ML20151P568
| ML20151P568 | |
| Person / Time | |
|---|---|
| Issue date: | 01/23/1986 |
| From: | Palladino N NRC COMMISSION (OCM) |
| To: | Broyhill J, Moorhead C HOUSE OF REP., ENERGY & COMMERCE |
| Shared Package | |
| ML19302H420 | List: |
| References | |
| NUDOCS 8601310184 | |
| Download: ML20151P568 (11) | |
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UNITED STATES
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CHAIRMAN anuary 23, 1986 The Honorable Carlos J. Moorhead Subcommittee on Energy Conservation and Power Committee on Energy and Commerce-United States House of Representatives Washington, D. C.
20515
Dear Congressman Moorhead:
Your November 5, 1985 letter indicates your strong support for the Commission's recent adoption of the backfit rule, 10 CFR 50.109.
We appreciate your support and your understanding of the potential for difficulties during the initial implementation period.
Regarding the October 18, 1985 memorandum from Mr. Dircks to Commissioner Asselstine, the memorandum identifies some situations in which the staff is attempting to make what may be difficult interpretive judgments.
However, the issues involved are subject to further Commission deliberation and final Commission approval.
In addition, at my request, the staff is preparing procedures for implementing the backfit rule for Commission review and approval.
The answers to each of your specific questions are enclosed.
Commissioner Asselstine has the following comments:
Since your letter was prompted by the October 18, 1985 memorandum that responded to questions I raised, I feel obliged to clarify my views on the backfit rule.
I, like you, believe that it is crucial to promote the disciplined promulgation of requirements on the nuclear industry.
However, the backfit rule goes far beyond a call for discipline.
Rather than merely requiring the documentation of the rationale for a new requirement, the backfit rule erects substantial barriers to improving safety', skews the cost-benefit analyses against safety, injects indefensible analyses into the decision-making process, and ignores uncertainties in reactor risks.
I was and am opposed to the backfit rule.
The consequence-of that rule is to limit the NRC staff's and even the Commission's ability to identify and correct safety weaknesses at the nuclear power plants in operation and under construction in this country.
As a result, these weaknesses are likely to persist until they contribute to serious operating events or accidents which pose a direct threat to the health and safety of the public.
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%*,...J January 23, 1986 CHAIRMAN The Honorable James T. Broyhill Committee on Energy and Commerce United States House of Representatives Washington, D. C.
20515
Dear Congressman Broyhill:
Your November 5, 1985 letter indicates your strong support for the Commission's recent adoption of the backfit rule, 10 CFR 50.109.
We appreciate your support and your understanding of the potential for difficulties during the initial implementation period.
Regarding the October. 18, 1985 memorandum from Mr. Dircks to Commissioner Asselstine, the memorandum identifies some situations in which the staff is attempting to make what may be difficult interpretive judgments.
However, the issues involved are subject to further Conmission deliberation and final Commission approval.
In addition, at my request, the staff is preparing procedures for implementing the backfit rule for Commission review and approval.
The answers to each of your specific questions are enclosed.
Commissioner Asselstine has the following comments:
Since your letter was prompted by the October 18, 1985 memorandum that responded to questions I raised, I feel obliged to clarify my views'on the backfit rule.
I, like you, believe that it is crucial to promote the disciplined promulgation of requirements on the nuclear industry.
However, the backfit rule goes far beyond a call for.
discipline.
Rather than merely requiring the documentation of the rationale for a new requirement, the backfit rule erects substantial barriers to improving safety, skews the cost-benefit analyses against safety, injects indefensible analyses into the decision-making process, and ignores uncertainties in reactor risks.
I was and am opposed to the backfit rule.
The consequence of that rule is to limit the NRC staff's and even the Commission's ability to identify and correct safety weaknesses at the nuclear power plants in operation and under construction in this country.
As a result, these weaknesses are likely to persist until they contribute to serious operating events or accidents which pose a direct threat to the health and safety of the public.
