ML20154L045
| ML20154L045 | |
| Person / Time | |
|---|---|
| Issue date: | 10/07/1998 |
| From: | Shirley Ann Jackson, The Chairman NRC COMMISSION (OCM) |
| To: | Inhofe J SENATE |
| References | |
| NUDOCS 9810190124 | |
| Download: ML20154L045 (200) | |
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- 'o,, UNITED STATES jT I 8 o NUCLEAR REGULATORY COMMISSION , A'l '
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..... October 7, 1998 l cwAmnsAw I
P The Honorable James M. Inhofe Chairman, Subcommittee on Clean Air, Wetlands, Private Property and Nuclear Safety United States Senate Washington, D.C. 20510
Dear Mr. Chairman:
Thank you for the opportunity to appear before your Subcommittee on July 30,1998, to discuss important issues regarding the Nuclear Regulatory Commission and the commercial nuclear power industry. I appreciate your candor and insights regarding the Commission and look forward to working with you and Members of your Subcommittee in the future.
I am enclosing the NRC's responses to the post-hearing questions that were submitted by Members of the Committee for the hearing record. Please contact me if I can be of further assistance.
Sincerely, Q.
Enclosure:
As stated cc: Senator Bob Graham 3
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OUESTION 1. What is the NRC's plan for continued oversight and inspection at l Millstone Unit 3 to ensure safe operation of the plant?
l ANSWER. l l
Millstone Unit 3 is on the NRC watchlist as a Category 2 plant, which ensures that it receives I
increased NRC management oversight until such time as plant performance dictates that a category change is called for. Region I has the responsibility for management oversight and i inspection and has assigreed a senior NRC manager and staff to implement the inspection program to assure the safe operation of the plant. In addition, the Millstone Restart Assessment Panel, which is comprised of regional and headquarters managers, senior residents, and project managers, will continue, for the foreseeable future, to meet periodically with the licensee, assess Unit 3 performance, and provide input to the inspection program.
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i QUESTION 2. What is the NRC's plan to ensure that Millstone 2 does not reopen until I
restart is safe? )
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ANSWER. .
4 Millstone Unit 2 continues to remain shutdown pending the licensee's completion of its corrective actions and NRC's verification and formal authorization to restart. The licensee has l implemented a Configuration Management Plan (CMP) for Unit 2 as its principal program to provide reasonable assurance that design-bases weaknesses have been effectively corrected. i l
CMP includes both efforts to understand the licensing- and design-bases issues and actions to prevent recurrence of those issues. Before NRC can reach a decision to approve restart for 1 i
Unit 2, the licensee must determine that the plant conforms with applicable NRC regulations, licensing conditions,' the Updated Final Safety Analysis Report (UFSAR), and that applicable licensing commitments have been met. NRC must then agree with that determination.
o As a result of the NRC issuing a confirmatory order on August 14,1996, the licensee was directed to contract with a third party to implement an independent Corrective Action Verification Program (ICAVP) to verify the adequacy of its efforts to establish adequate design i
bases and design controls. The ICAVP is intended to provide additional assurance, before unit i restart, that the licensee has identified and corrected existing problems in the design and configuration control processes. Because of the scope and depth of the corrective actions for Millstone, the daic for restart of the Millstone Unit 2 has not been established. NRC's program I
for assessing the corrective actions at Millstone will continue to focus on a thorough )
examination of the issues identified in the NRC staff's restart assessment plan.
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QUESTION 2. 2 in SECY-97-003, " Millstone Restart Review Process," dated January 3,1997, the staff provided i to the Commission the NRC staff's processes and approaches that will be used to oversee the corrective action programs at the Millstone Nuclear Power Station. The staff is applying the guidelines of NRC Manual Chapter (MC) 0350, " Staff Guidelines for Restart Approval," to the restart approval of Millstone Unit 2. The NRC restart actions plan for Unit 2 consists of several j major elements, including corrective action programs, work planning and control improvements, l procedure upgrade programs, quality assurance and management oversight improvements, i and completion of ICAVP. l I
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- s. p-QUESTION 3. The GAO report included a recommendation that inspection reports fully
.- document the status of the licensee's actions to address identified problems under NRC corrective action requirements.
i (a) What has the NRC done to respond to this recommendation?
l ANSWER.
The NRC acknowledged the GAO recommendation and on August 18,1997 provided the j 9
following response:
The NRC agrees with the recommendation to improve oversight of licensees' timely l t
- l. resolution of problems. The staff has long recognized the importance of the licensee's
- i corrective actions and has several processes that focus inspection effort and licensee's management attention on this area, as described below: .
l NRC inspectors currently review the adequacy and timeliness of corrective actions taken by the licensees in response to violations of NRC requirements and deviations from 1
l licensing commitments. They document these reviews in inspection reports, which are public documents. These violations and deviations result from nonconformances identified during NRC inspections of the facility or by the licensee's own problem identification process, l
, NRC inspectors routinely monitor, review, and verify the adequacy of licensee corrective 1 actions. Since licensees annually identify thousands of deficiencies, NRC resource
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OUESTION 3.(a). 2 l
l limitations demand that these inspections are performed on a selectiva basis, focusing on those issues that are most risk- and safety-significant.
In addition, the NRC reviews the licensee's corrective action program at each reactor ,
l facility on a periodic basis (Inspection Procedure 40500, " Effectiveness of Licensee Controls in Identifying, Resolving, and Preventing Problems") to verify that the licensee is implementing an adequate program.
NRC's enforcement policy specifies appropriate enforcement actions for nonconformances with planned and required corrective actions. Additionally, to encourage licensees to identify and resolve problems, the enforcement policy provides for mitigation of the sanction for timely identification and appropriate corrective actions by the licensee.
Problems identified at the Millstone and Salem plants related to the licensees failure to take prompt corrective action, as noted in the GAO report, indicate this area warrants greater attention from the NRC. The staff has begun a review of its internal processes to identify areas for improvement in assessing the timeliness, prioritization, engineering support, and quality of the corrective actions taken by licensees. Some areas included in the staff's review are the plant performance review, and the senior management meeting (SMM) processes. The agency is strengthening its processes for assessing the effectiveness of a licensee's corrective action program by focusing on what a licensee has done as opposed to what it plans to do. In that regard, the NRC intends to provide additional guidance on how inspectors should close out issues identified in NRC
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I QUESTION 3.(al. 3 i
l inspection reports. The staff is also developing a process to better identify and track j licensing commitments and to verify their implementation.
While the NRC intends to follow more ciosely the corrective actions for issues included in inspection reeMs, the NRC does not agree with the specific recommendation to track and document in the inspection reports the status of corrective actions for all licensee-identified issues. Criterion XVI of 10 CFR Part 50, Appendix B, requires licensees to promptly identify and correct faileres, malfunctions, deficiencies, deviations, defective material and equipment, and nonconformances. Given the number of issues
- identified, the efforts required by the NRC to document and track deficiencies regardless of safety significance, as recommended in the GAO report, would be large and without a l commensurate safety benefit.
Based on our response dated August 18,1997 to the GAO report, NRR prepared draft
- inspection procedure changes to provide additional guidance on how inspectors should close out issues (severity level IV violations, open and unresolved items) identified in NRC inspection reports. However, because of the recent changes being proposed to the enforcement program ;
which may require no additional NRC review of less risk significant severity level IV violations as l long as these issues are captured in the licensee's corrective action program, NRR has l
postponed implementing the draft procedures. Once the Office of Enforcement's review of how severity level IV violations should be processed by the Agency is completed, NRR will integrate the OE's recommendations into the NRR's guidance on how to close out open issues so that the OE's and NRR's processes are consistent.
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QUESTION 3. NRC's role in future nuclear energy development vis-a-vis DOE.
l (b) include detailed plans and schedules for the NRC review of the l
Calvert Cliffs licenso renewal and the transfer of ownership of TMI Unit 1.- '
ANSWER.
l The technical review plan for the Calvert Cliffs renewal application was forwarded to Baltimore Gas & Electric in a letter dated June 17,1998. The milestones in the Calvert Cliffs schedule are as follows:
IL Calvert Cliffs Renewal Milestone Date Receive Renewal Application 4/10/98
, Nohce ApgwatwwiTendered 4/25/98 Complete Acceptance & Docketing ' 5/10/98 Public Meeting & Environmental impact Statement (EIS) Scoping 7/9/98 i
Staff Complete Technical Requests for Additional Information (RAls) 9/7/98 l Staff Complete Envronmental RAls . . 10/7/98 Apphcant Complete Technical RAI Responses 11/21/98 Appheant Complete Response to Environmental RAls 12/6/98
-lasue Draft Envronmental Statement (DES) for Comment 3/6/99 Staff Complete Safety Evaluation Report (SER) and identify Open items 3/21/99 Public Meeting to Discuss DES . 4/5/99 Complete DES Comments 5/20/99 Applicant Complete Response to Open items 7/19/99 Staff lesue Supplemental SER & Final Environmental Statement (FE T) 11/16/99 ACRS Recommendations to Commission on Application 2/14/00 Commission Decision on Application before 10/00 L On July 8,1998, a Notice of Opportunity for Hearing was published in the Federal Reaister l
l related to the renewal application for Calvert Cliffs.' As of August 10,1998, one petition for i
p ' leave to intervene has been received in connection with the Calvert Cliffs renewal apphcation.
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Question 3.(b) (continued) 2 l
I The Commission may issue a case-specific order providing further guidance on procedures and 1 scheduling matters.
I The NRC also received a license renewal application on July 7,1998 from Duke Energy Corporation for their three-unit Oconee plant. The staff established similar milestones for the review of the second renewal application, which were forwarded to Duke in a letter dated July 31, .1998.
Both renewal reviews are proceeding as scheduled. NRC management and the NRC License Renewal Steering Committee will meet with BGE and Duke management on August 20,1998, to discuss the plans und progre,ss on the renewal reviews.
The NRC has not yet received a request from Amergen (a consortium formed by PECO l
Energy, Inc., and British Energy) to transfer ownership and operating authority of the Three Mile j i
Island, Unit 1, plant. Among other matters, the issue of foreign ownership, domination, or control will have to be addressed in light of the prohibition in the Atomic Energy Act of 1954, as j amended, against such interests. Given the unknowns, the NRC has established the following L
schedule, expressed in terms of weeks following receipt of an application, for review of the l l
license transfer request, including a provision for an adjudicatory process, associated with the
! purchase of Three Mile Island, Unit 1 (TMI-1) by Amergen, Inc.:
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so- s Question 3.(b)(continued) 3 !
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Milestone Weeks
- Complete f= , ^ s Review; publish Notice of Apphcation and 2 i Opporbmity for Heanng in Federa/ Repster, and identify case-specific schedule 1 actors ,
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- j Complete preparaton and submittal of Commission ; aper on analysis of 8 policy and legal issues name=ted with foreign ownership, domination, or control of TMI-1.
Complete revows of decommissioning funding assurance, financial : 12 qualificabons, technical qualifications, foreign ownership, and antitrust.
- (Note that the license for TMI-1 was issued under Section 104b of the L AEA. As such, the facility and its licensees are "grandfatherof from antitrust reviews.) lasue order (and associated license amendment) approving or dsapproving hcense transfer, if required, also issue Environmental Assessment and Fmding of No Significant Impact. (Note that the Commission has determined that any hearing that might be granted in connection with a transfer order need not be completed before the issuanos of auch order. Pursuant to 10 CFR 50.92, the conforming amendment to the license does not typicauy involve a significant hazard consideration and may take effect upon issuance. However, the order and any conforming amendment are subject to the outcome of any hearing that may be conducted in connection with the transfer application.)
l l . Complete heanng process, if required. 36**
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Cumulative weeks following receipt of an application for transfer of ownership l The estimated duration of any hearing that might be held is based upon the Commission's currently applicable Rules of Practice and the recently issued Statement L
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Question 3.(b)(continued) 4 of Policy on Conduct of Adjudicatory Proceedings, 63 F.R. 41,872 (August 5,1998), as .
well as the issuance of a case-specific order by the Commission providing further direction regarding the conduct and scheduling of the hearing. It should also be noted that a proposed rule, which would revise the Commission's rules of practice to provide streamlined licensing procedures specifically applicable to license transfer proceedings, was published in the Federal Reaister on September 11,1998. A 30-day public comment period is provided.
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QUESTION 3. ' NRC's role in future nuclear energy development vis-a-vis DOE. i (c) Docuss the factors that contributed to delays in regulatory action with Vogtle and LES, and the steps taken to prevent their ;
recurrence.
ANSWER.
The yggt[g proceeding involved an application for the transfer of control of the facility's operating license from Georgia Power Company to the Southem Nuclear Operating Company I
which was challenged on grounds related to the character and integrity of the current and L prospective licensee's management. Unlike other proceedings, concurrent with the ongoing licensing proceeding, the intervenor had filed a petition under the Commission's regulations
- requesting that an enforcement action be taken against the licensee based on the same facts asserted as grounds for denying the license transfer. These facts further related to a then-ongoing investigation being undertaken by the NRC's Office of Investigations, which entailed a
~ referral to the Department of Justice for consideration of criminal prosecution. Because of the related enforcement aspects, the staff declined to approve the transfer of operating authority and related amendments until completion of the proceeding. The delays in completion of the proceeding likewise stemmed largely from decisions to delay litigation pending resolution of the
! ongoing investigation. This action was also complicated by the need for the staff to decide l whether to take enforcement action'. In retrospect, it seems clear that at least some of the delay was notlegally compelled.
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e b OUESTION 3.(c). 2 Louisiana Enerav Services (LES) proceeding involved a first of-a-kind application for a private enrichment facirrty, involving a technology which had not previously been licensed by the Commission. During both the technical review and adjudicatory process, a number of novel legal and technical issues had to be addressed. With respect to the staff's technical review, it is now apparent that the application submitted by LES was not sufficient to enable the staff's review to be conducted on a timely basis, but that the staff did not aggressively address its shortcomings nor was the applicant fully responsive to staff requests for additional information.
In regard to the LES adjudicatory process, the record developed was complex and involved issues of first impression which, although brought to the Commission's attention, were not resolved in a timely manner. In addition, in an attempt to ensure that all issues were thoroughly addressed, the Licensing Board allowed a large amount of information into the record without insisting on adequate sponsorship by the parties to explain the significance of that information, which then had to be considered by the Board in reaching its decisions. These decisions themselves were excessively delayed, as the Licensing Board itself has acknowledged.
Notwithstanding that both the Vootle and LES proceedings involved unique considerations not believed likely to recur, the Commission has attempted to address sources of potential delay in future licensing actions in several ways. The staff now prepares a detailed review schedule for significant licensing actions such as license renewal, including the need to assure the adequacy of the license application itself and for bringing emerging technical issues to NRC management attention and, if necessary, to the Commission for guidance (both matte'rs which also contributed to the delay of the LES proceeding).
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l QUESTION 3Jc). 3 I in addition, the Commission has taken steps to streamline the adjudicatory process, while still L
l assuring that a clear and complete record is created. The Commission has commenced a study of the entire he6 ring process and expects to recsive recommendations, including recommendations on the need for legislation, by the end of this year. In the interim, on July 28, l 1998, the Commission issued a " Statement of Policy on Conduct of Adjudicatory Proceedings,"
which provides guidance to the licensing boards, presiding officers and parties to Commission proceedings on how the Commission expects its proceedings to be conducted. The policy i _
i statement encourages licensing boards and presiding officers to establish case-specific schedules which are to be followed, to shorten filing and response times where practical, to manage discovery to avoid unnecessary delays in that stage of the adjudicatory process, to make sure that the parties comply with the Commission's regulations goveming the submission of admissible contentions, and to issue decisions in a timely manner. It also stresses the l
obligations of all parties to adhere to the Commission's Rules of Practice and their respective ;
t l burdens as participants, for example, with respect to submitting contentions and for offering l
evidence, in addition, the Commission indicated that it willitself carefully and actively monitor ongoing licensing proceedings to ensure that they are conducted expeditiously and that the l boards, staff and other parties receive prompt guidance on emerging technical, policy and legal issues, as necessary. Consistent with its desire for expeditious processing of license L
I applications, the Commission, on August 19,1998, issued and order giving guidance and recommending a schedule to the Ucensing Board that will preside over the licensing renewal proceeding for the Calvert Cliffs Nuclear Power Plant. Moreover, it is now considering whether
. . to establish new, informal procedures for license transfer hearings that, if promulgated as a final rule, could, in general, substantially reduce the time for such hearings.
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.OUESTION 4. Early waming for plants that exhibit declining safety performance is very H
important. The GAO report concluded that the NRC needs to make clear - l 1 '
how it will respond - including a clear statement on what sanctions will be applied - when inspections identify problems. What steps has the NRC taken to address this concem.
ANSWER.
1 The NRC acknowledged the GAO recommendation and on August 18,1997 provided the j following response:
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l The NRC agrees that the licensee's responsivenern to identified problems is a critical I performance criterion. The current NRC inspectior< and enforcement programs have
~i well-established requirements that focus on this crierion. Recent changes to the SMM i l
process, including development of an SMM nuclee 00wer plant performance evaluation .
template, have clearly emphasized the importance of evaluating the licensee's I
responsiveness to identified problems. The staff has recently strengthened the i corrective action evaluation criteria found in the " Staff Guidalines for Restart Approval" ;
(Inspection Manual Chapter 0350), which is the guidance document used by the staff in I assessing plants that are in an extended shutdown as a result of performance issues. In i addition, the Commission directed the staff to further improve the SMM process by developing better indicators that can provide a more objective basis for judging whether a plant should be placed on or removed from the NRC Watch List. These improved I performance indicators and objective measures will enhance staff's ability to take appropriate regulatory actions including additional enforcement where past enforcement
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i l QUESTION 4. 2 ;
actions have not been effective. >
l The NRC's enforcement policy already identifies sanctions for licensees that fail to !
resolve problems within a definitive period. The NRC's enforcement policy provides for lr matching sanctions for a violation to the safety and regulatory significance of the violation and establishes a graduated system of sanctions that include ncncited
.i violations, notices of violations, civil penalties, and orders to tr,odify, suspend, or revoke i
a license. The NRC imposes more substantial penalties for more significant problems. In !
determining the significance of a problem and the appropriate enforcement sanction, the ;
i established process also takes into consideration (1) the licensee's previous opportunity :
to identify and resolve the problem and (2) the length of time the problem remained !
unresolved because of the licensee's failure to take corrective actions. i b
The enforcement history has been an important consideration in the SMM process.
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However, enforcement actions are taken on a timely basis and are not delayed until the :
next SMM. As a part of our effort to improve the SMM and the licensee performance assessment process, we will consider ways to make clear what NRC actions will be considered and applied when pioblems are not corrected in a timely manner. e i
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QUESTION 5. NRC's rule containing radiological criteria for license termination set an all pathways dose of 25 millirem / year for the unrestricted release of a decommissioned site. EPA encouraged the NRC to adopt a maximum level of residual contamination of 15 mrem / year with a separate 4 mrem / year ground water standard. EPA Administrator has threatened that EPA would apply the Comprehensive Environmental Response, Compensation, and Liability Act (through Superfund listing) if NRC and EPA do not reach agreement on applicable standards through a memorandum of agreement. Isn't this a classic example of dual regulation?
ANSWER.
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Yes, this is an example of dual regulation. Fundamental policy differences exist involving the acceptable dose level (25 mrem /y vs.15 mrem /y) and EPA's belief that a separate pathway standard for groundwater in addition to an all pathways standard is necessary.
l NRC published a final rule establishing radiological criteria for decommissioning in July 1997.
l' This rule established 25 millirem per year (mrem /yr) from all potential exposure pathways as the acceptable criterion for release of licensed sites for unrestricted use. The rule also requires
, that radiation doses be reduced below the rule's dose criterion through the As Low As i Reasortbly Achievable process. This rule is consistent with intemational and national scientific recommendations as well as EPA's 1994 draft Federal Radiation Protection Guidance for Federal Agencies. EPA stated that this is not protective of the public health and the i environment, and that 15 mrem /yr frem all pathways, with separate limits established for
l QUESTION 5. 2 groundwater, is necessary. The EPA limits on groundwater would be the Maximum Contaminant Levels (MCLs). EPA would apply MCLs in groundwater, not at tap as specified in 40 CFR 141, National Primary Drinking Water Regulations, which are nonnally applied to drinking water at the tap. NRC disagrees with the EPA position, as discussed below.
First, the approach suggested by EPA results in the imposition of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) risk range on radionuclides without the informed and open discussions that would be part of the rulemaking process to establish such radiation protections standards - a process which NRC completed in 1997. The Commission's final rule is based on considerations of risk, radiation protection principles, national and intemational standards, and costs compared to associated benefits of cleanup. Second, there is no reason from the standpoint of protection of the public health and safety to have a separate, lower dose criterion for one of the pathways (i.e., groundwater) as long as, when combined, the dose from all pathways does not exceed the all-pathways dose standard. EPA's approach also overlooks the fact that MCLs, which EPA espouses for groundwater cleanup, are not set at consistent risk levels and include some that could result in exposures that exceed NRC's 25 mrem /yr all-pathways dose criterion, as well as others set at i
small fractions of a mrem. In issuing the final rule, NRC concluded that the final rule not only
. protects the public health and safety, but also establishes a framework to address the limited number of difficult cases which would otherwise require consideration of case-by-case
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exemptions. NRC considers that this approach provides adequate protection of the public i health and safety and the environment, and constitutes cost effective regulation. NRC is also l concemed that EPA's threat to appiy CERCLA raises the question of finality for sites that have complied with the NRC or equivalent Agreement State cleanup standards and have had their l l
licenses terminated. NRC considers that it is important to provide for finality in NRC and I
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Agreement State license termination decisions in order to provide licensees and the public with a stable and predictable regulatory framework that is adequately protective of public health and safety and the environment.
l in summary, dual regulation by EPA under Superfund is not necessary and is not a good use of limited Govemment resources and the resources of American citizens to whom the regulations apply.
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QUESTION 6. Is the NRC's iadiological criteria for license termination consistent with intomational standards set by the Intemational Commission on Radiological Protection (ICRP) and the National Council on Radiation Protection and Measu,4 ment (NCRP)?
ANSWER.
Yes, the NRC's radiological criteria for license termination are consistent with standards set by ICRP and NCRP. App!icable ICRP and NCRP findings are contained in ICRP Publication 60 and in NCRP No.116, respectively. Based on review of health and societalissues, both documents (while acknowledging the difficulty of setting standards for an " acceptable" public i
dose limit) arrive at 100 mrem /yr from all sources of radiation as a level that can be said to be l
acceptable. NCRP 116 notes that this value includes a review of risks of mortality faced by the public. The ICRP and NCRP approaches further reduce their 100 mrem /yr limit by the principle ;
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' of " optimization," which includes considerations of constraints and cost-effectiveness.
I Specifically, NCRP 116 notes that no single source or set of sources should result in an indistJual being exposed to more than 25 mrem /yr. This fraction (of 100 mrem /yr) was
- presented as a simple attemative to having a site operator investigate all man-made exposures j that an individual at the site would be exposed to so as to demonstrate that the total dose does l
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not exceed 100 mrem /yr. The clear implication in this simple attemative is that, if individual sources are constrained to 25 mrem /yr, NCRP believes it likely, given the low potential for j
! multiple exposures, that the public dose limit will be met. Further reductions considering ALARA would still be considered by NCRP 116. It is also important to note that ICRP, in its recent Publication 77, identifies 30 mrem /yr as the appropriate individual dose limit for the j disposal of radioactive waste. ,
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j QUESTION 6. I l Using the nationally and intemationally adopted principles of setting " individual dose and risk i limits" and " optimization of protection" (noted above) and an additional margin of safety to allow for the potential for exposure to more than one radiation source, the NRC developed its final rule on radiological criteria for license termination.
