOM IUSEC 3c1 564-3210 1997 05-27 16132 18314 P.13/20 GDP 97 0084 May 27,1997 Page 3 of 4 2.

By simply directing the StatTto make the backfit provision effective "when the final rule goes into effect," the Commission intended to afford to USEC backfit protection as of that date.

IIL Pronosed Rule _ History l

A.

In the Statements of Consideration accompanying the proposed Part 76, Commissioner Rogers sought comments on whether the provisions of section 76.76 should become effective immediately when 10 CFR Part 76 became final, as would happen were the proposed section to remain unchanged. 59 Fed. Reg. 6792,6797-98 (February 11,1994),

B.

USEC and DOE submitted comments statmg that the provisions of section 76.76 should be made effective when the rule became final.

1.

In endorsing the proposed backfit provision as written, USEC stated that "the backfit provision should apply to any plant changes necessitated by NRC rules or interpretations after Part 76 becomes fmal...."

2.

In stating that there was "no need to... delay the effectiveness of s 76.76," DOE noted that it would " continue to give the NRC staff the full benefit ofits experience in the oversight of gaseous diffusion plant operation during the past 40 years...."

IV.

Final Rule History A.

TheNRC agreed with the above comments, and the fidal section 76.76 was left unchanged.

i In particular, in adopting the final rule, the NRC discussed Commissioner Rogers' inquiry B.

as follows:

i

e FR Ot1 sUSEC 201-564-3210 1997,05-27 16:32 4314 P.20 20 1

~

At:achment 2 GDP 97-0084 Page 4 of 4 May 27,1997 Commissioner Rogers was particularly interested in... [w]hether the provisions of

{ 76.76 should become effective immediatel when 10 CFR Part 76 becomes final, f

as would happen were the proposed section to remain unchanged..

A number of commenters agreed that the provisions of 6 76.76 should be made effective when the rule becomes fmal. There were no comments received in support of a delay in the implementation of the backfit provisions..

The final ruleis unchanged.

V. YYistory of Safe Oncrations A.

If the GDPs had an unsafe operating history, it might then perhaps be reasonable to establish a backfitting baseline later that October 24,1994. However, in severalinstances, the NRC and DOE have repeatedly acknowledged that the GDPs have operated safely for over 40 years, that Part 76 requirements are similar to applicable DOE requirements, and 1 hat the NRC simply intends to extend and rely upon the " existing DOE safety basis."

\\

1.

The Statements of Consideration accompanying the proposed Part 76 state, in part:

The Commission recognizes that the [GDPs) were designed and constructed before the new certification requirement was established in the Energy Policy Act of 1992, and that they have operated safei for approximately f

forty years.

This proposed rule is based upon comparable NRC requirements that have been in place for a number of years, and that the staff behaves are adequate and appropriate for the [GDPs], and are at least as striagent as the DOE requirements under which the plants currently operate.

1 59 Fed. Reg. 6792 (February 11,1994).

2.

The Regulatory Analysis on the final 10 CFR Part 76 states, in part:

[The promulgation of10 CFRPart 76] should have no significant impact on the public as there will be no change to the level of protection of public health and safety currently required for the plants by the Department of Energy (DOE). Certification will be mamly based on requirements which incorporate standards already used by NRC for regulating other nuclear fuel cycle activities ofprivate industry, which are similar to safety practices used by DOE at its facilities.