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. O Your letter expresses concern about whether the Commission intends to apply the backfit rule selectively to new or modified requirements or to interpret the rule narrowly.
I too share that concern.
Apparently the Commission intends to apply the backfit rule with its high threshold and cost-benefit analysis only to those new or modified Commission requirements which are intended to increase safety and not to apply the rule when new or modified requirements result in a decrease in the level of protection.
However, I read nothing in the final backfit rule which allows such r narrow interpretation of the rule.
Stability and reasoned regulation are goals I share with you.
However, the backfit rule will not contribute to achieving those goals.
The backfit rule further ensures a continuation of the piecemeal, reactive approach to safety which has'been responsible for many of the failures of the past.
The rule moves the Commission in the wrong direction
-- a direction that will likely result in further serious operating events, more accidents, and a lower level of safety than that achieved in many more forward-thinking countries in the world.
Commissioner Bernthal adds:
I had fully expected to support the Commission's final rule on backfitting last fall.
But an ill-advised, largely misunderstood eleventh-hour decision by the majority added a-destructive provision that has already demonstrated what I had warned against at the time:
the rule was at best an exercise in pointless symbolism that would confuse the public and our licensees by misrepresenting the role of the Commission in rulemaking; at worst the rule contained the seeds for rulemaking chaos, with litigative risks, unpredictability, and lengthened timetables that would result in more, rather than less uncertainty in the Commission's entire licensing and regulatory process.
That such a backfitting rule was not in the public interest or in the interest of our licensees should have been self-evident.
Where the Commission should have promoted predictability and order in rulemaking, it instead set -the stage to reap the chaos sowed when it approved the backfit rule last year.
Rather than applauding the backfit rule as promulgated, Congress should therefore urge the Commission to reconsider the present form of the rule before further damage occurs.
In a word, my principal quarrel with the rule adopted by the Commission was its inclusion of rulemaking in the definition of backfitting.
Indeed, the mere idea of imposing its own rule on the statutory procedures for rulemaking as set forth in the Administrative Procedures
Act should have given the Commission majority long pause, to say the least.
But in an apparent desire to appear to voluntarily circumscribe its own authority and flexibility for rulemaking (when it cannot, of course, do so), the Commission threw the baby out with the bathwater, and chose to run the risk of creating new, legally binding requirements for rulemaking, requirements which have widened the target for anyone seeking to challenge a final rule.
Meanwhile, having been relegated to a realm that amounts to prncedural " autopilot", the often difficult question of cost-benefit now appears conveniently to lie beyond the reach of the Commission's discretion and responsibility in rulemaking.
The entire backfit rulemaking was undertaken to bring order and accountability to plant-specific modifications heretofore sometimes imposed by Staff without the benefit of systematic evaluation and justification.
But in rulemaking per se, that objective was always well within the Commission's grasp -- it is, after all, the Commission that makes rules.
For good measure, the Commission has the Administrative Procedures Act as a matter of law, and its own Committee to Review Generic Requirements as a matter of internal administrative procedure to assist it in carrying out such considered decision-making.
It was not even clear just who it was the Commission believed would be served by its action.
Far from lending discipline and order to the rulemaking process, what the Commission majority did has already insured that our often long and tortured consideration of rules has become even longer, more tortured, and more confusing.
More ominously, should a future Conmission find its view of common-sense public health and safety measures unduly confused and obstructed by the.backfit rule, I fear that such a Commission may in frustration choose simply to begin issuing by order " rules" that should be subjected to the careful, disciplined process set forth in the Administrative Procedures Act.
The Commission majority should have considered carefully that the backfit threshold criteria applied to rulemaking would apply not just on a plant-specific basis (which it should be recalled was the intent of the original backfitting initiative which I strongly supported), but to generic decisions that would affect dozens of plants, and even more alarmingly, to rulemaking on procedural matters, matters that may or may not have the remotest connection to what the public and our licensees have ever considered a plant "backfit".