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QUESTION 7. _(A) is legislative action necessary to resolve this [ dual regulation]
problem? ;
i ANSWER. .
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The Commission has tried to develop an understanding with EPA in the form of a Memorandum l i
of Understanding on decommissioning and decontamination of contaminated sites. However, l
l in over a year of effort to reach an agreement, there has not been progress made to date. It l l
has become apparent that EPA's commitment to its current regulatory approach differs significantly from NRC's support of fundamental radiation protection standards, as described in l
' national-and international standards, that are based on considerations of risk and costs compared to associated benefits of clean up.
l In other words, there are substantial differences between NRC and EPA on the basis for
! protection of public health and safety and the environment. Among other things, this raises the l' -
issue of finality of NRC or Agreement State decisions on license termination. NRC believee l
that itis important to provide for finality in such decisions thereby establishing a stable and l
l predictable regulatory framework that is adequately protective of public health and safety.
t Recognizing that dual regulation is wasteful of Govemment resources and the resources of the l
American people, the Commission has copcluded that the resolution of the differences between
- the EPA and the NRC with respect to cleanup of radioactive contamination is a matter of policy
- that can best be solved by Congressional action. The NRC Chairman sent a letter to Senator l-Chafee on July 16,1998, recommending that Congress address this issue. A copy of L Chairman Jackson's letter is enclosed.
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Enclosure:
Letter to Senator Chafee from Chairman Jackson !
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NUCLEAR REGULATORY COMMISSION Enclorura:
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- ASHINGTON. D.C. 20555-0001 QLIEStion 7.(A).
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July 16,'1998
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The Honorable John H. Chafee, Chairman Committee on Environment and Public Works ,
United States Senate Washingto'n, D.C. 20510
DearMr. Chairman:
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The purpose of this letter is to express the views of the Nuclear Regulatory Commission (NRC regarding the resolution of the differences between the Environmental Protection Agency (EPA) and the NRC with respect to cleanup of radioactive contamination. We had discussed this matter when I met with you on April 28,1998. And, as you are aware, the EPA fonnarded its views to you via a letter dated March 28,1998. For the reasons explained in this letter, the Commission believes that the resolution of these differences is a matter of policy that can best be solved by Congressional action.
- The NRC is committed to fundamental radiaF>n protection standards, as described in national and international staridards. This commitr ont is reflected in NRC's Rule on Radiological Criteria for License Termination, which was issued on July 21,1997. The' rule was arrived at through an enhanced participatory rulemaking process and was accompanied by a voluminous environmentalimpact statement and extensive regulatory analysis. It is based on considerations of risk, radiation protection principles, national and international standards, and costs compared to associated benefits of cleanup. It uses the principles of setting of an individual dose limit, risk limits, and optimization of protection, plus an additional margin to allow for the potential for exposure to more than one radiation source. NRC's rule includes an all- .
' pathways dose criterion of 25 mremlyr and, additionally, requires that doses be reduced below the rule's dose criterion through the ALARA process, which requires NRC licensees to achieve .
doses to members of the public that are as low as reasonably achievable. Demonstration of compliance with the all-pathways dose criterion requires evaluation of the groundwater pathway.
The approach of usirig an all-pathways dose criterion provides a dependable, risR-based standard and is consistent with the recommendations of the National Academy of Sciences, national and international scientific organizations, as well as EPA's 1994 draft Federal Radiation Protection Guidance for Federal Agencies.
Nevertheless, EPA questions basic aspects of NRC's Rule on Radiological Criteria for License Termination, maintains that NRC's radiological criteria for license termination are not protective of public health and the environment, and asserts that if EPA is not satisfied with cleanups _-
conducted to the NRC-established level, EPA may decide to list a previously NRC decommissioned licensee on the National Priorities List. Among other things, this raises the issue of finality of license termination, and possible EPA actions at sites that have complied with the NRC or equivalent Agreement State cleanup standards and had their licenses terminated.
'We believe that it is important to provide for finality in NRC and Agreement State license
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Enclosure:
,- $ Qu sti n 7.(A).
termination decisions in order to provide licensees and the public with a stable and predictable ;
. regulatory framework that is adequately protective of public health and safety and the environment. .
In addition., EPA faults the NRC for not establishing a separate, specific requirement for groundwater pathways. This ignores the fact that, under the standards established by the NRC, the dose to a member of the public fromg pathways of exposure (air, water, food, and direct radiation) would not be permitted to exceed 25 mrem /yr.for those cases in which the NRC would permit unrestricted release of the decontaminated site. It also overlooks the fact that maximum
. contaminant levels (MCl.s) established under the Safe Drinking Water Act (SDWA), which EPA
. espouses for groundwater cleanup, are not set at consistent risk levels (and include some that are above the NRC's dose criterion). Further, the costs of m excessive compared to the benefits obtained (in someof cases,eeting
, billions certain dollars per individual MCLs ma health effect averted).
Another aspect of NRC's concem with the application of MCLs is EPA's position that it lacks flexibility with respect to setting drinking water standards and MCLs of radionuclides under the Safe Drinking Water Act and, as such, the application of MCLs for radionuclides under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA).
It is also EPA's view that application of drinking water standards in other contexts, such as cleanup standards for radioactive contamination or standards of control for monitoring radioactive waste disposal facilities, has no bearing on the proper setting of the drinking water standard, and that the legislative direction in the SDWA prohibits increasing any groundwater standards, such as MCLs, regardless of what changes in science may indicate. In contrast, NRC is not subject to any statutory prohibition on using the latest methodology or advances in science for limiting radiation doses to individuals or principles established in international agreements in setting standards to maximize protection of the public's health and safety. This difference in legislative mandates further exacerbates the differences between the NRC and EPA on radioactive disposal and cleanup.
We recognize that dual regulation is wasteful of both Govemment resources and the resources of American citizens to whom the regulations apply. Therefore, we have attempted to reach an understanding with EPA in the form of a Memorandum of Understanding (MOU) on decommissioning and decontamination of contaminated sites. I sent EPA Administrator Browner a draft MOU on the subject on August 6,1997. In response, on February 19,1998, EPA sent us a revised MOU for consideration. After NRC staff reviewed the EPA-revised MOU, the Commission came to the conclusion that fundamental differences exist between our two agencies, on the basis for protection of public health and safety and the environment. These fundamental differences have the potential for severely impacting a number of areas that fall under NRC jurisdiction such as high-level waste, transportation, and use of radioactive material in medicine.-
1 In s" ., the Commission believes that Congressional action can best resolve the differences - .
between EPA and the NRC. Further, we continue to believe, consistent with the standards of l
the international community, that the approach used in NRC's cleanup rule provides all the i
, regulation necessary for adequate protection of public health and safety and the environment.
We are aware, of course, that EPA opposes that view, and has expressed a preference for l
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Enclorura: I Question 7.(A).
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l continuing interagency deliberations. However, we,believe that the EPA's commitment to its current regulatory approach differs so significantly from NRC's support of fundamental radiation !
protection standards as described in national and intemational standards that a Congressional )
resolution of the differences is des,irable.
. Sincerely, I JL,A--w
) 1 Shirley Ann Jackson . ,
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cc: Senator Max Baucus l
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~ QUESTION 7. (B) If so, what action should Congress take to address this problem?
i ANSWER.
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The Commission urges that any legislation reauthorizing CERCLA contain language comparable to that found in section 810 of H.R. 3000. The NRC believes, consistent with the '
standards of the international community, that the approach used in NRC's Rule on l Radiological Criteria for License Termination, issued on July 21,1997, provides all the s regulation necessary for adequate protection of public health and safety and the environment, J
l and we strongly urge support of that approach in legislation for the reauthorization of CERCLA. l l The rule was arrived at through an enhanced padicipatory rulemaking process and was accompanied by a voluminous environmental impact statement and extensive regulatory I
- analysis. It is based on considerations of risk, radiation protection principles, national and intemational standards, and costs compared to associated benefits of cleanup. It uses the f l principles of setting of an individual dose limit, risk limits, and optimization of protection, plus an ,
additional margin to allow for the potential for exposure to more than one radiation source. *
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QUESTION 8. You discussed your NRC Strategic Assessment and Rebaselining effort which is over three years old. What are the most serious self criticisms l that came out of that self evaluation, and what have you done about
. them? (page 1) .
9-ANSWER.
The most significant self-criticisms concerned (1) the slow progress of moving toward a more risk-informed and performance-based re0ulatory framework, (2) the excessive duration and effort needed to complete some licensing actions, (3) the efficiency and effectiveness of the -
Inspection, performance assessment and enforcement processes and (4) the less than optimal l organizational relationships and responsibilities to support r'egulatory initiatives.
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l To address these issues the Agency has, for example, (1) developed guidance documents for risk-informed applications, implemented a senior management oversight committee, and !
monitored higher priority risk-informed licensing submittals; (2) sought to better define the organizational responsibilities of the Office of Nuclear Reactor Regulation to focus on the timely . ,
completion of licensing submittals; (3) worked with industry to identify improvements in our l inspection, assessment, and enforcement processes that focus on safety and risk significance;
, j j and (4) shifted the responsibility for rulemaking activities from the Office of Regulatory l Research to the cognizant Program office to provide a more effective and efficient rulemaking process.
L I The Strategic Assessment and Rebaselining effort was the initial step in implementing a new planning, budgeting, and performance management process. One of the principal purposes of l
QUESTION 8. 2 NRC Strategic Assessment and Rebaselining effort was to identify activities that the NRC engages in, group these activities appropriately, identify potential strategic or direction setting issues associated with these groups of activities, and provide an opportunity for the Commission to define a long term direction for the Agency. Commission decisions, for example, associated with the Strategic Assessment and Rebaselining effort dealt with areas such as oversight of the Department of Energy; risk-informed and performance-based regulation; high-level waste; the role of industry and public communications. The process provided the Commission with options for reaffirming or changing the direction of the agency.
The Strategic Assessment and Rebaselining effort supported the subsequent development of the agency's Strategic Plan, the agency's Performance Plan, and each office's Operating Plan by helping to prioritize activities and identifying areas were process or activities should be eliminated or enhanced. Resources and planned accomplishments were identified to implement the Strategic Plan and as the agency moves forward performance assessment and monitoring will provide feedback to further refine our strategic direction.
Over the last two years, critical self-assessments have resulted from implementation of the Commission decisions associated with the Strategic Assessment and Rebaselining effort, from resolution of over 200 process- and implementation-related issues identified during development of the directions setting issues, and from the oversight afforded by the enhanced budgeting and planning process.
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I QUESTION 9. (A) What are your " clear safety standards"? (page 2) How are they defined? How do they relate to the regulations? How are they implemented?
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- (B) How do you ensure the inspectors and reviewers don't go beyond the
! legitimate bounds in assessing " safety standards"? What direction do I
you give to your managers when they determine reviewers have gone l beyond the bounds of the " safety standards"?
ANSWER.
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- (A) The referenced quotation from page 2 of the statement submitted by the USNRC to this I
l Senate Subcommittee notes that NRC has been criticized for a " lack of rigor in demanding strict l adherence to clear safety standards." This criticism, in part, is that NRC lag.kg clear safety L
standards. The Atomic Energy Act of 1954, as amended, establishes " adequate protection" as the standard of safety on which NRC regulation is based. The Commission's regulations establish the basis for meeting that standard. In addit!on, reguiations require the license (including the Technical Specifications) and Updated Final Safety Analysis Report to provide i.
further plant-specific detail as to the standards that a plant must meet to operate safely.
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Some of the Commission's regulations are prescriptive, describing precisely what is required for L compliance. However, most of the regulations are based on a recognition that there are multiple means of achieving equivalent degrees of safety. Therefore, the Commission has j established guidance documents such as NUREGs, Regulatory Guides, the Standard Review l t
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Plan, and Branch Technical Positions to state methods of achieving compliance that are
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1 l QUESTION 9. 2 i
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l acceptable to the Commission. Licensees may propose altemative methods of compliance that l provide equivalent degree of safety. Therefore, safety standards are defined by NRC i regulation and associated guidance documents. -
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I (B) Assurance that a licensed facility meets the regulations is gained through the licensing and inspection processes. To provide for consistency, evaluations of current plant design and p .
operation conducted by inspectors and evaluations of proposed licenses and amendments .
l conducted by technical reviewers are required to follow a set of guidance documents. The l
Standard Review Plan (NUREG 0800) supplements the various regulatory guidance documents to provide a framework for licensing technical review. A detailed inspection program manual l and implementing procedures, the Enforcement Manual, and enforcement guidance l
memoranda provide guidance for inspectors in evaluating a licensee's implementation of the approved design and ongoing operation of the facility. Additional process guidance is provided ,
l l In NRR and Region Office Letters and policy memoranda. This guidance is generally available i .
i l in the public domain. j When an NRC manager determines that an inspector or reviewer has made conclusions that are inconsistent with established guidelines, the manager is expected to resolve the issue and ensure that the assessments and conclusions are consistent with established guidance l
. documents, provide an appropriate characterization of safety aspects of the review, contain no additional policy issues, and communicates the appropriate message to licensees. In the case of inspection reports, inspectors and the licensee meet, prior to publication of the report, to discuss inspection findings and provide an opportunity for the licensee to discuss concerns with
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L QUESTION 9. 3 ,
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the agency's assessment. Inspection reports are reviewed by the appropriate level of' l management prior to being issued to licensee. !
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f in addition to management oversight of the licensing review and inspection programs, both ,
i t intamal NRC policy and the regulations themselves provide opportunities for interested stakeholders to contest the staff's actions. For the industry, perceived NRC staff excesses may l ,
L be challenged through four prrx: esses that monitor concems raised by licensees. (1) Licensees can report concems to NRC management during pcbdic site visits required by inspection l
l Manual Chapter (IMC) 0102, " Oversight and Objectivity of Inspectors and Examiners at Reactor l
i Facilities." IMC 0102 requires NRC management to make periodic site visits to solicit feedback ,
{ from their licensee counterparts regarding implementation of the NRC regulatory programs at i i
their facility. Concems raised by licensees during IMC 0102 visits are evaluated annually with the results reported to the Commission. (2) Each region has a formal process to evaluate and resolve licensees' complaints of inappropriate regulatory action by NRC employees. Each procedure requires a determination if the issue should be pursued by the Office of the Inspector General (OlG) or the region. For issues reviewed by the region, the regional administrator approves a course of action including any specific remedial actions. (3) If the issue is referred ;
i' to the OlG, the matter is handled in accordance with Management Directive 7.4, " Reporting Suspected Wrongdoing and Processing OlG Referrals." (4) A formal process was established in July 1995 for senior power reactor licensee officials to report perceived inappropriate regulatory action directly to the Office of the EDO. Independent of these processes, licensees !
l can informally discuss any concem directly with their counterpart in the regional office or in
[ NRR at any time. In addition, if the staff's action is perceived as being too lenient, any person
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QUESTION 9. 4 l
l may file a request pursuant to 10 CFR 2.206 to institute a proceeding to modify, suspend, or revoke a license, or for other such action as may be proper.
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L QUESTION 10. What are your objective performance standards? What are your-metrics? (page 3) l- i l
ANSWER.
l' j As discussed in response to Question 9, historically, safety performance has been assessed by NRC Judgement of how well a licensee adheres to the safety standards defined by NRC l regulation and implemented through licensing processes. The NRC's regulations promulgate requirements ranging from the highly prescriptive, to requirements that are more broadly stated which require supplemental regulatory guidance (e.g. NRC Regulatory Guides and Standard Review Plans) reflecting one or more acceptable implementation attematives. These Guides are not designed to cover every option, but are instead a yardstick against which to measure alternatives.
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Currently, NRC uses processes such as Senior Management Meetings (SMMs), and Plant Puformance Reviews (PPRs) to perform a qualitative integrated assessment of licensee l I
l performance. Additionally, NRC uses quantitative performance data (such as forced outage 1
' rate; number of safety system failures; equipment forced outages; automatic scrams while i
critical; collective radiation exposure; and number and severity level of recent enforcement - l actions) at the SMMs to support findings of performance changes.
NRC has initiated efforts to develop and rely on more objective nuclear plant performance indicators for reactor inspection and assessment processes. Several public meetings have l
[ recently been held with industry representatives and a major public workshop is scheduled for late September 1998 to discuss industry and NRC perspectives on attaining a more objective
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l QUESTION 10, 2 l
Performance assessment process which would integrate information sources, including a set of selected performance indicators. This effort is intended to develop a process that will allow transition to a more quantitative set of performance indicators and has near-term deliverable dates in early 1999.
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\ l i i OUESTION 11. (A) You mention " improved efficiency". (page 5) How does NRC measure internal work processes efficiency?
l (B) What expectations have been provided to the staff relative to '
l expected review times?
l (C) How successful have you been in improving process times? l t ,
Have you started measuring process times?
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ANSWER. -
The NRC developed a Strategic Plan and a Performance Plan for the Agency and Operating Plans for the individual Agency Offices and Regions. The Office and Regional Operating Plans contain performance plan output measures which in tum contain activity-specific milestones and metrics. The metrics contain standards for quantity, quality, timeliness, and efficiency.
Labor rates obtained from the Office tracking systems are typically used to measure the efficiency of the work process. The staff participates in the development of the Operating Plans i
and the goals set forth in the Operating Plans are being incorporated into staff performance appraisals. Work processes are monitored by management, and as activities are carried out, schedules are adjusted accordingly. Operating Plan standards are being reviewed and improved as needed on a quarterly basis.
Using these standards, the NRC measures review process efficiency several ways including l
l product volume (licensing actions completed), backlog inventory and backlog age l
demographics.
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OUESTION 11. 2 Expectations regarding expected review time are related directly to the priority assigned to the review. The priority of a review task is determined primarily on the basis of safety significance, risk considerations, and operational impact. However;in some situations, priority is dictated by Commission or EDO directive resulting from policy considerations, or by statutory requirements such as deadlines imposed by rule or regulation. For example, policy considerations have a significant bearing on the priority assigned to review tasks for license renewal. Four levels of review priority are broadly defined in staff guidance. Higher priority work is to be accomplished first; however technical complexity may dictate that the review takes longer than other tasks of low priority and low complexity. Other factors may affect review times are quality of the submittalin support of the proposed action and timeliness of the applicant's response to requests for additioni information.
Until recently, the expectations were that 80% of licensing action review tasks would be completed within one year,95% would be completed within two years and all tasks would be completed within three years. As a result o' a recent Commission directive, the expectations have been raised and resources have been applied to achieve the higher expectations.
In general, the new expectations are that 95% of licensing action review tasks will be completed within one year and all tasks will be completed within two years.
The number of licensing actions completed, the current inventory, and the actual number and I
percentage of licensing actions exceeding two years are reported to management on a monthly l
basis. Recently, the volume of licensing actions completed has improved, although the percentage of licensing actions exceeding the age goals has increased somewhat. Thus, we recognize improvements are needed. Management attention is being focused on this area.
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QUESTION 11. 3 I
The Commission recently challenged the staff to reduce the licensing inventory to a historic low of 700 licensing actions by the end of FY 2000. The NRC's FY 2000 budget proposal will include the resources needed to achieve this goal. .
The Regional Offices measure their performance in a similar way by monitoring inspections completed (and associated number of inspection hours completed at each site), timeliness, and quality of inspection and associated assessment reports, and enforcement actions. These indicators have shown continued improvement over the past several months.
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l l i i OUESTION 12. You say you are working to make inspection, enforcement and assessment processes Setter. (page 6) How are you monitoring abuses of inese activities?
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ANSWER.
TI'e NRC interacts regularly with industry groups (NEl and INPO) to gain the group's perspective on various regulatory issues. Additionally, the NRC has four processes that monitor concems raised by licensees. Independent of these processes, licensees can informally discuss any concem directly with their counterpart in the regional office or in NRR at any time. -(1) Licensees can report concems to NRC management during periodic site visits required by Inspection Manual Chapter (IMC) 0102, " Oversight and Objectivity of Inspectors and Examiners at Reactor Facilities." IMC 0102 requires NRC management to make periodic site visits to solicit feedback from their licensee counterparts regarding implementation of the NRC regulatory programs at their facility. Concems raised by licensees during IMC 0102 visits are evaluated annually with the results reported to the Commission. (2) Each region has a formal process to evaluate and resolve licensees' complaints of inappropriate regulatory action by NRC employees. Each procedure requires a determination if the issue should be pursued by the Office of the inspector General (OlG) or the region. For issues reviewed by the region, the regional administrator approves a course of action including any specific remedial actions.
(3) If the issue is referred to the OlG, the matter is handled in accordance with Management Directive 7.4," Reporting Suspected Wrongdoing and Processing OlG Referrals." (4) A formal process was established in July 1995 for senior power reactor licensee officials to report perceived inappropriate regulatory action directly to the Office of the EDO.
Inhofe/NRR 08/31/98
4 e p QUESTION 13. You talk about " plants experiencing performance problems." (page 6)
How do you judge performance? What metrics do you use? How do l they. relate to safety?
ANSWER.
Historically the NRC has judged plant performance through the integration of a combination of l
l performance indicators such as the frequency and severity of plant events, and the results of l L i NRC inspections including enforcement history. Such information available to the NRC is brought together for review of each plant on a six month cycle (Plant Performance Review) to y
adjust regional inspection resources and to detect adverse trends potentially stemming from i
programmatic weaknesses. Additionally, senior agency managers meet annually (recently changed to an annual Senior Management Meeting [SMM]), previously was semiannual to review plants whose poor performance may warrant increased NRC senior management attention and overall agency resource expenditures. Quantitative data are used at these senior management meetings ta support findings c,f performance changes. This evaluation process integrates quantitative and qualitative perfom unr.e measures such as Plant Performance i review findings, r.afety inspection findings, enforcement history, safety equipment performance ;
- history, Licensee Event Repons, number of allegations received, and trend plots of some of these indicators. However, performance assessment processes in general have not relied solely on these data to determine outcomes, but have utilized a diversity of NRC participants to I help achieve consistency across plants, regions, and time. The level of safety performance by any specific plant is determined through the assessment processes noted above. Changes to 4
these processes within the last year have included an effort to make the bases for their outcomes more clear, such as publishing the Plant Issues Matrix (basis for PPR outcome) and l
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l QUESTION 13. 2 minutes of the SMMs. Additionally, the Commission recently authorized suspension of the Systematic Assessment of Licensee Performance in order to allow additional resources to be devoted to development of a new assessment process. The NRC initiative includes input from industry and public participation, to determine if safety performance can be more directly tied to measurable indicators, where such indicators can be shown to be closely aligned with plant risk.
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OUESTION 14. -(A) You state that you have " adopted measures that intemally challenge the need for each generic communication." How have you done that?
! ANSWER. !
I The intemal challenge on the need for a generic communication is done in a series of reviews with an increasing level of management involvement bar>ed on its overall significance. As a l
first step, a multi-disciplinary staff level review of a potential problem is performed by the Events L Assessment Panel with representatives from the offices of Nuclear Reactor Regulation (NRR), ;
Analysis and Evaluation of Operational data (AEOD), and Office of Regulatory Research (RES).
This panel reviews the need for each generic communication and suggests the appropriate type L
j of communication. i Generic letters and bulletins require senior management approval. In an August 7,1998 l :
l memorandum, the director of NRR provided guidance to the staff regarding the need to brief senior management before preparing a generic letter or bulletin. The briefing must show the
! safety benefit achieved compared to the burden imposed on licensees and staff is justified l !
before the generic communication is allowed to proceed through a defined review process.
Next, the Committee to Review Generic Requirements (CRGR) conducts a structured review of l-all proposed generic letters and bulletins in accordance with an established process intended to i
assure there is "value-added" from the particular communication. At this stage, the office of l General Counsel reviews the document and if requested it is forwarded to the Advisory Committee on Reactor Safeguards (ACRS).
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l l QUESTION 14.(A). 2 l
Public comments on the draft generic letter or bulletin are sought through Federal Reaister Notice. The Commission also reviews significant final communications before issuance. (See the response to question No: 61 for the various types.of NRC communications).
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QUESTION 14. (B) How have you applied the backfit rule to these communications? !
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ANSWER. ,
I Generic letters and bulletins only request actions and not impose requirements. Licensees have the option to propose altemate actions or take no action with appropriate justification. The ,
backfit rule (10 CFR 50.109) does not strictly apply until the point at which a backfit is required -
by rule or order. However, new generic positions in documents such as bulletins, generic
- letters and regulatory guides are intemally reviewed as potential backfits to ensure that they l J
meet the standards of the backfit rule before they are issued.
in the course of preparing bulletins and generic letters, as described in the answer to question >
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. In 14a, NRC staff must prepare a package for CRGR review that provides, in part, the i
regulatory basis for a proposed statf position, and the rationale for it being an adequate protection or compliance backfit pursuant to 10 CFR 50.109(a)(4), rather than a backfit j i
pursuant to 10 CFR 50.109(a)(2). Furthermore, the bulletin or generic letter itself must contain l a backfit discussion which provides the rationale for the NRC staff finding. The CRGR reviews
! all draft bulletins and generic letters to ensure that the regulatory basis for the proposed staff j position is appropriate, and in conformance with the standards of the backfit rule. If the CRGR finds that a proposed staff position involves a backfit pursuant to 10 CFR 50.109(a)(2), the CRGR will recommend to the Executive Director for Operations disapproval of the proposed staff position. Further effort on the bulletin or generic letter will cease, pending referral of the matter to the Office of Nuclear Regulatory Research to conduct a backfit analysis pursuant to :
10 CFR 50.109(c), in'accordance with the directives and guidance of NUREG/BR-0058 and
l l OUESTION 15. How will you avoid your staff pressuring licensees "into actions in excess i
. of regulatory requirements"? (page 9) What sanctions will you put in l
l place? What recourse method will you provide utilities to challenge staff pressure? Will you set up a " licensee concerns" program?
l ANSWER.
The NRC implements numerous actions to train its staff as to expected professional l
performance, including the area of inappropriate staff pressure. Standards for staff l
l professionalism and behavior are addressed in the "NRC IL .iciples of Good Regulations" and L
in the NRC technical staff performance expectations issued to each employee. These 1
requirements are reinforced by senior NRC managers in the course " Fundamentals of-Inspection" and related refresher courses and in resident counterpart meetings, workshops, and i
training courses. Additionally, the NRC actively solicits feedback from licensees to promptly identify and resolve any improper staff actions. In July 1995 the Commission issued a policy i statement to establish clearly its expectation for the NRC staff and licensees to have open and I l
professional communication at all organizational levels. In the policy, the Commission also encouraged licansees to raise issues regarding inappropriate regulatory action by a member of l
the NRC staff.
Licensees can informally discuss any concem directly with their counterpart in the regional l_ office or in NRR at any time. As noted in response to questions No. 9 and No.12, licensees have several processes available to them to raise concems and seek recourse, including concerns regarding staff pressure. Licensees can report concems to NRC management during i
periodic site visits. Inspection Manual Chapter (IMC) 0102, " Oversight and Objectivity of
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QUESTION 15. 2 !
Inspectors and Examiners at Reactor Facilities" requires NRC management to make periodic l
site visits to solicit feedback from their licensee counterparts regarding implementation of the l NRC regulatory programs at their facility. Concems raised by licensees during IMC 0102 visits j are promptly addressed and subsequently evaluated annually with the results reported to the l Commission. Additionally, each region has a formal process to evaluate and resolve licensees' l.
complaints of inappropriate regulatory action by NRC employees. The procedures require a l
l- determination of whether the issue should be pursued by the Office of the Inspector General' l L l (OlG) or the region. For issues reviewed by the region, the regional administrator approves a l
course of action including any specific remedial actions. If the issue is referred to the OlG, the !
i l matter is handled in accordance with Management Directive 7.4, " Reporting Suspected j Wrongdoing and Processing OlG Referrals." Finally, in July 1995, a formal process was
! established for senior power reactor licensee officials to report perceived inappropriate j l regulatory action directly to the Office of the EDO. Regarding sanctions, if an issue is substantiated, agency management develops a plan, including a schedule for implementation, l
to execute remedial actions; communicates the findings and concerns to the employee; and
' initiates a corrective action plan, which depending upon the severity of the issue, could include L
personnel action.
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QUESTION 16. ' You state that the NRC is adopting a risk-informed, performance-based approach to rulemaking (page 5) and you cite two examples:
(1) Appendix J, Option B and (2) the Maintenance Rule. What other regulations have been modified or do these " examples" represent all that has been accomplished so far?
ANSWER.
The Commission has worked, and is continuing to work, to achieve an appropriate balance ;
between deterministic and risk-informed regulations and between prescriptive and performance-based regulations. The two rulemakings were cited as examples of performance-based regulatory initiatives. In fact, in several rulemakings that have been conducted over the past few years, the Commission has considered and taken a risk-informed and/or performance-based approach when making rule changes. In the reactor area, requirements associated with anticipated transients without scram events (10 CFR 50.62), loss of attemating current electric power (10 CFR 50.63), technical specifications (10 CFR 50/36) and changes to the required frequency of FSAR updates (10 CFR 50.71), appropriately incorporated risk-informed, performance-based concepts.
NRC's existing HLW and LLW disposal regulations,10 CFR 60 and 10 CFR 61 respectively, are both risk informed and performance based. Recent revisions to 10 CFR Parts 34,
" Licenses for Industnal Radiography and Radiation Safety Requirements for Industrial Radiographic Operations," and 36, " Licenses and Radiation Safety Requirements for Irradiators," were developed using risk information. The revision to Part 34 incorporates a 5-number of changes that provide greater flexibility to radiographers in a number of perfomiance
OUESTION 16. 2 review areas. In addition the Commission, in revising 10 CFR Part 35," Medical Use of Byproduct Material," is restructuring it into a risk-informed, more performance-based regulation. i Modifications to Part 39, " Licenses and Radiation Safety Requirements for Well Logging," using risk information are currently ongoing to address newer technology. There have been several revisions to 10 CFR Part 20, " Standards for Protection.against Radiation," which are risk informed and performance based. These include revision to the doses received from individuals administered radioactive material and released in accordance with 35.75, revision of the monitoring criteria for declared pregnant workers and minors, and radiological criteria for release of sites for restricted or unrestricted use.
The staff is developing new regulations specific to Yucca Mountain for disposal of high level waste in a geologic repository using a risk-informed, performance-based approach. The staff is revising 10 CFR Part 70, " Domestic Licensi'n g of Special Nuclear Material" to make it move i risk-informed and less prescriptive based on risk insights gained from regulating these types of facilities for several decades.
The staff is revising 10 CFR Part 72, "Ucensing Requirements for the independent Storage of i
Spent Nuclear Fuel and High- Level Radioactive Waste," to use a risk-informed approach regarding the seismic criteria for siting independent spent fuel storage installations. The staff is also revising 10 CFR 50.59 and 72.48 conceming the processes controlling licensee changes, tests, and experiments to take a more risk informed approach.
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The NRC worked with the Department of Transportation to provide procedures under new regulations that enable the shipment of decommissioned reactor steam generators to a 4
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l OUESTION 16. 3 !
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disposal facility, without undergoing a specific steam generator transportation certification i
process. Moreover, the staff is taking into account risk information in its assessment regarding the technical adequacy of shipping the Trojan reactor vessel intact with its internals.
l As other regulations are revised or developed, the staff has been directed to consider whether a risk-informed and/or performance-based approach can be adopted.
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QUESTION 17.- With respect to enforcement, you state (page 7) that the it.. rease in non-escalated violations stems from a concerted effort to improve consistency across the agency. Striving for consistency in a process that is Inconsistent with industry performance does not appear to be a good use of NRC resources. What other remedies are you contemplating to fix this problem?
ANSWER.
1 The NRC has taken several short-term actions to address the non-escalated enforcement process and ensure that enforcement related activities are based upon safety significance. The
_ proposed changes are also expected to reduce the licensee burden in this area. The efforts underway (some of which merely involve exercising self-discipline in carrying out existing NRC policy) include: (1) ensuring that the NRC staff gives credit for licensee actions both in identifying and correcting violations in deciding whether to cite a low-level violation; (2) not requiring a written response when low-level violations are issued and corrective actions are addressed sufficiently in writing elsewhere on the docket (e.g., in t. Licensee Event Report); (3) providing more consistent treatment when multiple violations are identified with a common root cause; and (4) clarifying NRC staff guidance for the treatment of violations identified as the result of licensee corrective actions. In short, the intent is to simplify the disposition of these types of violations. The fJRC's Office of Enforcement issued enforcement guidance
. memorandum (EGM 98-006) on these issues on July 27,1998, and subsequently provided training to key staff.
QUESTION 17. 2 l In addition, as part of ongoing efforts, such as the NRC enforcement policy revision and request l ' for public comment issued in May 1998, the NRC will seek to identify other measures to improve consistency and to ensure a safety focus in documenting and dispositioning violations.
l The NRC held a public meeting with stakeholders on September 3,1998, to solicit input on possible enforcement policy revisions. A revision of non-escalated enforcement policy is expected to be presented to the Commission in October for their approval. The NRC staff is expected to develop additional guidance on regulatory significance by late Fall of this year and l thresholds for low-level and minor violations at the end of this year. The NRC staff plans on l
l developing risk-informed examples for inclusion in the supplements of the enforcement policy in the Spring of 1999. The NRC staff also expects a proposal from NEl for changes in escalated j enforcement policy and will review that propos'al and report to the Commission in the Spring of i
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i QUESTION 19. On page 7, you should state that the agency intends to improve guidance on factoring risk into enforcement decisions. Is it true that the current enforcement policy only allows risk insights to increase civil penalties, but can't be used to decrease the severity level of a violation? If so, how can this "one-way" approach be truly risk-informed?
I y ANSWER.
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L lt is not true that the enforcement policy does not allow risk insights to decrease the severity level of a violation. The enforcement policy states that the first step of the enforcement process
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regulatory significance (e.g., repetition, willfulness, pervasiveness). The enforcement policy l I
! was revised on December 10,1996, to clarify that technical significance includes both actual ;
l l and potential consequences and that risk is an appropnate consideration in evaluating the technical significance of a violation. The Statements of Consideration stated: l In analyzing risk, the NRC recognizes the uncertainties associated with risk L
assessment. Generally, qualitative rather than quantitative risk assessments are l l
made given the number of variables associated with risk assessment. Risk should be a consideration in proposing enforcement actions, but not necessarily determinatative. In developing higher civil penalties, the Commission intends to consider, where appropriate, assessing separate civil penalties for each violation i
that is aggregated into a Severity Level 11 problem. ;
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QUESTION 19. 2 l The staff issued additional guidance on risk considerations in enforcement actions in an enforcement guidance memorandum ( EGM 97-011), dated June 6,1997. The guidance states i l that risk is a relevant consideration in enforcement decisions conceming severity levels, appropriateness of sanctions, and the exercising of enforcement discretion. It also stated that the staff should continue to balance risk information against the guidance currently provided in !
the enforcement policy and the enforcement policy supplements. Judgment must be exercised in the use of risk significance as a factor in decisions regarding the appropriateness of the !
L sanction. While there may be cases where, due to increased risk significance, it is appropriate ;
i to escalate both the severity level and the sanction in order to convey the correct regulatory message to the licensee and the use of enforcement discretion may be warranted to reach the proper enforcement action, it may also be appropriate to reduce levels of enforcement due to l
low risk significance. This guidance document did not address this aspect of using risk l information and the staff is currently revising its enforcement manual to make this clear, i While a higher severity level and sanction may be warranted for violations that have greater risk
. significance, it may be appropriate to consider a lower severity level or enforcement action for issues that have low risk significance. As stated before, risk is only one component in the consideration of the appropriate severity level. Severity level considers actual consequence, a
potential consequence (risk), and regulatory significance. Therefore, a violation with little or no actual safety consequence and lower risli significance may still pose a significant regulatory I concem and warrant a higher severity level and/or sanction. In deciding whether a violation i should be categorized at Severity Level lil or IV, risk significance is considered. In some cases, ;
the matter may be so minor, it need not be cited. Low risk does not excuse noncompliance. If a licensee believes an issue is of low risk and not worthy of being a requirement, the licensee
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QUESTION 12 3 may seek a change to the requirement. However, compliance is required until the requirement is changed.
Finally, it is important to recognize that risk insights have an opportunity to influence agency action from the point of identification in the inspection process through the point of disposition in I
the enforcement process. As more risk-informed and performance-based approaches are applied to the agency's regulatory process and inspection activities, these approaches will be inherently factored into the enforcement process.
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QUESTION 20. We understand that the enforcement policy was removed from the t
regulations and is now a Commission Policy Statement. Given that it is
, no longer burdened with the constraints of your rulemaking process, why L
will it take you six months to revise your own policy that is within your control to change?
l ANSWER.
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First, as a point of clarification, from October 7,1980, when the NRC enforcement policy was first published and codified in the Code of Federal Regulations (CFR) at 10 CFR Part 2, ;
Appendix C, up until June 30,1995, when it was removed, the Commission maintained that the enforcement policy was a policy statement and not a regulation. The enforcement policy was 1
included in the Code of Federal Regulations to provide widespread dissemination. The I l
enforcement policy was removed from the regulations in 1995 (60 FR 34380) after concems were raised that it could inadvertently'be considered as a regulation instead of a policy ,
i statement. The enforcement policy was subsequently published as NUREG-1600 to ensure continuing widespread dissemination.
It is true that as a policy statement, the Commission has more flexibility in revising its i enforcement procedures than if it were a regulation. However, the Commission recognizes the
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importance of this policy statement and judiciously revises it after appropriate analysis and consideration. More than ever, the Commission recognizes the need to solicit input from its l
stakeholders to ensure meaningful outputs and outcomes from any proposed policy revisions.
L l The agency staff met with its stakeholders to discuss its enforcement policy, with an emphasis I
on non-escalated enforcement, on September 3,1998. The Commission intends to move
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L l QUESTION 20. 2 l forward as expeditiously as possible in making appropriate revisions to its enforcement policy as described in response to Question 17 and in providing training to its staff.
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QUESTION 21. On page 11, you note that the proposed FY99 appropriations level will reduce your budget request by at least $17.8 million, causing you to curtail inspectum and reactor oversight programs, curtail safety research and substantially reduce rnany support activities. Given that $17.8 million is only 3.5% of your requested budget, please explain why this small reduction would have such a dramatic impact on these programs. Why can't this small reduction be absorbed by eliminating low value programs and activities?
ANSWER.
A reduction of $17.8 million rapresents a challenging reduction for the agency to absorb. The NRC budget has been declining over the past several years. As measured in constant FY 1993 dollars, the NRC budget has been reduced over 20% through FY 1998, from $540 million to
$422 million. The $17.8 million reduction is amplified by the need to absorb a higher than budgeted federal pay raise, unbudgeted costs in carrying out personnel reductions, and Commissum decisions since the budget was submitted to add resources in areas such as control of orphan sources, speeding licensing reviews, development of a recycle rule, dry cask storage reviews, preparation for an AVLIS enrichment plant application, etc. The NRC budget has little flexibility, and reductions in funding result in program and support activities being deferred. Reductions were indeed focused on lower priority activities.
ANSWER OF COMMISSIONER DIAZ. -
in my view the NRC can improve its processes to ensure that no reduction in adequate protection of public health and safety results if these reductions are effected. Even with the
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contemplated reductum, planned programmatic changes and improved processes can still assure adequate protection.
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t QUESTION 22. (A) On page A-15, you state that the Commission has approved the l
l development of guidelines for applying Safety Goals and their subsidiary objectives in plant-specific regulatory activities. When
. will the safety goal policy be applied to the regulations on a generic basis?
i ANSWER. 4 1
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The Commission's Safety Goal Policy Statement was issued in 1986. As indicated therein, and 1 in the Commission's June 15,1990 Staff requirements Memorandum, the original intended use was for examination of regulations and other generic matters, and not for making plant -specific decisions. The staff presently does apply safety goal considerations in the regulatory analyses i
conducted on all proposed reactor rulemakings or generic requirements. This requirement is j i
documented in NUREG/BR-0058, Rev. 2," Regulatory Analysis Guidelines of the U.S. Nuclear l l
Regulatory Commission" issued in November 1995. However, many of the Commission's l regulations were in place prior to issuance of the Safety Goal Policy and, therefore, were not assessed in light of that policy. Accordingly, the NRC is currently considering options for reviewing all reactor regulations with respect to their safety significance (considering factors !
such as the Safety Goal Policy) and will decide in the near future on a course of action.
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QUESTION 22. (B) Why is this activity limited to just plant-specific regulatory action 1 and not the regulations themselves? :
l ANSWER.
The Commission's Regulatoy Analysis Guidelines already require consideration of Safety i l Goals in imposing new generic requirements, including changes in regulations. The l !
l development of new guidelines referenced on page A-15 refers to extending the existing policy j on a plant-specific basis. As discussed in the response to Question 22(A), the Commission is l considering options for assessing all reactor regulations with respect to their safety significance.
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l OUESTION 23. (A) In your oral testimony, you stated that you have asked the industry to submit rulemaking petitions to make reactor regulations risk-informed. Why, when the NRC is responsible under the Atomic Energy Act for promulgating requirements to establish adequate protection, do you think this is the industry's responsiblity?
i ANSWER. !
i The NRC is responsible for promulgating requirements for adequate protection, and the existing requirements are sufficient for this purpose. The NRC'does not rely on rulemaking petitions to I
initiate rulemaking. However, we operate in an open forum and always encourage public, ;
l including industry, input to our processes. From the perspective of nuclear safety, it is vital that licensees of nuclear power plants play a large and integral role in the development of safety requirements because licensees have prime responsibility for ensuring the safe design, construction and operation of their facilities. From the perspective of regulatory policy, it is vital that the NRC seek the views of all stakeholders that will be affected by new requirements. One consequence of not doing this in an effective way with respect to the nuclear industry can include a drawn out rulemaking process due to a protracted dialogue over numerous technical and process issues or resultant requirements that are overly prescriptive and burdensome.
Lessons teamed from previous rulemaking activities indicate that soliciting rulemaking petitions from our stakeholders provides an important opportunity to consider and understand stakeholder priorities and help ensure the efficient use of both industry and NRC resources.
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QUESTION 23. (B) What effort is underway within the NRC to identify regulations that can be made risk-informed and changed by the agency?
ANSWER.
l The agency is currently in the process of revising the event reporting requirements for nuclear i power reactors contained in 10 CFR 50.72 and 50.73 (1) to reduce or eliminate the reporting burden associated with events of little or no safety significance, and (2) to better align the rules with the NRC's current needs, including (a) revising reporting requirements based on importance to risk and (b) extending the required reporting times consistent with the need for 1
prompt NRC action. The NRC has requested public, including industry, comments on these rules and any other reporting requirements that can be risk-informed or simplified. An advance notice of proposed rulemaking was published in the Federa/ Registeron July 23,1998. A public meeting on the subject was held on August 21,1998. The proposed rule is scheduled to be published on April 2,1999, and the final rule is scheduled to be published on January 7, 2000.
l In addition, we have initiated rulemaking to revise rules on source terms; maintenance; and changes, tests, and experiments (10 CFR 50.59).
We also plan to institute an interoffice review which will take a fresh look at items including the l
NRC regulations, and will also consider the results from the NEl Whole Plant Pilot initiative and I recommendations from the Center for Strategic and International Studies project to assess the NRC's efforts to improve its reactor regulatory process. The staff is preparing an options paper for Commission decision on modifying Part 50 to be risk-informed.
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l QUESTION 24. (A) On page A-16, you state that each of the pilot risk applications (inservice inspection, inservice testing, graded QA and technical i specifications) have proven successful at specific power reactor l licensees. As of the date of the hearing, how many plants in each 1 .
area have received approval by the NRC to apply the appioach?
ANSWER.
One plant (the South Texas Project, the pilot plant) has received approval for their graded QA program, and four plants (San Onofre Nuclear Generating Station, the South Texas Project, Fitzpatrick, and Fermi 2) have received risk-informed technical specifications amendments. In addition, the Commanche Peak inservice testing pilot review has been completed since the l
hearing date. Several pilot applications for risk-informed inservice inspection are in an advanced state of review and are scheduled for completion by January 1999.
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QUESTION 24. .(B) . What is your measure of " success"?
ANSWER.
The NRC considers the pilot activities to be successful when they resolve significant technical and process issues that would otherwise be an issue in the review of each subsequent plant- I specific submittals. Pilot reviews provide licensees with "up front" guidance for planning and i
preparing proposals to the NRC and allow the NRC an opportunity to improve the efficiency of j its review procedures. Pilot activities are considered to be complete when the NRC takes a formal action with respect to the pilot proposal such as issuance of a license amendment, promulgation of a new or revised requirement, or acceptance of a program or process via ;
completion of an inspection. The ultimate success of the pilot activities will be measured by 1
how the industry and NRC apply lessons-learned to improve the regulatory processes, to l 1
reduce unnecessary burden and review time for future risk-informed submittals, and to proceed ;
more rapidly toward more risk-informed, performance-based regulatory approaches. !
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l QUESTION 24. (C) Does the industry agree that these pilot applications were successful?
l l ANSWER.
Severalindustry representatives have expressed dissatisfaction publicly with aspects of the i
pilot applications. Industry concerns have, in general, been associated with the extended ,
duration, the level of detailed information, and the resources necessary to support the pilot activities. One licensee, after completing a graded quality assurance pilot application, expressed concerns that they were unable to realize the expected implementation benefits, in part, because of other regulatory requirements.
The NRC will continue to solicit feedback of the effectiveness of both our pilot activities and our transition to more risk-informed and performance-based approaches. While we recognize the industry dissatisfaction with some of the pilot activities, we continue to believe that the ultimate success of the pilot activities will be measured by how the industry and NRC apply lessons-learned to improve the regulatory processes, to reduce unnecessary burden and review time for future risk-informed submittals, and to proceed more rapidly toward more risk-informed, performance-based regulatory approaches.
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QUESTION 25 (A) Why did the pilot risk applications take four to six years to complete when no rulemaking activity was required?
ANSWER.