The scope of Commission rulemaking responsibilities often involves broad public. policy considerations, and those considerations can rise above elements as simple as
. cost-benefit analysis to reach issues as fundamental as f airness and individual rights.
Examples of the morass into which the Commission majority has wandered are already multiplying in matters under current consideration:
Should there be, for instance, a requirement that radiation workers be provided their dose records annually (as the Commission is currently considering)?
The " benefit" of this "backfit" of Commission rules may seem clear, but it is unlikely ever to pass a cost-benefit test.
Indeed, it is difficult to imagine any rule that would involve the human-factors element of plant operations, and that would also be amenable to straightforward cost-benefit analysis.
Or, will the Commission be forced to scrap the proposed station blackout rule (recently approved 5-0) because of the difficulty inherent in formulating a cost-benefit analysis that can withstand the rigors of cross-examination in court?
That would put the NRC inexcusably and inexplicably out of step with nearly every European country in this arena, and violate what by common agreement is common sense.
The disturbing pattern should by now be clear.
Rulemaking as it exists involves numerous inherent procedural checks and balances to insure that each proposal is carefully considered prior to adoption.
- Indeed, rulemaking is the forum which provides the greatest number of checks against arbitrary action by the Staff or Commission.
Much of the analysis (including cost-benefit) which the new.backfitting rule required is already done informally throughout the process of considering and adopting new regulations, and is always available to any Commissioner wishing to take such analysis into account in making his decision.
If the Commission wished to insure still more structure in the rulemaking process,-structure which could have taken into account every single factor set forth in the backfit rule and more, it had ample means of doing so by simply internal agency management.
Such methods would have reaffirmed existing Commission guidelines to the Staff without opening the door to additional needless litigation as a consequence of vague new, legally enforceable, Commission-created rights added to those already available to all parties under the APA.
It is almost amusing that the only rationale the Commission majority has ever offered for wanting to include rulemaking under the backfit rule was to " discipline" the Commission (i.e., to protect the Commission from itself).
If the l
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- o. Commission was incapable of disciplining itself in the rulemaking process as it stood (what with the existing Committee to Review Generic Requirements and the Commission's uncontested authority and responsibility to instruct the staff), then rule laid upon rule is unlikely to do much to teach this or future Commissions the virtue of self-discipline.
Unneeded law is bad law,.and unneeded regulation is bad regulation.
To the extent that the Commission's Backfit Rule affected rulemaking, it was a very bad rule.
The Commission majority beedlessly imposed on this agency new regulatory obligations in rulemaking that were not only unneeded, but which the majority itself mistakenly hoped and trusted would be of little practical (i.e. legally enforceable) consequence.
Our General Counsel has since made it clear that the majority seriously underestimated the impact of its actions.
Thus, the Commission majority unwittingly committed one of the oldest of errors:
they
-presumed to fix not only what was, but what wasn't " broke".
The Commission majority does not agree with the comments of Commissioners Asselstine and Bernthal.
It further believes their comments are not germane to the responses to your questions; therefore, the Commission has elecut rat to respond to them in this letter.
However, the Commissir
.ully considered the dissenting views at the time tne backfit rule was adopted, and would be pleased to respond further if you so desire.
Sincerely.
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t-Nunzio Palladino
Enclosure:
Responses to Questions
QUESTION 1 Why is it that a change which would constitute a backfit if required of power reactor licensees no longer constitutes a backfit if required of other licensees, in addition to power reactor licensees?
In other words, why would a change constitute a backfit if required only of power reactor licensees.but not a backfit if required of power reactor and materials licensees? -Does the interpretation advanced in Mr. Dircks' memorandum encourage the extension of new regulatory requirements to other licensees in addition to power reactor licensees in order to avoid the analyses required under the backfit rule?