Although the pilot activities did not culminate in promulgation of requirements, they have been linked with the development of new NRC procedures and policies, and industry guidance documents which required resolution of a number of complex and difficult technicalissues applicable to all risk-informed licensing reviews. The most significant issues include: (1) developing a risk-informed framework and acceptance guidelines that could be applied in plant-l specific licensing decisions, including the pilot applications; (2) defining and articulating the
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scope and quality of a PRA being used to support a licensing proposal; and (3) developing a l practical approach to address uncertainty in PRAs. The process for resolving these issues i
j included the development of candidate resolutions through recommendations by the NRC staff,
[ review and consideration of the various options by the Commission and its independent l - advisory groups, and review and comment by the public. As regulatory positions were being l established through this process, licensees were asked to supplement their original pilot risk proposals with information to address these positions. Although this process has been time consuming, and at times inefficient, the NRC staff believes that it was necessary to ensure a coherent and predictable process for conducting licensing reviews that satisfy all of the i
objectives of the Commission's policy statement on the use of PRA (i.e., to enhance the process for making safety decisions, to make more efficient use of agency resources, and to remove unnecessary burdens on licensees).
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1 QUESTION 251A).
2 Clearly, future reviews of risk-informed licensing actions will have to be more timely than the l pilot applications were. The NRC has committed to several actions to expedite the review 1
l process by increasing the priority for risk-informed licensing action reviews. Allocation of staff '
resources will be based on potential safety benefits of the action, and on potential savings of staff and licensee resources. In addition, a lead project manager (PM) for the coordination of risk-informed, performance-based licensing actions has been identified. This lead PM will identify, monitor, and coordinate risk-informed licensing actions; keep track of the review schedules; help identify problems that may require management attention; and coordinate follow-up actions (if any). Also, the management oversight steering committee on PRA has been reestablished to provide policy, technical, and priority guidance on risk-informed l
regulation; the committee consists of the NRC Office Directors from the Office of Nuclear i Reactor Regulation, the Office of Nuclear Regulatory Research, the Office of Analysis and l Evaluation of Operational Data, and the Office of Nuclear Material Safety and Safeguards. l Finally, a risk informed licensing panel is assisting in focusing management attention, as necessary, on risk-informed licensing actions. ,
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QUESTION 25. .(B) What incentives are there for the industry to propose risk- -
Informed changes to the regulations themselves given this track l record?
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NRC discussions with the industry indicate that the industry sees risk-informed initiatives as a
. viable approach to reducing costs and regulatory burdens while maintaining or even improving safety. The Commission's PRA Policy Statement, staff training, and activities to develop guidance on using risk-informed approaches have all served to make the increased use of risk information in the regulatory process a reality. In addition, the management oversight steering committee on PRA will help ensure a more disciplined, timely process by providing policy, l
l technical, and priority guidance on risk-informed regulation. The NRC is now in a position to work efficiently and effectively with the industry to approve risk-informed applications which i enhance or maintain safety while reducing unnecessary regulatory burden.
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r QUESTION 26. On page A-18, you state that the NRC has revised guidance for reactor inspection activities to incorporate risk insights and to be more performance-based. When were these improvements promulgated?
What results have you seen?
ANSWER. i l
( Inspection Manual Chapter 2515 " Light Water Reactor inspection Program - Operations Phase" j Appendix C "Use of insights Derived from Probabilistic Risk Assessment (PRA)" was revised '
and reissued in September 1997 as improved implementation guidance for inspectors. More i than two years prior, when it was first determined that new inspector guidance was needed, it i
l was also determined that this guidance alone would not be sufficient to effect a significant t .
change in the way the inspection program was conducted. Therefore, the approach take' r'as four-pronged: 1) rense the inspection manual guidance,2) expand the application-o.,df.ed L PRA training designed specifically for the inspector (two weeks in length), 3) train and qualify -
ten experienced inspectors (Senior Reactor Analysts) in advanced PRA techniques and locate j two SRAs in each regional office and two at headquarters, and 4) require a 3-day PRA training course directed toward all NRC technical managers and supervisors. To date,1) inspection :
i guidance has been issued, 2) inspector training commenced in January 1998, and with one class scheduled each quarter we are on track to have at least one resident inspector so trained at each reactor site by the end of CY1998,3) all SRA positions have been filled and only two l
SRAs remain in training, and 4) training for two-thirds of the managers and supervisors is .
L expected to be complete by the end of FY1998 with the remainder complete by the end of FY ;
l ' 1999. Insufficient time has passed to directly measure results from these efforts in the day-to-p . day conduct of the inspection program. Our expectation is that as more people are trained, the o
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published implementation guidance will be more effectively implemented. Furthermore, we are currently planning to restructure the inspection program on a more risk-informed basis in 1999 to more quickly achieve a risk-informed focus of our inspections.
However, results to date have been achieved predominantly through the activities of the SRAs.
These individuals are actively involved in regional assessments of the significance of operating events and proposed enforcement actions, in providing plant-specific risk insights during the various integrated performance review processes, in providing advice and expertise to assist other regional inspectors with inspection planning and, when necessary, leading inspection teams.
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QUESTION 27. On page A-19, you state that core inspections are performed at all sites,
, independent of licensee safety performance.- What considerations have .
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by relying more on self-assessments and audits performed by these ]
licensees?
ANSWER.
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The core inspection program is the minimum inspection effort that is performed at a site to confirm licensee performance and identify potential problems in the early stages. When an ;
event or issue requires additional inspection to the core inspection program, regional initiative ;
inspection is performed in those functional areas where licensee performance.has been rated i as not meeting' Systematic Assessment of Licensee Performance (SALP) of 1 (the highest rating for a good performing licensee). Regional management may recognize a licensee's good performance and self-assessment capability by reducing the scope of NRC inspection effort for I
regional initiatives. Since the core program is the minimum inspection effort performed by NRC !
at good performing licensees, reduction of inspection effort for licensee self-assessment for the core is not currently allowed. Recently, the NRC formed a task force to re-define the core !
inspection program, with the goal of making it more effective, efficient, and risk-informed. This I effort is being con' ducted together with a similar effort regarding the NRC's plant performance ;
assessment process. Both of these efforts will define what plant performance indicators are j 1mportant from a risk perspective and where such performance data can be obtained.
Performance indicators and/or licensee self-assessment data vill be used in determining the l
level of NRC inspection activity. l C
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QUESTION 28. (A) On page A-20, you state that there was an "across the industry" decline in attention to maintaining the facility design basis, if this is so, why did you stop you're a/E inspections? !
ANSWER.
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l in 1997 and 1998 the NRC performed A/E inspections at 20 facilities. These facilities were I selected for inspection based upon several factors including the age of the facility,- !
probabilistic insights, problem plant status, performance in the engineering area, and the licensee response to the agency's 50.54(f) letter on adequacy and availability of design bases information. This letter had been sent in October 1996 to all plants after design basis issues had arisen at Millstone, Maine Yankee, Haddem Neck and Crystal River. Selections were also ;
made to assess engineering at plants where Regions had concems regarding engineering !
performance. Based on the selection process,20 facilities were selected where NRC had potential concems about design basis issues. From these 20 inspections, the NRC gained a general understanding of the extent and safety significance of design basis issues across the industry. This was documented for the initial 16 inspections in information Notice 98-22, j
" Deficiencies identified During NRC Design Inspections." The inspections were stopped l
because the program had fulfilled its objectives of (1) ensuring the safety of those facilities where design basis issues were of potential concern and (2) providing the NRC generic l information from which decisions could be made on the need for future regulatory action in this area and because the body of the results from the A/E inspections did not establish an across-the-industry decline in attention to, or maintenance of, the facility design basis. The NRC does recognize that the lack of completeness and availability of design basis
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i QUESTION 28JA). 2 While the resource-intensive NE inspections were terminated, the NRC plans to continue
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inspections of design basis issues as resources permit at other plants identified by NRC reviews of licensee responses to the October 1996 50.54(f) letter. While the 20 NE l ' inspections addressed the highest priority plants, the remaining design basis inspections will I
utilize a less intrusive inspection procedure, IP 93809, " Safety System Engineenng Inspection," which was developed in response to the design bases concems.
Since the mid 1980's, the NRC has conducted various types of safety system design basis l inspections such as Safety System Functional Inspections, Electrical Distribution System
- l. Functional Inspections, and Service Water System Operational Performance inspections.
! These inspections have focused on the adequacy of safety system designs and conformance r 1 l of the facility with the design basis. The NE inspections were not a new concept but j i -
i l represented a short time increase in focus of the design area. I CHAIRMAN JACKSON'S ADDITIONAL STATEMENT:
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l licensing bases. As a result of the NE inspections and licensees' responses to the 10 CFR j i
- 50.54(f) letter, licensees appeared to have appropriately focused attention on maintaining facility design bases. Therefore, the NE inspections accomplished their objectives, and were replaced by a less intrusive inspection
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I QUESTION 28. (B) What vous the safety significance of this lack of attention at a j typiV . hy? If the safety significance of design basis ]
deidxncies was low, what does this tell you about the safety i
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- - Of the initial 12 NE inspections, one plant (D. C. Cook) elected to shut dowr
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units because of concems identified during the inspection. Four other plants (TMI, Perry, H. B.
Robinson, and Vermont Yankee) were issued Notices of Violation at a Severity Level ill. These E significant violations were issued because of the lack of assurance that safety systems were l able to perform their intended functions under certain conditions.
i For more recent NE inspections, there have been some inspection findings that appear to represent similar inadequacies relative to the ability of systems to perform their intended safety functions. These findings are currently being evaluated in accordance with the enforcement ]
process. For some recent inspections licensees have self-identified equally significant l problems on their own prior to the inspection. These NE inspections showed that the industry, l L with the noted exceptions, did not have serious safety problems as a result of design-basis issues. While the inspections did identify the need for additional definition, documentation and compliance, adequate protection of public health and safety was not compromised. Given l
these findings, the NRC staff believes the safety focus of our requirements was appropriate.
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QUESTION 28JB). 2
- CHAIRMAN JACKSON'S ADDITIONAL STATEMENT.
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While it is true that the majority of A/E team inspections did not identify significant safety problems at the facilities inspected, the significance of the errors identified at D.C. Cook, Three 1
Mile Island, H.B. Robinson, Perry, and Vermont Yankee indicate the importance of maintaining design basis information, and the configuration of a given facility, up-to-date and accurate.
! Further, the results of the A/E team inspections relate only to the specific population of facilities l inspected, not the industry as a whole. Significant design basis issues have been identified, l .
l both by NRC and licensees, outside of the A/E team inspection process. Examples include l- design and licensing basis issues at Crystal River 3, Millstone, Haddam Neck, and Maine j Yankee.
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QUESTION 29a. In response to an oral question regarding the Tim Martin Associates study, you indicated that comparisons between NRC staffing levels per reactor to levels for other countries could not be made because other coisntries use manpower from extemal sources to augment their program. Your FY 1999 budget estimate shows that 40% of your budget ,
f is for contractor support. How many contractor FTEs are included in this amount?
ANSWER:
- The NRC uses contractor support in areas where it is economically beneficial. This includes i
using contractors to provide expertise where it does not exist within the NRC and would not be cost beneficial to hire staff with the expertise. These services procured through contracts include areas such as administrative support, information technology systems support, and l technical and scientific analysis. It is estimated that in FY 1999, the NRC budget would support approximately 850-900 contractor employees. This reflects the number of people performing work supported by NRC's contractor support funding. This figure should be viewed as an i l estimate of the level of effort involved with NRC activities at any one time, although there is considerable movement within the mix of activities and individuals. Civil servant staffing levels are estimated across the government as full-time equivalents (FTE) based on a standard i
- calculation of available hours to be worked. It cannot be assumed that an agency's FTE level represents the number of people on the payroll at any time.
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QUESTION 29. In response to an oral question regarding the Tim Martin Associates l
study, you indicated that comparisons between NRC staffing levels per reactor to levels for other countries could not be made because other j l
countries use manpower from external sources to augment their i program. Your FY99 budget estimate shows that 40% of your budget is for contractor support. i i
(B) Do you plan to conduct any studies of foreign regulatory programs to determine how consistent your ratios are with theirs? If not, i i
why not?
ANSWER.
The unavailability of, and disparities in, data conceming key elements of foreign regulatory l processes make it extremely challenging to develop reliable information which would yield practical insights for assessing whether NRC's regulatory approach requires disproportionate I l resources compared to foreign countries. However, we are in the process of trying to develop a 1
comparison and will provide it to the Committee.
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QUESTION 30. What' steps does the Commission intend to take to ensure that licensing l proceedings, like the license transfer proceeding associated with the sale i
L of TMI Unit 1, remain focused only on issues directly pertinent to the subject of the proceeding (e.g.,in the case of the TMI Unit 1 sale, the i-l technical and financial qualifications of the prospective owner / operator)?
l li ANSWER.
L The Commission has been engaged in an ongoing process to streamline licensing proceedings including those associated with license transfers. In connection with license transfers, the Commission's regulations require consideration of the technical and financial qualifications of the proposed transferee to the extent appropriate to the authority being sought in the transfer application; a review of antitrust matters may also be needed. Among the more important matters, the staff reviews the financial qualifications and decommissioning funding assurance l provisions made by the proposed transferee, in this regard, a Standard Review Plan (SRP) on ,
I l Power Reactor Licensee Financial Qualifications and Decommissioning Funding Assurance {
i reviews, now before the Commission, provides a plan of action for how the NRC staff will - I g evaluate, among other areas, license transfer requests under 10 CFR 50.80, with focus on the
! issues of (1) transferee's financial qualifications and (2) methods by which the transferee will provide decommissioning funding assurance acceptable to the NRC. By adhering to the SRP, the staff's review should remain focused on issues directly pertinent to the evaluation of the ;
technical and financial qualifications of the prospective owner / operator.
i The NRC has received and processed about 45 license transfer requests over the past five years. Depending on the accuracy and completeness of the transferee's application, the NRC I r !
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staff has typically completed its review of the financial qualifications and decommissioning funding assurance aspects of the proposed transfer within two months of receipt of the applicathn. With environmental assessment notices and preparation and execution of orders l approving the transfer, the total approval process typically takes about three months. However, .
atypical applications may take longer, particularly if unusual issues of antitrust or foreign
( ownership, domination, or control are involved. Thers is also the possibility that a hearing request filed by an intervenor could extend the overall process, although the Commission, in 1992, determined a hearing need not be held prior to action on the transfer application itself once the staff has otherwise completed its review of the application.
The SRP also generally addresses reviews required under the Atomic Energy Act of 1954, as amended (AEA), to determine whether proposed transferees are owned, dominated, or controlled by foreign entities. However, because foreign ownership issues are case-specific and because there remain difficult policy and legal issues that are contingent on the specifics of I
l each transfer application, the NRC intends to evaluate this issue as specific transfer requests 1
! are submitted. The staff is also preparing an SRP to address foreign ownership issues.
In addition, the NRC issued a final SRP on Antitrust Reviews in December 1997, which contains l a detailed description of the review process of the antitrust concerns that the NRC is required to evaluate under Section 105 of the AEA. In the NRC's license transfer reviews, antitrust considerations have not been a significant issue. Nevertheless, because of the requirements in the AEA foi coordination with the Department of Justice, the potential remains for an uncontested "significant change" antitrust review to take 9 months or more. An antitrust review contested by intervenors may well take longer. In the specific case of the TMI Unit 1 sale, the 4
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( QUESTION 30. 3 facility has a license issued under Section 104b of the AEA, and is grandfathered from antitrust reviews. l l .
The NRC staff is also developing a plan of action and milestone schedule for those future transfer requests that involve previously unevaluated technical qualifications issues or which !
involve transfers to non-owner operators.
Finally, on September 11,1998, the Commission published in the Federal Reaister for a 30-day comment period a proposed rule that would establish new, informal procedures for license transfer hearings that, if promulgated as a final rule, could, in general, substantially reduce the L time for such hearings. The Commission has also expressed its support for legislation which would remove.the Commission's role in antitrust reviews (part of the President's electric utility restructuring legislation) and for legislation which would repeal the foreign ownership and
. control provisions of sections 103b and 104b of the Atomic Energy Act for utilization fac: - ;.
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7 QUESTION 31. The Federal Energy Regulatory Commission recently completed a four- !
month study to evaluate ways to streamline the agency's activities to 1
more effectively address the needs of the industries it regulates. FERC announced that it will implemen,t improvements identified in the study includ;ng (1) bench marking FERC activities; (2) promoting competitive markets through a pre-filing process to reduce agency processing time; (3) implementing collaborative pre-filing procedures to achieve earlier resolution of issues and more timely decisions; and (4) establishing a structure for gathering and considering proposals for policy changes. On l their face, these are innovative approaches some of which could be adopted by the NRC.
9 (A) What actions will the NRC take to develop way to reduce processing staff time, to engage in more collaborative activity with the industry, and to implement more efficient methods to accomplish the agency's regulatory mission?
ANSWER. .
During a licensing workshop with the industry on July 20 and 21,1998, the NRC staff discussed the possibility for using collaborative pre-filing procedures to achieve earlier resolution of issues and more timely decisions. The NRC staff has committed to work further with the industry to evaluate means of implementing a number of concepts discucsed at the workshop to improve process efficiency. In developing a collaborative pre-filing process, the NRC staff remains sensitive to the need to ensure a process that is open and accessible to the public.
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QUESTION 31.(A). 2 in addition, the Commission encourages the industry to work together to develop collaborative solutions to issues that affect large groups of facilities. Such collaboration has been accomplished through the Nuclear Energy institute, ths Electric Power Research Institute, vendor owners' groups and other ad hoc organizations. Such collaborative efforts on the part of industry have proven effective in resoMng significant issues while reducing resource allocations for both the industry and the NRC staff.
The NRC has been interacting with its stakeholders through its public meeting process, and has j increased the frequency of its public meetings with its stakeholders, including the industry. The !
1 NRC has asked the Nuclear Energy Institute to provide proposed rulemakings in areas believed l byindustry to be in need of regulatory reform and has committed to give a high priority to these i
areas.- One example area where there is priority attention given industry concems is the acceleration of the implementation of risk-informed and performance-based regulation. Another is licensing and rulemaking of dual-purpose cannisters for spent fuel.
c l The NRC is using its Strategic Assessment and Rebaselining process as a basis for its self-assessment processes and for the implementation of more efficient methods for accomplishing i
the agency's regulatory mission. Reorganizations are being implemented which will streamline ;
the operation of the offices and realign and consolidate office functions. The Operating Plans for each office are being used to benchmark performance, and these are updated on a quarterly basis.
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! To reduce processing staff time, NMSS is using or developing standard review plans (SRPs).
t l Management is strengthening its oversight of staff's implementation of these plans to ensure L
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i QUESTION 31.(A). 3 '
i that issues are pertinent and are not overly conservative. In addition to documenting I application deficiencies, NMSS is now meeting with applicants to ensure that both parties have l
a clear understanding of what NMSS seeks. NMSS'irnmediate goalis to have no more than l l
two rounds of questions on an application; NMSS' long term goal is to make guidance and !
SRPs sufficiently clear that application submittals will be acceptable without additional questions.
NMSS is already engaged in collaborative activity with industry and with the Department of Energy. For example, h' MSS has involved industry representatives and NEl in the development of the new medical rule,10 CFR Part 35, and in the revision to the fuel cycle facilities rule,10 l
CFR Part 70. In the waste management area, NMSS meets extensively with licensees, other Federal agencies, and the public. More specifically, NMSS has worked extensively with DOE for more than a decade to ensure that both agencies have a common understanding of the requirements and information being developed for licensing a high-level waste repository.
l NMSS is actively implementing more efficient methods to accomplish the agency's regulatory I mission through activities such as continued expansion of the electronic process for material license application submittal, review, and evaluation; and consolidation and updating of i
guidance documents. As mentioned above, NMSS is increasing the use of meetings with j- licensees and applicants to supplement written communications. Experience is showing that <
these meetings significantly increase the efficiency of NMSS interactions with the licensee community.
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QUESTION 31.fA). 4 The Commission has moved to streamline the adjudicatory process, while still ensuring that a l fair hearing is conducted and a clear and complete record is created. The Commission has i
commenced a study of the entire hearing process and' expects to receive staff
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recommendations by the end of this year on specific changes that would make NRC proceedings more efficient and timely. The Commission expects that this study will specifically address the question of need for legislation to streamline the hearing process as well as the viability of rulemaking, without legislation, to streamline that process, i
l In the interim, the Commission has developed and issued a " Statement of Policy on Conduct of Adjudicatory Proceedings" which provides guidance to the licensing boards and parties to i Commission proceedings on how the Commission expects its proceedings to be conducted. ;
The Policy Statement encourages licensing boards to establish and adhere to case-specific schedules, to shorten filing and response times where practical, to manage discovery to avoid L unnecessary delays in that stage of the adjudicatory process, to make sure that the parties comply with the Commission's regulations governing the submission of admissible contentions, l and to issue decisions in a timely manner. The Statement further makes it clear that the Commission itself will carefully and actively monitor ongoing licensing proceedings to ensure that they are conducted expeditiously and that the boards, staff and other parties receive l prompt guidance on emerging technical, policy and legal issues, as necessary.
Consistent with the desire for expeditious processing of licensing actions, the Commission on i.
- August 19,1998, issued an order giving guidance and recommending a schedule to the i
Licensing board that will preside over the licensing renewal proceeding for the Calvert Cliffs
QUESTION 31.(A). 5 Nuclear Power Plant and a similar order on September 15,1998 for the Oconee license renewal proceeding.
The Commission has also published for comment a proposed rule that would establish new, informal procedures for license transfer hearings that, if promulgated as a final rule, could, in general, substantially reduce the time for such hearings.
4 Finally, the Commission has directed the staff to seek legislation that supports the NRC's reading of section 18% av Be Atomic Energy Act to reflect the reading that formal adjudications are not required. - eher with the anticipated application from USEC for the AVLIS uranium enrichment process expected early next year, the NRC will consider seeking legislation that would modify section 193's inflexible approach to hearings.
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OUESTION 31. (B) Does the Commission have any plans to implement a bench I marking process? If so, please provide the schedule for implementation.
l ANSWER.
l l The NRC has contracted with Arthur Andersen and Company to (1) conduct an assessment of l
the Office of Nuclear Reactor Regulation programs and activities to ensure that they are derived in response to strategic goals and that they achieve their intended purpose in an effective and efficient manner, and (2) evaluate the NRC's current practices for developing and l
executing its planning, operating plan, budgeting, program assessment and performance measures and monitoring practices and processes. As part of the assessment, Arthur Andersen and Company will evaluate how NRC performs these activities in recognition of best practices in both the public and private sectors. The NRC also plans to initiate, in FY 1999, an evaluation of its support activities using an experienced contractor (e.g., Arthur Anderson and Company). This task will also include a comparison of NRC's support activities to the best practices in both the public and private sectors. Additionally, the NRC consulted with the Federal Aviation Administration and the Department of Transportation to gain information on other Federal agency program effectiveness.
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QUESTION 32. Many past reviews point out consistent problems with the NRC's regulations and administration of the regulatory system. These reviews include the Kemeny Report (1979), the Rogovin Report (1980), the Regulatory impact Surveys (1981; 1989), the National Academy of l Science report (1992), the Regulatory Review Task Force Briefing i
- j. (1994), and the Towers Perrin Report (1994). Most recently, members of the industry and public expressed their ongoing concerns at the July 17, l' 1998 stakeholders meeting sponsored by the Commission. Criticism of f
L the NRC common to the reviews include: the NRC's highly prescriptive regulation / lack of performance-based regulation; the failure to focus NRC resources on higher priority safety-related issues; the pervasive subjectivity in NRC regulatory decisions and processes; the failure to exercise adequate management control and oversight of NRC staff; the l significant overlap and duplication of roles and responsibilities within the NRC; and the intrusiveness of NRC regulatory processes that add little to the safety margin of nuclear plants. We are concerned that these 1
problems were identified almost two decades ago and still have not been l l
l effectively addressed. i l l (A) What action will the Commission take to ensure that these long-standing problems will be permanently corrected? j (B) Please describe each action or activity designed to address the problems identified above and their expected date of completion.
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l AblSWER.
1 Since the early 1990's, the NRC has initiated program's and processes that have, as a principal goal, reviewed our current regulatory requirements to determine whether they can be modified or eliminated to improve safety, reduce unnecessary licensee burden, or improve staff efficiency, included among these efforts were the National Performance Review for all areas, the Regulatory Review Group for reactor-related areas and the Business Process Reengineering process for materials-related areas. These efforts and others would show that NRC has attempted to address a number of industry concerns. However, we did not progress to the extent we had hoped in improving our regulatory processes and programs. Currently, we l l
are trying to leam from the mistakes in the past and establish processes that are scrutable and adequately balance safety and concerns about unnecessary regulatory burden.
While not all of the issues or problems in each of the reports in the question have been resolved, much work has been done. Many of the actions described in responses to these and other Congressional questions are actions that were initiated prior to the July 30,1998 i Authorization hearing. However, these same responses show that change is needed and that much effort remains.
4 The Chairman, on behalf of the Commission, has issued an August 7,1998 memorandum to the Executive Director for Operations raising concems about several issues: the predictability, i
L objectivity, and timeliness of NRC decisions; the focus of NRC activities; the quality of NRC-licensee interactions; the implementation of NRC programs; and the size of the NRC staff. The Executive Director for Operations in an August 25,1998 memorandum replied to the concerns l
OUESTION 32. 3 l
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l and described a number of issues that need to be resolved with corresponding milestones and l
l dates for when the actions are to be completed. This " plan" for improving regulatory processes l
- end programs is considered to be a living document snd will be updated on a periodic basis.
We racognize we need to improve, and we are aggressively seeking solutions to these and other concerns and will continue to look for ways to improve NRC's performance.
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l I QUESTION 33. For the past three years, the Chairman has provided the other Commissioners Staff papers and other information only after the Chairman reviewed the papers and/or information and changes requested by the Chairman have been made. Thie appears to be l
l contrary to Congress's deliberate decision in the Enes Reorganization l
Act to create a Commission rather than a single administrabr to establish the NRC policies.
(A) How does this approach advance the Commission's ability to l
I manage the NRC in a timely and efficient manner?
1 (B) What action will be taken to ensure that each Commissioner is fully informed about agency policy matters without first being filtered through the Chairman's office?
ANSWER OF CHAIRMAN JACKSON.
It is true that the Energy Reorganization Act of 1974 created the Nuclear Regulatory Ccmmission (NRC) and the commission format to establish NRC Policies. As Chairman I have worked to fully comply with the statutes underlying the NRC. In order to do so I believe it is l important to recognize that Reorganization Plan No.1, passed by Congress in 1980 (1980 Plan) made changes to the organizational structure established by the Act of 1974.
The 1980 plan states under section 2 (b) of the Plan, "[t]he Chairman . . . shall be responsible to the Commission for develoolna "oolicy planninc and auidance for consideration by the i
l l QUESTION 33. 2 l
l Commission." (Emphasis added.) The House Report 96-1043 leading up to the Plan at page 4 states: "without a central authority to focus agency objectives, Commissioners have been able to follow individual interests without the appropriate coordination required in the development of policy." The Senate Report 96-790 leading up to the Plcn at page 13 notes that "[t]he amendments [to the Plan] will free him [the Chairman] to te the chief architect of NRC policy and the focal point for development of consensus on the demanding and highly complex issues considered by the Commission." Thus, the review of draft papers allowed the Chairman to carry out the function of developina policy guidance before it was presented to the Commission for consideration, as the central authority to focus agency objectives and as the chief architect of policy, as Congress intended. The intent of this approach was to ensure that all policy options were considered and assessed for the Commission. The review by the Chairman did, in some cases, result in the addition of policy options. However, there were no reviews which l
resulted in changes which eliminated options presented by the staff. The approach in no way precluded the Commission from having " equal responsibility and authority" in the decision the Commission made on the paper, nor was it intended to stifle the flow of information to the Commissioners. In fact the process was intended to enhance the Commission policy review and consideration See Energy Reorganization Act of 1974, section 201(a)(1).
The Commission has recently reexamined the approach for policy development and determined that modifications were needed. Effective June 30,1998, the Commission approved revised intemal Commission procedures that are being implemented which state:
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'The Chairman and the Executive Director for Operations, through the Chairman, are 1
responsible for ensuring that the Commission is fully and currently informed about matters
QUESTION 33. 3 within its functions (ld., Section 2(c)) (of the Reorganization Plan No.1 of 1980). The Chairman shall ens ure promot and full delivery of oriainal information with any changes thereto, including ,qraft_Sgf;Ys and COMs, except preliminary information for development of Section 2(b) (of the Reorpnization Plan No.1 of 1980] proposals and estimates (i.e., proposals for reorganization of the major offices within the Commission, the budget estimate for the i
Commission, and the proposed distribution of appropriated funds according to major programs j and purposes) unless expressly requested by the Commission. The Executive Director for Operations reports for all matters to the Chairman (Id., Section 4(b)) [of the Plan)." (Emphasis added.) NRC Intemal Commission Procedures at p.1-5.
To clarify the papers (i.e., SECYs and COMs) mentioned in the above reference, the primary decision-making tool of the collegial Commission is the written issue paper submitted by the staff and is best known as a SECY paper. The Commission also receivce memoranda from the statt, and at times a staff memorandum may contain a recomm'.sndation or seek guidance from the Commission. This type of memorandum is known as a COM. Sgg NRC Intemal l
l Commission Procedures at p.11-1.
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QUESTION 33. For the past three years, the Chairman has provided the other I
l Commissioners Staff papers and other information only after the 1
- Chairman reviewed the papers and/or information and changes requested by the Chairman hav,e been made. This appears to be contrary to Congress's deliberate decision in the Energy Reorganization Act to create a Commission rather than a single administrator to establish the NRC policies.
(A) How does this approach advance the Commission's ability to manage the NRC in a timely and efficient manner?
(B) What action will be taken to ensure that each Commissioner is
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fully informed about agency policy matters without first being filtered through the Chairman's office?
ANSWER OF COMMISSIONER DIAZ.
l This question appears to call principally for a response from the Chairman. Chairman Jackson ,
is providing her individual response on her intent and past practice regarding the transmission of NRC staff papers and/or information to the other Commissioners after her review and the execution of her requested changes. Thus, I am not in a position to comment fully or endorse the Chairman's response. I provide this separate response as an individual Commissioner.
t' As the question indicates, the flow.of information to the full Commission is closely related to the Congressional decision to establish a collegial decision-making body rather than a single i
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QUESTION 33. 2 administrator. In creating a multi-member body, with staggered terms and diverse party I
affiliation, Congress has provided the necessary checks and balances for decision-making. !
The collegial decision-making structure promotes full and fair consideration of complex nuclear issues and thus addresses sensitive public concern regarding the use of nuclear energy.
l The free flow of information to the Commission has long been understood to be critical to the Commission's deliberative function. The principle of full access to information for each l l
Commissioner has been a part of nuclear regulation since 1955. The Energy Reorganization Act of 1974 continued to provide that each member of the Commission "shall have full access to information relating to the performance of his duties or responsibilities" and Reorganization Plan No.1 of 1980 charges that "[t]he Chairman, and the Executive Director for Operations, through the Chairman, shall be responsible for insuring that the Commission is fully and currently informed about matters within its functions."
These statutory directives provide important underpinnings for an effective Commission.
Unless the Commissioners are fully and currently informed, they cannot properly exercise their responsibility for policy formulation (including management policy), most rulemaking, and 1 i'
oversight of the agency. The full Commission's access to the staff's independent and l .
l sometimes diverse views allows for better-informed Commission decisions. It also enhances
! I the ability of each Commissioner to articulate and consider differing positions and makes more transparent to the Commission the Chairman's actions in the performance of her functions.
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! Therefore, I have requested and supported actions that would assure the sharing of the staff's j
papers and analyses with the full Commission when such information is made available to the
QUESTION 33. 3 Chairman. By its revisions to the Intemal Commission Procedures, the Commission took steps to retum to the status gyg anta so as to ensure that each Commissioner is fully and currently informed and fully able to discharge his or her duties. 'As a consequence of adherence to these procedures, the public will have the benefit of assurances of adequate protection resulting from .
I the diversity of judgment that is expected of this collegial body.
l The revised Intemal Commission Procedures actually enhance the Chairman's ability to discharge the Chairman's responsibility "to the Commission for developing policy planning and {
guidance for consideration by the Commission" in accordance with section 2(b) of I
Reorganization Plan No.1 of 1980. The legislative history of Reorganization Plan No.1 of 1980 quite plainly expresses the Congressional intent that the Chairman's coordinating role does not justify delay in transmitting information forwarded by the staff as information relating to the Commission's functions. Sag, ag., S. Rep.96-790,96* Cong.,2d Sess. at 7-9,18,19-20 (1980). While the Chairman and the NRC staff need not share administrative details on a daily basis or preliminary development of budgetary and reorganization proposals for the Commission's consideration unless specifically requested by the Commission, transparency in the broader development of non-routine matters of policy assists the Chairman and the staff in keeping the Commission fully and currently informed and helps avoid oscillations in policy setting and regulation. Therefore, as Congress intended, the agency and each Commissioner best discharge their responsibility to the country when all Commissioners have early and complete knowledge of key policy issues and proposals.
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I QUESTION 33. For the past three years, the Chairman has provided the other Commissioners Staff papers and other informaticn only after the Chairman reviewed the papers and/or information and changes requested by the Chairman have been made. This app aars to be contrary to Congress's deliberate decision in the Energy Reorganization Act to create a Commission rather than a single administrator to establish the NRC policies.
(A) How does this approach advance the Commission's ability to manage the NRC in a timely and eincient manner?
ANSWER OF COMMISSIONER McGAFFIGAN.
l 1 was concemed with the Chairman's prior review of staff papers before they were submitted to the Commission. For that reason I supported the revision to Commission procedures which
. was finalized on June 30,1998. Under the new procedures staff papers will be submitted to the Chairman and all Commissioners simultaneously. This process appears to be working well in its first three months and has enhanced dialogue on policy matters between the staff and the I
Commission as a whole.
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QUESTION 33. (B) What action will be taken to ensure that each Commissioner is fully informed about agena policy matters without first being filtered through the Chairman't, office?
ANSWER OF COMMISSIONER McGAFFIGAN.
Under the revised Commission procedures, each Commissioner should be informed about
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agency policy matters directly by the staff without filtering through the Chairman's office.
However, the Reorganization Plan of 1980 gives the Chairman primacy in certain matters, for example, presentation of proposed budgets for the Commission, presentation of proposals for i reorganization of major offices, serving as official spokesperson for the Commission, etc. In these areas, the Chairman by statute serves as a filter to the Commission. The goal of the l
collegial Commission process is to ensure, even in hese cases, that the Commission is fully and currently informed. _ in the case of budget preparation, for example, the Chairman in my two years on the Commission has taken by all reports unprecedented steps to make transparent both her proposal and various scenarios that are options to modify her proposal. I have been very satisfied with the Chairman's efforts to ensure Commissioners are fully informed in budget matters and her willingness to make further incremental improvements in the budget preparation process.
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- l. QUESTION 34. We understand that at the stakeholders meeting held on July 18,1998, that you alluded to a mechanism for ramedying the situation where L licensees pay for agency services that do not benefit licensees. These services amount to $56.2 million,and include:
- l. Intemational cooperative safety programs and international safeguards I
activities Agreement state oversight Site decommissioning management plan activities not recoverable under 10 CFR 170 Fee exemption for non-profit educationalinstitutions Ucensing and inspection activities associated with other Federal agencies Cost not recovered from Part 171 for small entities Regulatory support for agreement s'ates Decommissioning / reclamation (A). What is the actual fee reduction you will propose?
ANSWER.
The Commission has determined that reducing the percentage amount the NRC must recover through fees accomplishes the goal of reducing the financial burden on NRC licensees attributable to fairness and equity issues while allowing the NRC to budget for activities which support necessary govemment functions or national policy requirements. We have notified the
QUESTION 34.(A). 2 Office of Management and Budget that if Congress does not enact such legislation in FY 1999, the Commission intends to develop, as part of our FY 2000 budget request, a legislative proposal to revise the Omnibus Budget Reconciliation' Act of 1990 (OBRA-90) to reduce the percentage amount of budget authority that the NRC is required to colbct in fees. Based on previous work, the collection requirement could be revised to remove 10 percent of the agency's budget authority from the fee-based category, in addition to amounts appropriated from the Nuclear Waste Fund and for regulatory reviews and other assistance provided to DOE.
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QUESTION 34. (B) What changes will be made in the NRC's budget to accommodate I the fee reduction?
i If the basis is a percentage reduction, how does this percentage relate to actual expenses for these activities?
j ANSWER.'
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If legislation is enacted to exclude additional costs from fee recovery, the NRC's budget request will continu.e to include the resources necessary to accomplish our mission, including those activities excluded from fee recovery. Fee collections would approximate the amount
- appropriated, less the excluded amounts. For example, if NRC's (non-high-level waste, non-l l
DOE) budget is $450 million and $45 million is excluded from fee recovery, fee collections would be approximately $405 million.
It is expected that 10 percent of the total budget would be close to the budgeted amounts for l
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these activities. The NRC's intent is to provide a simple yet accurate process for estimating the i i
! amount we expect to expend in these areas. The amount is not the same each year and is i
dependent upon such factors as the number of licensees, the number of Agreement States, !
l and the number of licensees that meet the agency criteria for a small entity.
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QUESTION 34. (C) Does the proposed fee reduction include all of the activities described above as currently comprising the 56.2 million.?
Will overhead costs associated with these activities also be eliminated?
ANSWER.
Yes, all the previously mentioned activities comprise the existing fairness and equity concern categories. As a point of clarification, the categories of budgeted costs that raise faimess and equity concerns include all international activities (except import / export licensing activities), not just those described above, and only generic decommissioning and reclamation activities (specific licensing and inspection activities related to decommissioning and reclamation are j
charged to the specific licensee receiving the service). We expect that a 10 percent reduction would include funding required for these activities and would provide stability.
Where appropriate, the estimated amounts include a portion of associated overhead and !
agency general and administrative costs, and therefore would be excluded from fee recovery.
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QUESTION 34. (D) Where will the funds come from to pay for these services if they are excluded from user fees?
ANSWER. ,
Amounts off the fee base are not be collected by the NRC to offset the ager.Vs budget. The excluded costs would be included in the net amount appropriated to the agency ' rom the general fund. Legislation could also be enacted to revise the IOAA to allow NRC to change other federal agencies for services rendered (i.e., Part 170 fees).
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l QUESTION 34. (E) How will your proposal ensure that licensees will not pay for these i activities in the future?
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ANSWER.
The NRC's fees are established by regulation to meet, but not exceed, the legislatively-required fee recovery amount. It is the agency's intent that any fee-reduction proposal it
! submits be used to modify the OBRA-90, or similar legislation enacted by Congress, and therefore remain in effect as long as that legislation is in effect.
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QUESTION 35. (A) Please explain why action to address NRC's fee inequities has been delayed for more than five years.
i What is the Commission doing to rectify the NRC's fee inequities?
l (B) Please identify each action NRC has taken to address any
- concerns raised by Office of Management and Budget regarding the NRC fee structure.
ANSWER.
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l l Absent legislative relief, the Commission has limited ability to remedy any inequities in its fee structure because it is required to collect approximately 100 percent of its budget in fees. The
! NRC has taken several actions within existing fee laws to address concerns regarding its fee structure:
- Identified faimess and equity concem categories in the February 1994 Report to Congress on NRC Fee Policy, indicating that legislation was necessary to address these l concems. The recommended legislation was not enacted.
- In FY 1995, acted under existing fee laws to help to mitigate the fairness and equity concerns by treating costs for these activities similar to overhead and distributing the costs to the broadest base of NRC licensees.
- Established a policy to obtain reimbursement for services provided to other federal agencies when such reimbursements are authorized by law.
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( QUESTION 35. 2 i e Obtained appropriation legislation which removed from the fee base certain costs
- Incurred as a result of regulatory reviews and other assistance provided to the Department of Energy and other Federal agencies.
- e. Initiated a study in 1997 which led to changes in NRC's FY 1998 fee rule to shift cost recovery for certain activities from annual fees to specific fees for services. For example, effective with the FY 1998 final fee rule, the NRC is assessing fees to the major licensees to recover the full cost of resident inspectors. In addition, costs incurred i within 30 days after the issuance of an inspection report are being billed to the specific licensee.
e As part of the Strategic Realignment and Baselining initiative (DSl 21) in late 1996, updated the information presented in the 1994 Report to Congress on NRC Fee Policy, I
and posed the policy issued again to the Commission. Based on that update and subsequent information, the Commission notified OMB in June,1998, that the NRC l
intends to propose, as part of its FY 2000 budget submission, legislation which would reduce the portion of our budget authority that the NRC is required to collect in fees, if -
Congress does not enact such legislation in FY 1999. ' In the past, the OMB has advised that such legislation, which would address f aimess and equity concerns, would be inconsistent with the President's budget.
e Continuing ongoing studies that may impact the FY 1999 fee rule.
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l OUESTION 36. The NRC has stated that a portion of its 3% increase in its budget is
- attributable to an $8.9 million increase in contractor support. Excluding l
the $2.5 million dollars related to high-level waste activities, please provide a detailed description of.how the remaining $6.4 million for contractor support is allocated.
ANSWER.
The net increase of $6.4 million is primarily attributable to the following arenas:
l ARENA COMMENTS $M Nuclear Materials increased requirements to support United States 2.2 i Safety Enrichment Corp.'s Atomic Vapor Isotope Separation (AVLIS) facility licensing review; initiate program to register licensees' devices and continue development of the Licensing and inspection Online System; Develop, revise and improve procedures in the Agreement States program Fund effort for developing trend analysis of material licensee safety performance; Evaluate nuclear materials event experience on a risk L performance basis; Expand support for investigation of harrassment and intimidation cases Nuclear Waste Safety Support review of increase in number of spent fuel 0.8 storage and transportation licenses, Common Defense and Additional costs to support the Nuclear Materials 0.5 Security and Management Safeguards Systems international
' involvement l
._ 7 7 QUESTION 36. 2 Protecting the increased support for decommissioning activities due to 1.7 Environment additional plants entering decommissioning status; increased requirements for decommissioning research and regulation development related to transportation process Management and increased rent for Headquarters and regional offices, 3.5 Support and increased building and maintentance operations; increased Information Technology requirements for user technical support, maintenance and operation of agency information systems; Continued development of agency-wide integrated resource management system Reactor Safety Reduced contractor support for power reactor insoection -2.4 activities; Reduced support for reactor performance assessment and data analysis activities; Reduced research in thermal hydraulics related to power reactors; Reduced contractor support for analysis of operational experience data based on strengthening agency civil service resources inspector General Additional support requirements 0.1 TOTAL 6.4
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I QUESTION 37. .(A) Other agencies that use a fee-based system allocate a much i higher percentage of their fees to specific services. Yet the NRC fee schedule collects approximately 80% of the total fees for -
l generic activities. Approximately only 20% pf NRC fees are
(
allocated for discrete services. Iri response to a question by Congressman Schaefer, the NRC has said that reasons for the low percentage of its fees being allocated to specific services !
L l include (1) NRC inability to recover costs for providing specific )
services to most federal agencies and for infrastructural services j r rendered to Agreement States; (2) exemption of nonprofit
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l educational institutions from fees; and (3) a reduction in fees for l L 1 small businesses. These activities only account for $56.2 million
! . of the 80% generic fees collected. l l
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What agency activities are supported by the remaining $304 l
million dollars in generic fees? l l
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l ANSWER.
l l ~ As required by OBRA-90, the agency first recovers fees for services under the IOAA, and the l- 1
- remainder of the budget authority is to be recovered through annual fees. In addition to the I i
costs for generic activities (such as direct program costs for rulemaking, research, and l maintenance of an incident response center), the annual fees also include costs i
- Inhofe/OCFO I
{ 09/09/98
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l QUESTION 37.(A). 2 of activities that are not recovered from IOAA fees assessed to applicants and licensees (such as contested hearings, responses to allegations, and investigations). The agency has l previously requested public comment on assessing IOXA fees for these activities, but the comments received did not support changing the current policy.
The Commission is taking steps to shift the balance away from annual fees to fees for specific services. Several changes to the Commission's fee policy were made in the FY 1998 fee rule that result in additional activities being subject to specific licensing and inspections fees, such as full cost recovery for resident inspectors and costs expended for inspection activities that
( occur within 30 days after an inspection report is issued. The agency is currently undertaking a l l
l comprehensive review of other activities for potential cost recovery as fees for services to be j
! included in the FY 1999 proposed fee rule for public comment.
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Inhofe/OCFO 09/09/98 i
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l QUESTION 37. (B) What steps are you taking to significantly increase the percentage of fees allocated to discrete services so that the benefits derived i
from NRC activities are more visible to the regulated community?
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ANSWER.
The Commission is taking steps to shift the balance away from annual fees. Several changes to the Commission's fees were made in the FY 1998 fee rule that result in additional activities !
being subject to specific licensing and inspections fees, such as full cost recovery for resident inspectors and costs expended for inspection activities that occur within 30 days after an inspection report is issued. We are currently undertaking a comprehensive review of other activities for potential cost recovery as fees for services to be included in the FY 1999 proposed fee rule for public comment.
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i QUESTION 38. $97 million of the NRC's FY 1999 budget is designated for ,
l contractor fees for Management and Support. In response to a question by Congressman Schaefer on the management and support services that must be contracted for, the NRC identified as examples services for elevator maintenance and software
. upgrades. Excluding elevator maintenance and software upgrades, what accounts for the $97 million in contractor fees?
l ANSWER. '
l The remaining $95 million for Management and Support primarily represents the agency's t
investment in information technology, information management, human resources, administrative services, and financial management. The funding for these activities are as L follows:
($M)
Rental payments on Headquarters and regional offices /
l facilities operations and support 25.5 l Telecommunications support, including local and long distance telephone services, internet service providers, and other -
operator services 8.2 I
Support and maintenance of financial systems, including financial audit services, maintenance of financial systems for fee collection,
- payroll and other services 7.9 l Workstation upgrades, computer operations, and timesharing 7.0 l Permanent Change of station 5.9 ,
Local and Wide Area Network maintenance 5.5 l Records management (Preservation, disposition, storage, collections, access) and library operations 4.8 Development and implementation of Ager.::y-wide
- Document Management System 4.6 Duplicating, printing and graphics 3.3 Guard services and security support 3.3 4
Contract support services that provide specialized adjudicatory
- p. support, transcript services, and other administrative services 3.0 i l Training and Development 2.5 i 1- System development and integration 1.8 General supplies, equipment and transportation 1.8
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($M)
Computer systems operations and support activities 1.7 Year 2000 corrections 1.1 Policy, planning and acquisition support activities 1.0 Personnel and Administrataive IT operations and maintenance 1.0 HR IT systeme operations and maintenance 1.0 Workman Compensation . 0.7 Other Human Resources activities (recruitment and personnel record 0.7 management)
Inspector General investigations, audits, evaluation and assessment, and information technology activities 0.7 Health and Employee services 93 TOTAL 95.0 i
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. QUESTION 39. Much of the work performed by NRC Office of Research appears to be duplicative of research performed by industry and govemment national laboratories.