If not, why not?
ANSWER The term "backfit" is. defined in 10 CFR 50.109 and not elsewhere in the Commission's rules.
Nevertheless, it was the Commission's intent that any rulemaking that requires changes in the design, construction or operation of power reactors be evaluated pursuant to the criteria contained in 10 CFR 50.109 even though the rule also affects other licensees.
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QUESTION 2 We do not understand Mr.-Dircks' analysis concerning operating procedures.
Mr. Dircks asserts that changes to Part 20 do not cause modifications of procedures necessary to operate a facility because operating procedures "do not establish' permissible dose levels for people or permissible radiation concentrations."- Rather, Mr. Dircks notes that
" operating procedures take the types of standards set forth in Part 20 as given, and go on from there."
This would appear to be true of most operating procedures, as almost all operating procedures implement NRC rules.
Very rarely would the NRC directly change operating procedures.
Instead, the NRC would change the requirements upon which such procedures are based.
Naturally, changes in the underlying regulations f requently result in the modification of operating procedures.
In this context, could.not the interpretation set forth by Mr. Dircks be used to avoid compliance with the backfit rule's requirements in all situations where a facility's operating procedures implement NRC rules?
ANSWER The Commission has determined that the backfit rule should be applied to the proposed Part 20 revisions.
The staff will be directed to' develop the appropriate backfit analysis.
QUESTION 3 Does the Commission intend that the Staff interpret the backfit rule broadly or narrowly?
Please set forth the specific principles the Commission wishes the Staff to use as guidance in implementing this rule.
ANSWER The Commission intends that the staff apply the principles embodied ~in 10 CFR 50.109 broadly, consistent with the terms.of the rule.
Procedures are being put in place to address both generic and plant-specific backfitting after Commission review and approval.
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a QUESTION 4 It is predictable that the Staff would like to interpret narrowly the backfitting rule.
Indeed, during promulgation of the rule, some members of the Staff argued that the Staff would be unable to. carry out its functions efficiently if it had to do the analyses and provide the
-appeal process required by the backfit rule.
What specific-steps does the Commission intend to take to. ensure that the rule is fully implemented?
ANSWER The Commission is fully aware of the internal pressures which may push the staff toward narrow interpretations of the backfit rule.
However, in fairn'ess to the staff, they are placed in the difficult position of attempting to see that requirements necessary to safety are, in fact, implemented, but in accordance with the appropriate constraints of the backfit rule.
The Commission is in the process of taking the following steps to see that th'e rule becomes fully institutionalized and is effectively implemented in the long term:
Authority and accountability for backfitting has been placed at the highest staff level, the Executive Director for Operations.
Performance involving backfit issues has become a criterion in individual performance appraisals for relevant staff personnel.
Detailed implementation procedures and guidance are now in the process of being developed and approved by the Commission which will clarify for all staff members their responsibilities regarding backfit implementation.
Staff has been given specific training regarding implementation of the backfit rule.
An appeal process and the opportunity for review of a plant-specific backfit by an off. ice outside of the office which originally approved the backfit will be implemented.
The Commission itself will periodically review the progress of this agency's implementation of the backfit rule to see how effectively it is being implemented.
QUESTION 5 Please provide a list of all actions required of licensees since the ef.fective date of the rule, October 21, 1985, that licensees have stated constitute backfitting.
ANSWER Since the effective date of the rule, October 21, 1985, the staff states that the NRC has not imposed any requirements on licensees that licensees have stated constitute backfitting.
However, we have recently received a letter from Duquesne Light Company dated October 31,.1985, providing some details and background information on the matter of pressure isolation valve leak testing for Beaver Valley Power Station, Unit 2.
The letter raises the issue of whether a plant-specific backfit is being required of Unit 2.
Although this letter was not submitted in accordance with the plant-specific backfit procedures (NRC Manual Chapter 0514), the NRC staff currently has this matter under review.