(A) How does the NRC determine the value of the research performed by the Office of Research?
ANSWER.
NRC does not duplicate industry research. The answer to part (c) of this question discusses this. The NRC determines the value of research performed by the Office of Research in terms of its contributions to the quality and timeliness of regulatory decisions made by the NRC.
Eighty percent of our research directly supports regulatory decisions made by NRC's licensing .
offices. The other 20% is anticipatory, it is focused on the potential safety implications of new
. technology and emerging safety issues to improve NRC effectiveness and to position NRC to respond to agencyinitiatives.
A key contribution of the Office of Research lies in the identification of risk significant vulnerabilities early and the development of the technical basis for resolution of such issues before they become a threat to public health and safety. The identification of the significance of pressurized thermal shock events for nuclear reactors and the development of the technical basis for regulatory requirements to mitigate undesirable consequences illustrates the value of the NRC's research. Its value is also measured in terms of the long term strategic perspective that it brings to the identification and resolution of safety issues independent from the operational focus of the licensing offices. For example, without the ground breaking work done
QUESTION 39JA). 2
- by the Office of Research in the field of probabilistic risk assessment, the technical basis would not exist for moving to a risk-informed regulatory approach. Another important contribution lics t
in the elimination of the need for excessive conservatism in licensing decisions which results from gaps in regulatory knowledge. For example, the Piping integrity Research Program provided the technical basis and promulgated an amendment to 10 CFR Part 50 Appendix A, General Design Criteria eliminating the requirement to consider dynamic effects of double ended pipe failure for qualifying piping systems. This led to the elimination of massive pipe whip restraints in nuclear power plants. Similarly, the research program provided the technical basis for the Emergency Core Cooling System (ECCS) rule which allows licensees to increase power rate and reduce regulatory burden. Research also provides the basis for risk-informed and performance based requirements which can allow licensees more flexibility in achieving compliance with NRC regulations and encourage use of cost-effective alternatives. For example, licensees may now utilize risk-informed methodologies that extend testing and inspection intervals as a result of NRC research. The Office of Research also adds value by keeping pace with new technology such that the regulatory process does not impede the I incorporation of such new technology in nuclear plants. In this regard, the Office of Research's Isgh Burn-Up Fuel Program is directed at developing a technical basis for reviewing industry's proposal to use advanced fuel designs in a timely fashion and increase bum-up limits resulting in economic benefits.
As a result of an increasingly competitive environment, the nuclear power industry is now focusing on increased performance by utilizing new technology and taking advantage of margins inherent in current designs and operating conditions. In effect, the design basis envelopes of the U.S. nuclear power plants will change as requests to modify operating
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l OUESTION 39.fA). 3 licenses (e.g., technical specifications, power upgrades) and improve operational performance (e.g., longer operating cycles, new fuel designs) continue to be sought. However, these initiatives to improve parformance involve complex designs operating in a demanding environment of high radiation, temperature and stress, combined with uncertainties in physical phenomena which occur during transients and accidents. The NRC believes there is a great -
value in having a vigorous independent research program that will allow the agency to make
. sound regulatory decisions relative to these initiatives.
Listed below are additional examples of where NRC's research program has added value by enhancing safety by reducing risk at a justified cost, reducing burden on licensees, and by providing a technical basis for credible and timely regulatory decisions. Estimates on the order of magnitude of the outcomes, in risk reduction or cost savings, are several hundreds of millions of dollars for the nuclear industry.
The PRA research program led to the development of regulatory guides that lay out the process, principles and guidance for licensees to make risk-informed changes to their licensing basis - in-service testing (RG 1.175), graded Quality Assurance (RG 1.176),
and technical specifications (RG 1.177). A regulatory guide on risk-informed in-service inspection is nearing completion.
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The Pressure Vessel Safety research program provided the technical basis for a l
regulation (10 CFR 50.66) and regulatory guide (1.162) accepting thermal annealing of l j the reactor pressure vessel as a viable method to mitigate the effects of neutron j irradiation.
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QUESTION 39.(A). 4 j l . The Piping integrity research program provided the technical basis for staff's acceptance of weld overlay repairs of BWR piping as a permanent repair, avoiding costs to replace recirculation piping; resolved concerns over reductions in fracture toughness l of cast stainless steel; and provided realistic predictive models for use in evaluating these materials in lieu of very conservative methods put forward by a reactor vendor.
L-The Mechanical Engineering research program provided experimental results that l
identified the potential for certain safety-related motor-operated valves to fail under design basis loadings. This led the staff to issue Generic Letter 89-10 and to require license 9 programs to evaluate their motor operated valves to assure their operability under the design basis conditions.
The Severe Accident research program provided the resolution of the hydrogen combustion issue for all large dry containments resulting in averting the installation of hydrogen ignitors on these cont'ainments; developed the technical basis for backfitting l the requirement for hardened vents in BWR Mark I containments; resolved concern for direct containment heating for large dry containments; and updated the source term (NUREG-1465) which will allow operational improvements and cost savings.
I L . The Decommissioning research program developed the technical bases for a regulatory !
l t guide, and accompanying NUREGs, to support a rule that established radiological !
b criteria for license termination, and based on results of NRC's research program, l f assisted licensees in conducting radiological surveys and dose assessments. It is
- 1. expected that these tools will enable many of NRC's licensees to move through the t
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QUESTION 39.(At 5 l i
decommissioning process at substantial cost savings from the past with case-by-case decommissioning.
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l QUESTION 39. (B). 2
= Reducing the Generic Safety issue resolution staff in research by utilizing staff resources in the Office of Analysis and Evaluation of Operational Data to help prioritize i and analyze issues. -
L I l- . Applying PC based computer technology to both our technical and administrative work to achieve both staff and dollar savings.
- Consolidating several computer codes for the analysis of thermal hydraulic transients into a single, easy to use code which will, in the future, reduce maintenance costs by
$1.7M per year and will consume less staff time to run the codes.
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.' Using internet-based collaborative computing technology and video-conferencing to
.. reduce travel costs.
It should be noted that the NRC research program has been reduced substantially over the years to recognize (a) changes in the industry, (b) the fact that there are no new reactor license ;
applications, (c) the minimal demand for advanced reactors, and (d) that licensees and vendors perform their own analyses as part of their submittals. Seventeen years ago, the research budget was over $200M and five years ago it was over $100M. Today that same budget is under $50M, reflecting a purchasing power of less that 1/10th of what it was 17 years ago.-
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QUESTION 39. Much of the work performed by NRC Office of Research appears to be duplicative of research performed by industry and government national l laboratories.
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l (C) What consideration has the NRC given to assigning the NRC Office of Research to conduct peer reviews of research performed I l
by the industry so as not to duplicate industry research?
ANSWER. l NRC does not duplicate industry research. In each of our areas of research we maintain an i awareness of related research being planned and conducted by the industry, both domestically I and intemationally through personal contacts at the staff level and through more formal joint workshops.
NRC's research is either of an independent confirmatory nature or is anticipatory research looking at potential or emerging issues to better understand their safety implications.
Sometimes, because the NRC and industry are conducting research in similar areas, it may appear to be duplicative when it is not. A good example of this situation is the work NRC and industry are doing with respect to steam generator tube degradation and rupture.
RelaVve to steam generators, as appropriate for a regulator, the NRC's research program is addressing (1) independent verification of the capabilities of non-destructive examination techniques currently in use, (2) and the development and validation of models used to predict l the failure of degraded steam generator tubes, and (3) the likelihood of that failure resulting in a
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.QMESTION 39. (C). 2 stable leak versus a full rupture of the tube. To fulfill their primary responsibility for safety, industry efforts are more directed to developing new inspection techniques and to developing methods for mitigating the degradation. However, there are common interests in many of these areas. Consequently, the NRC, the Electric Power Research Institute, and some foreign organizations are forming a collaborative research effort to share information, and co-fund activities to avoid duplication and minimize costs.
, NRC has a Memorandum of Understanding with EPRI and our staffs meet periodically to coordinate our respective research efforts. We also meet periodically with the Department of Energy for the same purpose. These meetings help assure that we cooperate when possible l and avoid duplication of effort. In addition we have approximately 35 active Cooperative Bilateral Research Agreements, as well as another 45 Cooperative Research Agreements that are being extended or considered with organizations in more than 25 countries.
4
OUESTION 40. The Office of Research's responsibility for rulemaking activities has been transferred to the Office of Nuclear Reactor Regulation.
(A) Prior to this transfer, what percentage of the Office of Research budget was allocated to rulemaking activities?
ANSWER.
Prior to the rulemaking transfer, the FY 1998 budget for the Office of Nuclear Regulatory Research had 13.1% of its FTE and 4.2% of its contract support / travel funds allocated to the l rulemaking function.
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i QUESTION 40. The Office of Research's responsibility for rulemaking activities has been l
l transferred to the Office of Nuclear Reactor Regulation I l
l-(B) What changes have been made in the Office of Research budget to reflect the reduction in responsibility?
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! ANSWER.
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Twenty-six FTE and contracts with a value of approximately $2.0M were transferred from the FY 1998 research budget to the budgets of the Office of Nuclear Materials Safety and Safeguards, the Office of Nuclear Reactor Regulation and the Office of Administration. These
- transfers moved all of the resources for research rulemaking activities into these three offices. j i
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i OUESTION 41. The Office of Research expends funds to evaluate phenomenological !
l sequences associated with severe accidents for which there is virtually no empirical data. This lack of data iesults in high uncertainty in the results, l potentially leading to more and more research.
Given the low likelihood that a definitive determination about phenomenological sequences can be made, what is the benefit of continuing to expend resources in this area of research?
l ANSWER. i l
l Severe accident research has been conducted is to obtain data on phenomena associated with low probability events and for which little if any data exists from operating experience. Although an extensive severe accident research program was conducted in the past, most of the research programs have now been completed. Most of these efforts were ended when it was determined that there was a sufficient understanding of the severe accident phenomena to support needed regulatory decisics. As part of this determination, programs have not been continued when it was determined that there was a low likelihood that further research would provide additional benefit in resolving severe accident issues or when bonnding assumptions could be used to account for the continued uncertainty in understanding the phenomena. As progress has been made in understanding severe accident phenomena, the NRC severe l accident research program has brought a number of issues to closure and therefore, has been l'
j substantially reduced over the past several years. Program results have been used to develop L
analytical tools to predict the course and consequences from such low probability accidents.
- The current program focuses primarily on maintaining and consolidating the existing analytical r
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I u i QUESTION 41. 2 I l tools which preserve the knowledge and understanding resulting from previous severe accident -
. research. At this time only a small portion of our current severe accident research budget is for l
experimental work and this is directed at improving our analytical tools where such improvements will support the resolution of remaining severe accident safety issues. ;
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QUESTION 42. (A)- In response to a question by Congressman Schaefer, the NRC indicated that it will commit 25 FTEs to review each license - ,
l l l renewal application. Yet, a response to another question !
)
o indicated that a portion of the NRC's budgeted $8.9 million in i
l contractor fees will go to con *ractor support to' review reactor V
I license renewal applicatica:;. Given the relatively narrow scope of i the license renewal application,25 FTEs would seem to be sufficient to review each license renewal application on a relatively abbreviated schedule.
l
- Please provide the job task analysis upon which the decision to allocate 25 FTEs to each license renewal application was based?
i ANSWER.
A formal job task analysis is not the appropriate tool to estimate the resources necessary to l
support the review process for a license renewal application. The NRC's process for controlling l
the review of a license renewal application is contained in NRR Office Letter No. 805, " License i
Renewal Application Review Process." This office letter describes the process steps for the review of an application, the responsibilities of staff organizations involved in the review, and provides a method for identifying and implementing lessons leamed from the review of the first
- applications. Based on the experience gained from the review of the first applications, the Commission expects that the review process for subsequent renewal applications will be more L efficient. Our current estimate is that it will take approximately 22 direct FTE to review each
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I QUERTION 42.(A). 2 The NRC has established plant-specific schedules to ensure that reviews of license renewal L . applications are completed within 30 - 36 months of receipt of the application, including any hearings. The milestones in the schedules are as follows:
)
Week l Receive renewal application 0 l
~ Notice application tendered 2
! Complete acceptance and docketing 4 Public meeting and environmental impact statement (EIS) scoping 12 Staff complete technical requests for information (RAls) 20 Staff complete environmental RAls 24 ~(
l Applicant complete technical RAI responses 30 Applicant complete response to environmental RAls 32 Issue draft environmental statement (DES) for comment 44 l, Staff complete safety evaluation report (SER) and identify open items 46 Public meeting to discuss DES 48 l Complete DES comments 54
~ Applicant complete response to open items 62 l Staff issue supplemental SER & final environmental statement (FES) 78
' ACRS Recommendation to Commission on Application 90
' Commission decision on application 120 issue new license 120-146 c The milestone schedules and the detailed process described in Office Letter No. 805 were used to determine the resources needed to complete the review of a renewal application. The model developed describes the tasks and corresponding milestones and evaluates the functions and l
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QUESTION 42.(A). 3 expertise necessary to complete the review. Resources are currently being allocated to meet the milestone schedules.
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QUESTION 42. (B) What contractor services are anticipated to be needed for license renewal reviews that cannot be perfonned by the 25 FTEs?
ANSWER.
Contractor services are used to prtmde specialized technical expertise not available on the staff. For the review of license renewal applications, contractor services are used primarily for the resolution of generic issues and for performing environmental assessments. Only a small portion of the $8.9 million increase in NRC's contract assistance funding is allocated to the review of license renewal applications (approximately $110K per application per year).
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QUESTION 42. (C) Given that there are to be 25 FTEs and contractor support assigned io each license renewal application, why will it take the staff 18 months to issue the Safety Evaluation Report?
ANSWER.
Upon receipt of a license renewal application, the NRC (1) reviews the technicalinformation contained in the application for compliance with the applicable regu!ations, (2) assesses potential environmental impacts in accordance with the requirements of the National Environmental Policy Act, (3) performs verification inspections of selected site specific programs and activities credited for license renewal, and (4) participates in adjudicatory hearing activities, if a hearing is requested. Experience has shown that initially submitted applications do not always contain all the information necessary for the NRC to make the findings required for issuance of a license, requiring additional time for the NRC to request additional information from the applicant, the applicant to prepare and submit the information, and the staff to review the submitted information. The schedule also reflects the necessary public participation in the environmental review which occurs dunng the same period. The NRC's schedule integrates these activities, conducting them in parallel to the maximum extent possible to ensure an expeditious review.
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l l QUESTION 43.(A). Despite many revisions to the NRC's enforcement program since its l
l inception in 1980, the industry and the Union of Concerned Scientists ;
I continue to criticize the NHC for its failure to correct the many problems l l
that have been identified. These problems include failing to properly I focus NRC and licensee resources on issues most important to safe plant operation; aggregating violations to support a higher violation level or civil penalty; extrapolating programmatic deficiencies from a given event or violation; and basing enforcement decisions en subjective, undefined terms such as " regulatory concern" and " regulatory significance." We understand that both the industry and the Union of Concerned Scientists recently have suggested that the NRC make significant revisions to eliminate these deficiencies. !
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What steps will the NRC take to ensure that each enforcement action is directly related to safety significance of the noncompliance?
ANSWER.
Noncompliances vary in their degree of safety, safeguards, or environmental significance; for that reason, the enforcement policy provides a graduated system of sanctions, varied according to the technical significance (i.e., actual and potential consequences) and the regulatory significance. This graduated system appears both in the range of severity levels assigned to different violations, and in the availability of different enforcement actions (e.g., Non-Cited Violations (NCVs), Notices of Violation (NOVs), civil penalties, and orders). Maintaining a
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QUESTION 431A). 2 safety focus was addressed in the 1995 enforcement program reassessment (NUREG-1525) and the recent 1998 enforcement program review (NUREG-1622).
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Modifications have been made to the enforcement policy to assist the staff and industry in maintaining a safety focus. For example,Section IV of the enforcement policy provides that minor violations not be the subject of formal enforcement action and not normally be documented in inspection reports. When sufficient information regarding a licensee's corrective
- , actions exists on the docket, the NRC may waive a licensee's response to an NOV. Civil penalties are no longer proposed for repetitive Severity Level IV violations, unless the repetitive violation is such that it warrants classifying the matter as a Severity Level Ill violation. The enforcement policy continues to provide that Licensee-identified and corrected Severity Level IV violations be dispositioned as NCVs, provided they meet the rert aining criteria for discretion in the policy. I in a Staff Requirements Memorandum (SRM) dated August 25,1997, the Commission outlined a general approach to safety and compliance. The discussion stated
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As commonly understood, safety means freedom from exposure to danger, or i
protection from harm. In a practical sense, an activity is deemed to be safe if the perceived risks are judged to be acceptable. The Atomic Energy Act of 1954, as amended, establishes " adequate protection" as tha stancerd of safety on which NRC regulation is based. In the context of NRC regulation, safety means avoiding undue risk or, stated another way, providing reasonable assurance of
\
QUESTION 43.(A). 3
- i. adequate protection for the public in connection with the use of source, byproduct and special nuclear materials.
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While there is agreement on the need to maintain a sitfety focus, disagreements may occur as f'
l to the safety significance of any particular violation. 'n the view of the NRC, a violation need not always result in an actual impact to the public or to an employee (e.g., a release of radioactive material to the public or an employee overexposure to radiation) before it is considered .
I significant. In resolving differ *ag views on safety significance, considerations should include all l
aspects of safety significance as applied to enforcement, including the actual safety l-consequence, the potential safety consequence, and the regulatory significance. Violations may be indicative of performance that could have consequence or potential consequences if not corrected, and therefore have regulatory significance. These include willful violations, false i statements, programmatic issues, repetitive violations, and cases where it is fortuitous that a more significant violation did not occur with actual consequences.
As noted in the Commission-approved discussion on safety and compliance in a August 1997 1 l
SRM on the subject:
l Safety is the fundamental regulatory objective, and compliance with NRC requirements plays a fundamental role in giving the NRC confidence that safety is being maintained. NRC requirements, including technical specifications, other
[ license conditions, orders, and regulations, have been designed to ensure
- adequate protection-which corresponds to "no undue risk to public health and ;
{ safety"-through acceptable design, construction, operation, maintenance, I i l
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QUESTION 43.(A). 4 modification, and quality assurance measures. In the context of risk-informed regulation, compliance plays a very important role in ensuring that key assumptions used in underlying risk and engineering analyses remain valid.
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repetitive, willful, programmatic, etc.), or because of a combination of these issues. In addition, the NHC is currently working on clarifying the term regulatory significance and evaluating whether it should be included as a component of safety significance.
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ANSWER.
Future efforts to improve the enforcement program include: (1) furthe meetings with i
stakeholders to obtain additional perspectives on enforcement and te consider the need for changes to the enforcement program, with the short-term focus on non-escalated enforcement, as described in response to Question 17 and longer term focus on escalated enforcement, including consideration of a forth coming NEl proposal, (2) developing additional guidance on I thresholds for low-level and minor violations, (3) developing additional guidance to consider risk in enforcement decisions and the use of regulatory significance for significant enforcement
( actions, (4) conducting additional training describing the guidance for these changes and i
Initiatives for staff involved in inspection and enforcement activities, (5) auditing the consistency of issuance of low-level violations, and (6) developing closer coordination between inspection and enforcement activities.
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OUESTION 43.(C). What actions will the NRC take to eliminate enforcement actions based t on subjective judgements?
ANSWER. ;
As stated before, the NRC will continue to develop additional guidance to consider risk in enforcement decisions and the use of regulatory significance for significant enforcement actions. Additional training describing the guidance for these changes will be conducted for the staff. While there is a commitment to minimize subjectivity and increase objectivity and predictability, the enforcement process by its nature and the breadth of NRC licensed activities requires the exercise of judgement and discretion. Thus, all subjectivity cannot realistically be eliminated.
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OUESTION 43fD). What action will the NRC take to incorporate into its enforcement ;
program progressive enforcement approaches used by other federal l
agencies with public health and safety responsibilities?
. ANSWER.
l The NRC reviewed other enforcement programs and policies as part of its 1995 program l assessment. Most recently, the NRC met with Federal Aviation Administration (FAA) senior l l
representatives on July 27,1998, to discuss its enforcement programs and approaches suggested by industry. Like the NRC's enforcement program, many of the FAA programs also l consider issues of identification, corrective action, and whether violations were committed willfully. While there are similarities in the approaches, differences in the regulated programs may not make some of the approaches appropriate for the NRC. i Although industry s0ggested that the NRC consider enforcement approaches employed by the Occupational Safety and Health Administration (OSHA), the NRC has not looked into the OSHA program because of the significant differences in the NRC and OSHA regulatory approach.
l Specifically, OSHA does not have licensees and OSHA does not generally perform routine, periodic inspections of entities that are subject to their regulations. We have also discussed enforcement approaches with the Enviconmental Protection Agency (EPA) and the Department of Transportation. NRC will continue to evaluate other enforcement approaches as part of
! broader potential changes being considered.
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l QUESTION 44.(A). In light of the significant strides the industry has made in achieving l
l sustained safe plant performance over the past several decades, we are j- concemed about the NRC's enforcement statistics for 1997. For example, both NRC and industry indicators confirm a continuing trend of safe pedormance and improving reliability. Yet the NRC issued 50%
more violations to the industry between 1996 and 1997; and the NRC issued 92% more violations since 1990. Of significant concern is that most of these violations (1427 of 150_.7) were for noncompliances determined by the NRC to be of low sufety significance. Since 1995, the NRC has also issued 66% more non-cited violations and deviations, i.e., '
enforcement action for matters that, by definition, are predominantly administrative. The NRC's enforcement approach seems to require l
licensees M apply considerable resources to processing low safety l significant enforcement actions, thereby diverting NRC and licensee attention from potentially more safety significant issues.
What actions will the NRC take to ensure that its enforcement process recognizes sustained good performance by the industry?
ANSWER.
The NRC's enforcement program currently recognizes good performance by the industry in j both its escalated and non-escalated programs. If a licensee displays good pedormance by l
identifying and correcting non-repetitive low-level violations, the NRC dispositions the issues as l
Non-Cited Violations (NCVs): an administrative tool to document and track the issue that does i
l QUESTION 44.(A). 2 not require a licensee response. In the escalated program, if a iicensee has not had escalated enforcement action within a 2-year or 2-inspection period (whichever is longer), the decision on whether or not a civil penalty will be proposed is based solely on whether the licensee's corrective actions were prompt and comprehensive. In addition, notwithstanding the normal l
enforcement process, the enforcement policy provides the necessary flexibility to recognize !
l good overall sustained performance by reducing or refraining from issuance of a civil penalty or a Notice of Violation through the exercise of enforcement discretion (i.e., Section Vll.B.3,
" Violations involving Old Design issues," and Section Vil.B.6," Violations involving Special Circumstances"). .
Enforcement is an integral part of the NRC and NRC stakeholder effort to develop a licensee !
performance assessment process that makes increased use of objective performance indicators. As this process is developed and implemented, the en'orcement program will be modified to incorporate the new methodologies and ensure that both NRC and licensee ;
l resources are directed to the more safety significant issues.
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QUESTION 44 (B). What action will the NRC take to ensure that its enforcement action does not force the licensee and the NRC to focus resources on nonsafety .
significant matters.
- ANSWER.
l 1 As stated before, efforts are underway to reinforce existing guidance and policy to (1) give u credit for licensee actions in both identifying and correcting violations in deciding whether to cite a low-level violation, (2) not require a written response when low-level violations are issued and corrective actions are sufficiently addressed in writing elsewhere on the docket, e.g., in a Licensee Event Report, (3) provide more consistent treatment for multiple violations with common root causes, and (4) clarify guidance for violations identified as a result of licensees' corrective actions. As a result of ongoing efforts, such as the review of the NRC enforcement program lssued in April 1998 (NUREG-1622, "NRC Enforcement Policy Review"), the NRC recognizes that improvements can and must be made in its efforts to focus on safety and on L consistency in its treatment of violations, especially the thresholds for low-level violations.
Special enforcement review panels were established to review all potential Maintenance Rule .
I' and 10 CFR 50.59 escalated and non-escalated enforcement actions for consistency of approach and determination of safety significance. In addition, future efforts include: (1) further meetings with stakeholders to obtain additional perspectives on enforcement and to
. consider the need for changes to the enforcement program, (2) developing additional guidance l
on thresholds for low-level and minor violations, and (3) developing additional guidance to
. consider risk in enforcement decisions and the use of regulatory significance for significant 4
enforcement actions.
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QUESTION 44fC). Please provide a schedule for completion of all actions cited above to revise the NRC's enforcement program.
ANSWER: l l
- The NRC issued an Enforcement Guidance Memorandum (EGM 98-006) on July 27,1998, that reinforced existing guidance and policy on not citing licensee-identified and corrected non-l l repetitive violatons, wamng licensee's responses when corrective action information is already i on the docket, and treatment of multiple violations and violations identified as a result of a l 1
licensee's corrective actions (items (1) - (4) in the previous question). The NRC held a public j meeting with stakeholders on September 3,1998, to solicit input on possible enforcement policy revisions. A revision of non-escalated enforcement policy is expected to be presented to the Commission in October for their approval. The NRC staff is expected to develop additional l-guidance on regulatory significence by late Fall of this year and thresholds for low-level and minor violations at the end of this year. The NRC staff plans on developing risk informed examples for inclusion in the supplements of the enforcement policy in the Spring of 1999. The l NRC staff also expects a proposal from NEl for changes in escalated enforcement policy and I
f will review that proposal and report to the Commission in the Spring of 1999.
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l OUESTION 45fA). The NRC has stated that it takes enforcement action to " send a !
message" regarding the " regulatory significance" of a violation as well as the agency's underlying " regulatory concerns." Neither " regulatory i significance" nor " regulatory concem" is a defined term, and therefore l 1
both are extremely subjective. Particularly given the nature of j i
enforcement action, using these terms as the basis for enforcement I action would seem inappropriate.
How does the NRC distinguish between regulatory significance and regulatory concem as a basis for taking enforcement action?
ANSWER.
Noncompliances have varying degrees of safety, safeguards, or environmental significance. l The enforcement policy provides a graduated system of sanctions, varied according to the technical significance (i.e., actual and potential consequences) and the regulatory significance.
Regulatory significance, while not " defined," has traditionally been understood to involve issues that have the potential for impact on safety, such as programmatic failures, repetitive violations, I willful violations, reporting failures, licensees' refusal to comply, and management involvement.
The NRC reviews each case on its own merits to ensure the severity of the violation is characterized at the level best suited to the significance of the particular violation.
When an issue is evaluated and categorized at the Severity Level til level, by definition it is, "cause for significant regulatory concern."' As a regulator mandated to ensure that the civilian
'Section IV of the Enforcement Policy, NUREG-1600, Rev.1
7 .. . _.._ ... _ ._.__ _ _ _
QUESTION 45.fA). 2 uses of nuclear materials in the United States are carried out with adequate protection of public health and safety, we are concemed when a system designed to perform ,a certain safety function would fail to operate under certain circumstarices if called upon to work. Defense in depth and acceptable margins of safety are at the foundation of the NRC regulatory process.
We are also concemed when a worker falsifies a surveillance test because our regulatory program is based on licensees and their contractors and employees acting with integrity and communicating accurately. At an individual level, instances of willful misconduct reduce the NRC's confidence'that if these individuals were subsequently involved in licensed activities, the
- - activities would be conducted in a manner that adequately protects the public health and safety.
l l At a higher level, instances of willful misconduct may also raise questions about the potential pervasiveness of the problem and the licensee's ability to establish a safety-conscious work environment. ;
I :
The regulation of nuclear activities does not always lend itself to a mechanistic treatment.
- Judgment and discretion must be exercised in determining the severity levels of violations and l
the appropriate sanction. As such, to ensure consistency, technical accuracy, and balanced views, issues that may be categorized at Severity Level !Il are addressed in enforcement review l panels with routine participation from regional offices, the Office of Enforcement, and the Office i
l- of Nuclear Reactor Regulation. Special scrutiny is given to those cases that include issues that have regulatory significance (e.g., programmatic failures, willful violations, repetitive violations, etc.).
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l QUESTION 45.(B). What actions will the NRC to eliminate undefined terms such as l
" regulatory concem" or " regulatory significance" from its enforcement j process?
ANSWER.
The Commission recently requested that the staff develop a definition and explanation of
" regulatory concem" and " regulatory significance" for possible inclusion in the enforcement policy. The staff will also review the advantages and disadvantages of the current inclusion of
" regulatory significance" as a component of safety significance. The NRC staff is expected to report back to the Commission in the late Fall.
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OUESTION 451C). What is the NRC's criteria for " sending a message" through the !
enforcement process?
i ANSWER. ,
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! i l The NRC does not have any defined criteria for " sending a message" through the enforcement I 1
l
. process. Instead, the enforcement policy is structured to provide a graduated approach to l noncompliance.s and provides examples of noncompliances at various levels of significance to j- aid the staff in developing the appropriate enforcement sanction for a given set of facts and l
circumstances. However, the regulation of nuclear activities in many cases does not lend itself to a mechanistic treatment. Accordingly, the NRC's enforcement process provides that Judgement and discretion be exercised in determining the severity levels of violatioris and the
- appropriate sanction as provided in Section Vil, to " ensure that the resulting enforcement action i
appropriately reflects the level of NRC concem regarding the violation at issue and conveys the appropriate message to the licensee."
Enforcement actions are legal sanctions based on noncompliances with legal requirements.
The byproduct of a cohesive enforcement action is an effective communication tool.
Enforcement action transmittal letters communicate witn a range of audiences, some more
' familiar than others with the inspection findings. While the primary audience is the involved i a
licensee, secondary audiences may include site management, corporate officials not directly involved in nuclear activities, other licensees with similar activities, NRC staff, the media, and interested members of the public. Enforcement actions can serve a valuable purpose in 1
. making sure that licensees understand the importance of compliance. Incentives are provided g to identify and correct violations. There is also a deterrent purpose. As such, enforcement i
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l OUESTION 45.(C)- 2 actions should be constructed to convey the regulatory message derived from applying the .
enforcementpolicyto the circumstances of the particular case. The NRC has incouraged, for instance, including a description of the licensee's corrective action, to give credit where good action has been taken. By emphasizing those aspects of licensee performance that the NRC considers important, other licensees gain ideas on how to improve their performance in similar areas. In addition, the letters may address the need to avoid violations, the need to be responsive to opportunities to identify violations, the need to reverse past poor performance ;
and sustain good performance, the significance of multiple violations, the impact of violations of extended duration, and the need to maintain high standards of integrity.
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QUESTION 46. The NRC states that its Enforcement Policy encourages licensee to self-1 identify and correct noncompliances. Yet the NRC may impose a 100%
penalty if eitherthe licensee does not identify or satisfactorily correct a noncompliance. The Enforcement policy also provides for the imposition of a 200% penalty if the licensee neither identifies nor corrects the noncompliance. This approach appears to be very punitive.
J l
How does withholding extraordinary punishment ensure licensee self identification and correction of noncompliances i
ANSWER.
I~
The current civil penalty assessment process is not limited to the consideration of two factors, identification and corrective action. Instead, the assessment process considers fourdecisional I points, involving past performance, identification, corrective action, and those issues that may warrant exercising enforcement discretion.
l The first decisional point addresses whether the violation is the first escalated enforcement action that the licensee has had during the past 2 years or past two inspections. If the licensee has not had any past escalated actions, the assessment process then addresses the i L promptness and comprehensiveness of the licensee's corrective actions and then whether there are special circumstances that may warrant discretion. In this scenario, the issue of l t identification is not considered. In other words, even if the NRC identified the violation, this l
strategy is designed to provide flexibility for licensees who have traditionally been good
, performers. This strategy also places a premium on corrective action.
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! OUESTION 46. 2 l On the other hand, I a licensee has had past escalated actions, the process addresses whether l the licensee should be given credit for actions related to identification and corrective actions 1
l and then whether there are special circumstances that may warrant discretion. In this scenario, l
l the staff believes a base civil penalty' is appropriate if the licensee only warrants credit for l
I either self-identification or corrective action because the process reflects that the licensee has had a history of escalated action. However, even if a licensee has had a history of past actions, under the assessment process, a licensee would not normally be subject to a civil penalty if it identified and corrected the current vlotation. As stated before, this strategy gives more weight to the licensee's current performance and provides incentives to identify and correct violations.
In addition to the civil penalty assessment process, the Enforcement Policy provides incentives to identify and correct violations by exercising discretion and reducing or refraining from issuing unctions for (1) violations identified during extended outages, (2) violations involving old design issue 0, (3) violations identified as a result of corrective actions being taken in response to provicas violations, (4) violations involving certain discrimination issues where the licensee, without govemment intervention, provides a remedy to the person discriminated against and takes comprehensive corrective action.
The purpose of the NRC enforcement program is not to penalize licensees or maximize penalties, but to emphasize the need for licensees to prevent violations and, when they occur, t
'It should be noted that most enforcement actions for reactor licensees include Severity Level ll1 violations or problems and that the base civil penalty at this level is $55,000; half the amount allowed by statute. The assessment process is not designed to maximize penalties.
l Under the Atomic Energy Act, the NRC has authority to issue penalties of $110,000 per violation per day.
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OUESTION 46. 3 to identify and correct them before events occur with potential impact on the public. Compared i to the numbers of licensee personnel, NRC has very few inspectors available to confirm complian se with regulations. Licensee employees are in the best position to identify l noncompli';.ces based not only on their numbers, but also by their thorough knowledge of the facilities. Th s capability can be rewarded by avoidance of Notices of Violation or complete i l
mitigation of civil penalties when licensee self-identification reveals violations and the violations are corrected and reasonable actions are taken to prevent recurrence.
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CUESTION 47. The NRC states that it rewards licensees through the enforcement process "by avoidance of Notices of Violation or complete mitigation of l
Civil penalties when licensee self identification reveals violations, the violations are corrected and reasonable actions are taken to prevent recurrence." Yet, in response to a question by Congretaman Schaefer, the NRC indicates that 40% of the level four violations issued in 1997 were self-identified.
1 l If these violations also were satisfactorily corrected, why was enforcement action nevertheless taken?
I ANSWER.
l As a point of clarification, during 1997, approximately 40% of Severity Level IV violations were not formally cited through mitigation discretion. A Non-Cited Violation documents a l
noncompliance in an inspection report for tracking purposes, but does not result in a formal enforcement action or require a licensee response. It is recognition that while no violation is l acceptable, the licensee took positive action by identifying and correcting the violation.
Avoidance of formal enforcement action with the burden of a response may provide incentives l to identify and correct violations without NRC involvement.
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i QUESTION 48. The NRC takes enforcement action for low safety significant violations because "in different circumstances the occurrence of the same or a similar violation may be more significant because of the coincidence of
!r other factors." This seems to provide the NRC staff with an unlimited opportunity to conjure up scenarios that may be extremely far afield from !
i the original violation.
l' l
Please list all violations where this has been the basis for the imposition
- l. of enforcement action in 1997-1998.
I l- ' ANSWER.
l The NRC does not maintain a list where this particular factor has been the basis for enforcement actions. Development of such a historical list would require manual revie"/ of inspection reports and would involve significant resource expenditures. The underlying basis of allenforcement actions is the failure to comply with legally binding regulatory requirements. l l
The manner in which a violation is dispositioned (i.e., escalated or non-escalated action, or !
i Non-Cited Violation) is based on an assessment of its safety significance. Safety significance, j as used in the enforcement program includes consideration of the actual consequence, the potential consequence, as well as other factors that may represent regulatory significance,
'e.g., repetition, willfulness, pentasiveness. Severity Level IV violations by definition are less
' serious than Severity Level lil violations ("cause for significant regulatory concem"), but are of more than minor concem; i.e., if left uncorrected, they could lead to a more serious concem. !
Evaluating and categorizing the severity of violations requires judgment. The key to a fair
- assessment is that the facts be weighed and reasonable scenarios be considered.
7 _.,-
QUESTION 48. 2 For example, the failure to post a high radiation area that has changing dose rates (such as a fuel transfer canal) may not result in an actual consequence on a given occasion because of I
the position of the fuel. However, it is reasonable to conclude that the same failure to post the high radiation area could just as easily result in an overexposure on another occasion due to the new position of the fuel. The failure to perform a post-maintenance test on a pump does not result in an actual consequence when the pump was properly serviced and restored.
However, it is reasonable to conclude that the same failure on another pump could result in an l actual consequence, such as the pump failing to operate when called upon to perform its safety function, had the pump been inoperable when returned to service.
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j QUESTION 49. (A) We understand the NRC is engaged in an effort to review its assessment process, including the Senior Management Meeting (Watch List process) and the Systematic Assessment of Licensee Pedormance. We also understand that the vote sheets on the
_ staff's request to issue the revised assessment process for public comment suggest that the Commission had significant concems t.
about the revised process.
- When do you expect the evaluation of the assessment process to i
be completed? l ANSWER.-
i l
By January 1,1999, the NRC staff will have comp!:td the evaluation of the assessment process and will have made recommendationr to the Commiasion for improvements to the l i
process. - Resolution of public, industry, NRG staff and Commission comments play an integral !
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part in the recommendations for improvem int. The public comn ent period for improveme6 to the performance assessment process will and in October 1998.
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OUESTION 49. (B) Given that the industry has suggested an attemative assessment approach, is the NRC working with the industry to address their -
1 1
concems? i ANSWER.
Yes, the NRC is working with the industry to develop improvements to the assessment process. ;
Several meetings have been held with representatives of the Nuclear Energy Institute to review the NEl proposal for an alternative assessment approach. Further, the NRC held a public workshop in September 1998, during which the NRC staff worked with members of the industry l and public to develop improvements to the assessment and regulatory oversight processes.
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[ Inhofe/NRR 09/19/98 l
QUESTION 50. A primary concern expressed about the NRC's current assessment process is the lack of definition of what constitutes acceptable performance. Adding to this concern are the assessment's subjectivity, lack of objective indicators, lack,of safety focus, and over-emphasis on enforcement actions.
l (A) How does the NRC's assessment process address each of these concerns?
ANSWER. l The NRC is currently working with industry, the public, and other stakeholders to develop a revised assessment process. A four-day public workshop is scheduled for September 1998 to expedite development of the improvements and to seek stakeholder input. The proposed impmvements will be provided to the Commission in early January 1999 for approval.
The assessment process improvements will be directed at increasing the use of objective, risk-informed (where possible) performance indicators in the NRC assessment process. This will decrease subjectivity, add objective indicators, and increase safety focus. This will also reduce the emphasis on enforcement actions. The goalis to reduce the influence of enforcement j actions on the assessment process such that enforcement actions would override performance i
indicator results in only very limited circumstances, i
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I-QUESTION 50. (B) Does the NRC's process eliminate the " Watch List' as it currently exists?
l ANSWER.
L . .
l The effectiveness of the NRC ' Watch List" is being evaluated. It is possible that the proposalin early January 1999 will include a recommendation to either modify or eliminate the " Watch List,"
- l. but the Commission has not yet made this decision.
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QUESTION 50. (C) Will the revised assessment process change the NRC's inspection and enforcement processes to improve the safety focus of each of-these oversight activities? If so, please describe the contemplated changes.
ANSWE_R.
I Review efforts ars underway to identify improvements to the inspection and enforcement -
{
processes that will increase their safety focus. Changes to the NRC's inspection and enforcement process will be coordinated with changes to the assessment process to improve q p - the safety focus and integration of all three processes. Changes being contemplated include developing and implementing a risk-informed baseline inspection program and improving the safety focus of NRC violations. (See question 27 for an additional discussion on the possible l - changes to the NRC programs and procedures.)
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i OUESTION 51. We understand that the NRC's initial proposal for its revised assessment process included review of licensee management effectiveness. Among
' the items cited for review were " organizational environment, shared l perception of the organization including the traditions, values, customs, l practices and socialization processes." Although the review of these features is not explicitly included in the revised assessment approved for L public comment, SECY 98-045 states that the staff intends to continue to l
l assess ways to evaluate management effectiveness.
4 l
What NRC regulation requires it to review licensee management l
l effectiveness?
ANSWEE.
i The NRC's regulations do not explicitly require the evaluation of plant management.
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After several recent reviews of this area, the NRC has decided that it will continue its practice of i
E conducting performance-based inspections by observing the conduct of operations, the material {
l condition of the plant, the_ performance of licensee personnel, the quality of engineering work, and the licensee's performance in problem identification and resolution. The NRC will continue
!~ . to examine operational events to identify root causes, such as human error, design deficiencies, and administrative controls. The process for assessing plant performance will continue to be based on inspection findings, enforcement' actions, operational events, and performance indicators. It has been and will remain the NRC's practice to conduct performance-based inspections in all areas of fac,lity operation and design and, on the basis of the inspection
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i QUESTION 51. -
2-results, to draw conclusions about the effectiveness of the licensee's management to the extent that it relates to safe operation of the facility.
t I
in its May 30,1997, report entitled,
- Nuclear Regulation: Preventing Problem Plants Requires -!
l More Effective NRC Action," the General Accounting Office (GAO) stated that NRC does not i i
[ have an effective process for ensuring that licensees maintain competent management in their
- nuclear plants, in addition, the GAO recommended that the assessment of management's
)
. competency and performance be a mandatory component of NRC's inspection process.
In response to the GAO report and as part of the NRC's effort to improve the Senior Management Meeting process, the staff investigated the development of management l
performance assessment tools for improving the current plant performance evaluation methodology as stated in SECY 98-045. This effort included two 1-week-long workshops in August 1997 and December 1997 involving NRC staff and experts from the research community. While the consensus of the workshop participants was that management and organizational factors do influence human performance and hardware operation, it was also I i
decided that a management assessment based on the current inspection program data would i l
not likely result in a leading indicator of plant performance or in a comprehensive and direct assessment of licensee management performance.
On March 26,1998, the staff proposed to the Commission in SECY-98-059, five options for i i
assessing the performance and competency of licensee management and delineated associated policy issues for the Commission's consideration and comment. This paper i
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OUESTION 51. followed up on the views expressed in the staff's earlier paper, SECY-98-045. The options were summarized as follows:
- 1. Continue to conduct performance-based inspections in all areas of facility operation and design; however, do not attempt to infer or articulate conclusions regarding the i
performance or competency of licensee management.
- 2. Infer licensee management performance from the results of the current performance-based inspection program on overall plant performance. Strengthen guidance to improve the quality and consistency of the management performance assessment.
r 3. Assess the performance of licensee management through targeted operational 1
performance inspections using specific inspection procedures, trained staff, and contractors.
- 4. Assess the performance of licensee management by evaluating and documenting management performance attributes as part of the routine inspection program.
Implement the necessary regulations. Revise the inspection, staff training, and qualification programs accordingly, l
- 5. Assess the competency of licensee management by evaluating management competency attributes using specific inspection procedures, trained staff, and
L I QUESTION 51.
I contractors. Implement the necessary regulations. Revise the inspection, staff training,
)
and qualification programs accordingly.
l l ,After considering the five options contained in SECY-98-059, the Commission approved only l
l those elements of Option 2 associated with the current staff practice of inferring licensee l
L management performance from performance-based inspections, routine assessmentc, and L event followup. The Commission also determined that efforts to develop leading indicators of performance should not sue licensee management performance or competency as an input, i
l and that the inspection program should focus on performance-based inspection findings. In I
addition, the Commission approved the elimination of any Fiscal Year (FY) 1998 resource expenditures specifically directed toward developing a systematic method of assessing management pc formance and disapproved any use of FY 1999 or FY 2000 resources for these purposes.
! As a result, the NRC staff is currently implementing the inspection program as outlined, in part, j- by Option 2, which requires no additional inspection effort or resources above those required l
for implementing the original inspection program. The NRC staff will continue its practice of l
L l-conducting performance-based inspections by observing the conduct of operations, the material condition ct the plant, the performance of licensee personnel, the quality of engineering work, and the licensee's performance in problem identification and resolution. The NRC will continue to examine operational events to identify root causes, such as human error, design deficiencies, and administrative controls. The process for assessing plant performance will continue to be 1
based on inspection findings, enforcement actions, operational events, and performance indicators. It has been and will remain the NRC's practice to conduct performance-based I
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l QUESTION 51. inspections in all areas of facility operation and design and, on the basis of the inspection l results, to draw conclusions about the effectiveness of the licensee's management to the extent I that it relates to safe operation of the facility.
i Finally, the NRC staff is currently exploring improvements to the process for assessing plant performance. This effort is known as the integrated review of the assessment process (IRAP).
A trial application of this process was conducted in the spring of 1998 and utilized an updated version of the NRC Plant Pedormance Template, which censisted of five performance categories (see response to GAO Recommendation 2, dated January 28,1998). However, the l
assessment area regarding management effectiveness was not included on the basis of the Commission's approval of only those elements of Option 2 associated with the current staff practice of inferring licensee management pedormance. The staff will centinue using the NRC Plant Pedormance Template for the evaluation of the remaining five performance categories and the results will be discussed during public workshops scheduled for the fall of 1998.
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QUESTION 52. In addition, fne NRC stated in response to Congressman Schaefer's
- questions that the staff has identified " regulatory excellence strategies" to -
l Improve the NRC's regulatory program.
L (A) Please list each regulation eliminated or modified under these programs since 1990.
ANSWER.
I
' Prior to 1992 the NRC did not categorize rulemakings as to whether they might be safety l
enhancements or promulgated to provide additional regulatory flexibility or burden relief.
However, what follows is a list of rulemakings specifically focused on providing power reactor
. licensees with additional regulatory flexibility and burden relief. Over that same period,1992
! through 1997, the NRC promulgated approximately 50 rulemakings affecting nuclear power reactor licensees. Hence, as can be seen from the list below, about half of NRC's reactor rulemaking effort is directed at regulatory flexibility and burden relief.
I L BURDEN REDUCTION / REGULATORY REFORM /ADDED FLEXIBILITY RULEMAKINGS PUBLISHED FINAL IN:
1EEE l
l Frequency of Radiological Effluent Reports, Part 50.36a l.
l Frequency of FSAR Updates, Part 50.71
- Frequency of Design Change Reports, Part 50.59 4
l
- Use of Fuel with Zirconium Based Cladding, Part 50.44,50.46, Appendix K i
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i QUESTION 52.(A). 2 ,
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Partial Withdrawal of NRC Information Collection Requirements for Fitness For Duty Programs, Part 26 Disposal of Waste Oil by incineration -
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Monitoring the Effectiveness of Maintenance at Nuclear Power Plants, Part 50.65a.3 l
M Changes to Random Testing Rates for Fitness to Duty Programs, Part 26 Renewal of Licenses and Requalification Requirements for Licensed Operators, Part 55 L M i
Ucense Renewal, Part 54 l
- License Renewal for NPPs; Scope of Environmental Effects, Part 51 Procurement of Commercial Grade items by Nuclear Power Plant Licensees, Part 21 j Performance-Based Primary Reactor Containment Leakage Testing for Water-Cooled l
Power Reactors, Part 50 ) (Part 50, Appendix J, Option B) l Change To Nuclear Power Reactor Security Requirements Associated With ;
F Containment Access Control, Part 73.55 (d)(8)
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! Physical Security Plan Format Changes, Parts 50,70 Incorporate TS Criteria, Part 50.36 l
( Radiation Protection Requirements; Amended Definitions and Criteria, Parts 19,20 M
Codes and Standards for Nuclear Power Plants (ASME Code,Section XI, Division 1, 3
Subsection IWE and Subsection lWL), Part 50 Constraint Level for Air Emissions of Radionuclides, Part 20 Decommissioning of Nuclear Power Reactors, Part 50 i
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- QUESTION 52.(AL 3 ,
l Reactor Site Criteria; including Seismic and Earthquake Engineering Criteria for Nuclear l
Power Plants, Parts 50,52,100
! 199Z !
! l Reduction in Nuclear Power Reactor Security Requirements Associated With Insider i Threat, Part 73.55 1
Design Certification for Advanced Boiling Water Reactor (ABWR) AND SYSTEM 80+, !
Part 52
! Radiological Criteria for License Termination of Nuclear Facilities, Parts 20,30,40,50, 51,70,72 t
l l 1998 !
! Revisian to Nuclear Power Reactor Decommissioning Financial Assurance Implementation Requirements,10 CFR 50.2 and 10 CFR 50.75 final rule sent to l
l the Federal Register for publication - week of Septen'ber 21,1998 i
Audit Frequency for Emergency Planning and Security, Part 50, PRM-50-59, PRM-50-60 final rule to be sent to the Federal Register for publication by l
t December 1998 l l
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QUESTION 52. (B) Please describe in detail the actions that have been taken as a result of the implementation of the " regulatory excellence strategies."
ANSWER. ;
l In April 1998, the NRC staff presented to the Commission a draft Excellence Plan describing in i
~ detail 13 strategies intended to improve the effectiveness and efficiency of tl.e NRC. The l Commission considered that, iniight of the changes in the NRC's planning, budgeting, and performance management process that have occurred as a result of the Govemment
)
Performance and Results Act of 1993, there was no need to maintain the Excellence Plan as a l
l separate formal agency document. The staff was directed to " sunset" this plan as a separate document, and activities from these strategies were integrated into the various operating plans of the organizational entities responsible for each strategy. l l
i Consistent with this approach and the description of the strategies in the draft Excellence Plan, significant activities are ongoing in the following areas:
1 Improvement of the reactor inspection program Improvement of the licensing support and regulatory oversight of operating reactors a Use of risk insights to enhance safety decision making, make more efficient use of NRC resources, and reduce burden on licensees i
e improvement of the medical regulatory program by modifying 10 CFR Part 35 to be l more risk informed and performance based l-
- .* Development of a process to identify candidate issues for improving the effectiveness r
4 , + - + c y . -..w am , <t
-, + - - - ,. , y, --
- _ 3 l
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r OUESTION S2fB). 2 l 1
and efficiency of rules, standards, regulatory guidance, and their application '
Increase in the effectiveness and efficiency of the regulatory process by expediting )
evaluation of industry initiatives and promoting more rapid adoption of consensus standards I
)
l Assessment of core capability needs by comparing requirements to current availability l Assessment of the effectiveness, including integration and data sharing, of information systems supporting NRC's major business areas a
improvement of the information systems supporting resource management (STARFIRE)
Improvement of information systems supporting document and records management (ADAMS) e improvement of information systems supporting the reactor inspection and licensing programs (Reactor Program System - RPS) l I
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r -er -
+Tay y1y 1 w ' '
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QUESTION 53. In response to a question by Congressman Schaefer, the NRC stated that there is an initiative to transition to more risk informed and, when appropriate, performance based regulatory approaches. V! hat has the agency done to apply risk informa' tion to add, remove or modify NRC regulations? Please list all regulations that have been added, removed or modified using this process since 19907 19947 L
ANSWER.
1 Since the first nuclear reactor PRAs, the NRC has increasingly used risk information to prioritize and resolve safety issues and has issued reactor-related regulations directly related to risk insights: requirements for reduction of risk from anticipated transients without scram events for light-water-cooled nuclear power plants (10 CFR 50.62, April 1989) and loss of alternating current power (10 CFR 50.63, June 1988). PRA played a key role in the System 80+ and ABWR designs, for which standard design certifications were issued (Appendices A and B to 10 CFR Part 52, May 1997). In 1995, the Commission issued a policy statement to declare the agency's commitment to increased use of PRA methods and insights in its reactor regulatory .
activiites. The NRC has taken a risk informed or performance-based approach in the following reactor-related rulemakings: promulgation of performance-based containment leakage testing requirements (10 CFR 50 Appendix J, option B, September 1995), requirements for monitoring L
the effectiveness of maintenance at nuclear power plants (10 CFR 50.65, July 1996), changes to the required frequency of FSAR updates (10 CFR 50.71(e)(4), August 1992), and technical specifications (10 CFR 50.36(c)(2)(ii)(D), July 1996).
l r
QUESTION 53. 2 l In the materials area, the NRC used risk information in 1990 to develop its policy on Below L i Regulatory Concem, whose purpose was to reduce burdens on industry while continuing to
. ' protect public health and safety. (This policy w,as later rescinded at the direction of Congress.)
l !
l l- The Commission is working to achieve an appropriate balance between deterministic and risk-informed regulations and between prescriptive and performance-based regulations. The overarching 10 CFR Part 20, " Standards for Protection against Radiation," contains quantitative .;
1 radiation protection standards that apply to all licensees. These standards establish limits on j
. i allowable doses (which can be converted to risk) and are implemented using a fundamentally performance-based approach. Thus, the central standards on which all nuclear materials l regulation is ultimately based are implemented at a first level using a risk-informed, performance-based regulatory approach. There have been several revisions to 10 CFR Part 20, which are risk informed and performance based. These include revision to the criteria for i the safe release from hospitals of individuals who have been administered radioactive material,'
revision of the monitoring criteria for declared pregnant workers and minors, and radiological criteria for decontamination and decommissioning.
Recent revisions to 10 CFR Parts 34," Licenses for Industrial Radiography and Radiation Safety Requirements for Industrial Radiographic Operations," r.nd 36, " Licenses and Radiation Safety Requirements for Irradiators," were developed using risk information. In addition the Commission, in revising 10 CFR Part 35," Medical Uses of Byproduct Material,"is restructuring it into a risk-informed, more performance-based regulation. Modifications to Part 39, " Licenses and Radiation Safety Requireme.nts for Well Logging," using risk information are currently l ongoing to address newer technology. For some uses of byproduct material, such as
QUESTION 53. 3 radiography, medmal uses, irradiators, and well logging, there is both a potential for and a history of overexposures. Therefore, while these regulations are risk-informed, there are situations that require prescriptive requirements for higher risk activities.
The following materials-related regulations were published between 1990 and 1993:
I!dt - Publication Date FRN Notice Use and Preparation of Radiopharmaceuticals For Diagnosis, Therapy, or Medical Research (Interim Rule) 8/23/90 55 FR 34513 Standards for Protection Against Radiation (Part 20) 5/21/91 56 FR 23360 Twenty-Four Hour Notification of
- Incidents For Non-Rectors 8/16/91 56 FR 40757 Licenses and Radiation Safety Requirements for Large Irradiators 2/09/93 58 FR 7715
l l
l QUESTION 53. 4 I
1 The following materials-related regulations have been published since 1994:
I!dg Publication Date FRN Notig Change to Part 40, Appendix A Uranium Tailings Regulation; Conforming NRC Requirements to EPA Standards 6/01/94 59 FR 28220 Use And Preparation of Radioparmaceuticals For Diagnosis Therapy, or Medical Research 12/02/94 59 FR 61767 Notification of incidents or Accidents, ;
10 CFR Part 72 12/*4/94 59 FR 64283 Preparation, Transfer for Commercial Distribution, and Use of Byproduct Material for Medical Use, Revised Final Rule, Part 32 1/04/95 60 FR 322 Administration of Radiopharmaceuticals to The Wrong Patient, Part 35 9/20/95 60 FR 48612 Criteria For Release of Patients Administered Byproduct Material 10 CFR Parts 20 and 35 1/29/97 62 FR 4120 I
e
- i QUESTION 53. 5 ItDa Publication Date FRN Notice Radiography and Radiation Safety Requirements For Radiography Operations,. Revision To 10 CFR Part 34 5/28/97 62 FR 28948 Radiological Criteria For Decommissioning 7/21/97 62 FR 39058 Medical Use of Carbon 14 For the Detection of Helicobacter Pylori-RM#432 12/2/97 62 FR 63634 Requirements for Shipping Packages Used to Transport Vitrified Wastes Containing l
PU [Part 71) 6/15/98 63 FR 32600 i Revision of Prototype Testing Requirements i l
for Watches Containing Tritium [Q3214] 6/17/98 63 FR 32969 i l
Minor corrections, clarifying changes and a l minor policy change [Part 20] 7/23/98 63 FR 39477 l l
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QUESTION 54. The NRC has stated that where requirements exist I
that have no safely benefit, are duplicative, l
unnecessary or unnecessarily burdensome, the l
l NRC can and should take action to modify or remove such requirements.
l 1 t
Will the NRC conduct a review of each of its regulations to identify those that should be eliminated based upon the above criteria? .
l ANSWER.
Over the past several years, the NRC has conducted a number of regulatory and burden reduction rulemakings in several areas including license renewal, decommissioning, and standard design certificatien. However, at present resources do not permit the NRC to i
undertake a systematic section-by-section assessment and possible revision of its portion of Title 10 of the Code of Federal Regulations. Nevertheless, the NRC remains committed to l
continuing efforts to modify or eliminate regulations to immove safety, reduce unnecessary i licensee burden and improve staff efficiency; for example, the ongoing revisions of 10 CFR I
' ~
50.59 and Part 35 and use of a revised source term. The Commission recently increased rulemaking resources available to the Office of Nucler.r Reactor Regulation (NRR) in the
. revised FY 1999 and the proposed FY 2000 budgets to increase burden reduction rulemakings.
Accordingly, the NRC intends to continue discussions and seek new opportunities to work with l- the industry on regulatory requirements which may need reevaluation as potential candidates for burden relief. I i
1 I
i l
QUESTION 55. ' The NRC recently issued the results of a survey on NRC safety culture l l
l l and climate. Some of the information obtained through that survey l- seems to indicate that the Commission and. senior management does not l L
have the full support of the staff in many of the important initiatives the l Commission has identified as top priorities. For example, only 32 percent l
of NRC employees believe that the agency's increased focus on rid
- l. Informed performance based regulation would improve the agency's
! regulatory effectiveness.
(A) What steps will the Commission take to obtain the support of NRC staff in order to carry out the Commission's stated intent to focus l
on risk informed performance based regulation?
l (B) What steps will the Commission take to address the fact that only l 25 percent of NRC employees believe that NRC senior l l
management is doing a good job in implementing programs and l
processes for improving regulatory effi diveness? !
(C) What steps will the Commission take to address the fact that only 24 percent of NRC employees believe that NRC senior l management is doing a good job in providing the tools and resources required for improving regulatory effectiveness?
i i
- j. (D) What steps will the Commission take to address the fact that only I
15 percent of NRC employees believe that NRC senior l
r - - ~ -
i OUESTION 55. 2 management is doing a good job of using employee input to improve regulatory effectiveness?
(E) What steps will the Commission take to address the fact that only 20 percent of NRC employees believe that NRC senior management is d' oing a good job " leading by example"in the area of regulatoryeffectiveness?
ANSWER.
We recognize that the support and endorsement of the NRC staff will be critical to success in implementation of more risk-informed and performance-based regulation. Our implementation plans in this regard will focus on clear and extensive communication between staff and management and solicitation of staff input on effective implementation strategies.
The results of the safety culture and climate survey were only recently presented to the staff by the inspector General's (IG's) contractor. The staff has been reviewing the individual results and the Executive Director for Operations has directed that a plan of action be formulated by 1
the end of this year. An interim review is scheduled for the end of October and Office Directors and Regional Administrators have been asked to provide input by the end of September.
l We are currently developing an internal communications plan which has as its primary goals, I
communicating the need for change and soliciting active interaction and participation by the staff in the change process.
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l QUESTION 55. 3 i Clearly, the broad implications of the survey are that NRC senior managers have a substantial challenge ahead to engage the staff in meaningful improvements to regulatory effectiveness.
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I OUESTION 56. The NRC has been subjected to significant criticism for the length of time it has taken to render decisions in licensing actions. The Louisiana Enrichment Services, L.P. (LES) application for a uranium enrichment facility license is a recent example of the breakdown of the NRC's licensing process. As a result of delay in the NRC licensing process, LES recently withdrew its license application after spending more than 30 .
million dollars to prepare and process it and participating in the licensing process for more than seven years. The NRC's failure to resolve LES's licensing issues in a timely manner occurred despite the fact that Congress had amended the Atomic Energy Act specifically to mandate the use of a streamlined, one stage licensing process for uranium enrichment facilities like the one proposed by LES. Given that there are now license renewal applications being submitted, we are very concerned that the same delays not be experienced by those applicants. l i
(A) What action will the NRC take to address the obvious need to reform its licensing process so that future license applicants will not be subjected to the same delays and lack of discipline experienced by LES?
ANSWER.
l l
The slow pace and delays that characterized the Louisiana Enerav Services (LES) proceeding 1
had many causes. In retrospect it is clear that in several ways the NRC could have done a more efficient job. The Commission through its July 28,1998, " Statement of Policy on Conduct l
l l
. _. _ _ . . . . _ _ , _ _ _ _ _ _ _ . . _ _ _ _ _ - . . _ _ . . _ . _ . . . . _ . _ _ . - .m OUESTION 56JA). 2 of Adjudicatory Proceedings" (enclosed) has taken initial action to ensure that the licensing process will function more effectively 1n future proceedings of this nature, and the Commission plans further steps, described later in this response. '
Nevertheless, the problems that delayed LES cannot all be attributed to " lack of discipline" or defects in the licensing process. The LES proceeding involved a first-of-a-kind application for a private enrichment facility, involving a technology which had not previously been licensed by the Commission. New standards for decision had to be established by the Commission at the outset, and it tumed out that these were not always easy to apply. During both the technical review and adjudicatory process, a number of novel legal and technical issues had to be addressed. Setting more precise standards and providing clearer guidance at the beginning would have reduced subsequent litigative controversy. These needs are now recognized, and the " lesson leamed" will be applied in future licensing actions.
With respect to the staff's technical review in the LES proceeding, it is now apparent that the application submitted by LES was not sufficient to enable the staff's review to be conducted on a timely basis. While the NRC staff could have addressed the application's shortcomings more aggressively, the applicant was not fully responsive to staf1 requests for additional information.
In regard to the LES adjudicatory process, several issues of first impression were brought to the Commission's attention but were not always resolved in a timely manner. In addition, in an attempt to ensure that allissues were thoroughly addressed, the Licensing Board allowed a large amount of information into the record, without insisting on adequate sponsorship by the parties to explain the significance of that information. This material then had to be dealt with by l
l
L QUESTION 56.fA). 3 !
L p the Board in reaching its decisions, which were in tum delayed. Even allowing for the
! complexity of the case, however, the Licensing Board's decisions in LES were excessively l
delayed,' as the Licensing Board itself has acknowledg'ed. Recent directives by the Chief Administrative Judge of the Atomic Safety and Licensing Board Panel that the Board's judges should not allow into evidence un-sponsored and unexplained documents should substantially i reduce this problem.
l .
l-i The Commission has attempted to address sources of potential delay in future licensing actions in several ways. The staff now prepares a detailed review schedule for significant licensing l actions such as license renewal, including the need to ersure the adequacy of the license l - application itself and for bringing emerging technical issues to NRC management attention and, l if necessary, to the Commission for guidance (both matters which also contributed to the delay i
of the LES proceeding). In addition, the Commission has moved to streamline the adjudicatory i L- process, while still ensuring that a fair hearing is conducted and a clear and complete record is created. The Commission has commenced a study of the entire hearing process and expects to receive staff recommendations by the end of this year on specific changes that would make NRC proceedings more efficient and timely. The Commission expects that this study will i specifically address the question of need for legislation to streamr.ne the hearing process as well as the viability of rulemaking, without legislation, to strear.une that process.
The NRC will seek legislation that supports the NRC's reading of section 189a of the Atomic Energy Act to reflect the reading that formal adjudications are not required. Further, with the i
! anticipated application from USEC for the AVLIS uranium enrichment process expected early l
l ._ _ _
-7.
l QUESTION 56.(A). 4
- next year, the NRC will consider seeking legislation that would modify section 193's inflexible approach to hearings. I 1
i l
in the interim, as noted above, the Commission has developed and issued a " Statement of Policy on Conduct of Adjudicatory Proceedings" which provides guidance to the licensing boards and parties to Commission proceedings on how the Commission expects its proceedings to be conducted. The Policy Statement encourages licensing boards to establish and adhere to case-specific schedules, to shorten filing and response times where practical, to manage discovery to avoid unnecessary delays in that stage of the adjudicatory process, to make sure that the parties comply with the Commission's regulations goveming the submission of admissible contentions, and to issue decisions in a timely manner. It also stresses the i I
obligations of all parties to comply with the Commission's Rules of Practice as well as their other obligations as participants, such as, with respect to submitting contentions and offering evidence. I The Policy Statement further makes it clear that the Commission itself will carefully and actively monitor ongoing licensing proceedings to ensure that they are conducted expeditiously and that the boards, staff and other parties receive prompt guidance on emerging technical, policy and j legal issues, as necessary. Consistent with the desire for expeditious processing of license
- applications, the Commission on August 19,1998 issued an order giving guidance and 1
recommending a schedule to the Licensing Board that will preside over the licensing renewal ,
1 L
proceeding for the Calvert Cliffs Nuclear Power Plant. On September 15,1998, the y Commission issued a similar order to govem the license renewal proceeding for Oconee l Nuclear Station, Units 1,2 and 3. Moreover, the Commission has published a proposed rule
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QUESTION 56.(A). 5 that would establish new, informal procedures for license transfer hearings that could ;
substantially reduce the time for such hearings.
Enclosure:
Statement of Policy
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Enclosure to Question 56.(A).
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- UNITED STATES OF AMERICA
- NUCLEAR REGUI.ATORY COMMISSION I COMMISSIONERS: .
~
.- . Shirley Ann Jackson, Chairman .
~
Nils J. Diaz Edward McGaffigan, Jr. -
STATEMENT OF POLICY ON
. CONDUCT OF ADJUDICATORY PROCEEDINGS -
i CLI-9812 l
- 1. INTRODUCTION
)
As part of broader efforts to improve the effectiveness of the agency's programs and
. i processes, the Commission has critically reassessed its practices and procedures for conducting adjudicatory proceedings, within the framework of its existing Rules of Practice in 10 C.F.R. Part 2, primarily Subpart G. With the potentialinstitution of a number of proceedings !
In the next'few years to consider applications to renew reactor operating licenses, to reflect restructuring in the electric utility industry, and to license waste storage facilities, such -
F
,, , assessment is particularly appropriattto ensure that agency proceedings are conducted efficiently and focus on issues germane to the proposed actions under consideration in its review, the Commission has considered its existing policies and rules goveming adjudicatory j proceedings, recent experience and criticism of agency proceedings, and innovative techniques used by our own hearing boards and pres'iding officers and by other tribunals. Altho. ugh current l
rules and policies provide means to achieve a prompt and fair resolution of proceedings, the
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Commission is directing its hearing boards and presiding officers to employ certain men'sures ,
described in this policy statement to ensure the efficient conduct of proceedings.
The Commissfon continues to endorse the guidance in its current policy, issued in 1981, l on the' conduct of adjudicatory proceedings. Statement of Policy on~ Conduct of Licensin'g
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. Enclosure to 5 Question 56.(A).
. .. 2
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Proceedings, CLI-81-8,13 NRC 452 (May 20,1981); 46 Fed. Reg. 28,533 (May 27,1981). The
- 1981 policy statement provided guidance to the Atomic Safety and Licensing Boards (licensing boa'rds) on the use of tools, such as the establishment and adherence to reasonable-schedules 4 and discovery management, intended to reduce the time for completing licensing proceedings j
. i while ensuring that hearings were fair and produced adequate records. Now, as then, the l
Commission's objectives are to provide a fair hearing process, to avoid unnecessary delays in the NRC's review and hearing processes, and to produce an informed adjudicatory recor'd that supports agency decision making on matters related to the NRC's responsibilities for protecting public health and safety, the' common defense and security, and the environment. In thir context, the opportunity for hearing should be a meaningful one that focuses on genuine issues
. and reat disputes regarding agency actions subject to adjudication. By the sarne token, ,
however, applicants for a license are also entitled to a prompt resolution of disputes conceming their applications.
The Commission empliasizes its expectation that the boards will enforce adherence to the hearir$g procedures set forth in the'Commis tion's Rules of Practice in 10 C.F.R. Part 2, as interpreted by the Commission. In addition, the Commission has identified certain specific
. approaches for its boards to consider implementing in individual proceedings, if appropriate, to reduce the time for completing licensing and other proceedings. The measures suggested in
~
this policy statement can be accomplished within the framework of the Commission's existing Rules o'f Practice. The Commission may consider further changes t'o the' Rules of Practice as .
nppropriate to enable additionalimprovements to the adjudicatory process. .
l
Enclosure to Question 56.(A).
. 3-
- 11. SPECIFIC GUIDANCE Current adjudicatory procedures and policies preivide a latitude to the Commissidn, its
' licensing boards and presiding officers to instill discipline in the hearing process and, ensure a prompt yet fair resolution of contested issues in adjudicatory proceedings. In the 1981 policy
. statement, the Commission encouraged licensing boards to use a number of techniques for effective case management including: setting reason'able schedules for proceedings; consolidating parties; encouraging negotiation and settlement conferences; carefully managing and cupervising discovery; issuing timely rulings on prehearing matters; requiring trial briefs, pre-filed testimony, and cross-examination plans; and issuing initial decisions as soon as practicable after the parties file proposed findings of fact and conclusions of law. Licensing boards and presiding officers in current NRC adjudications use many of these techniques, and should continue to do so. .
As set forth below, the Commission has identified several of these techniques, as applied in the context of the current, Rules of Practice in 10 C.F.R. Part 2, as well as variations in procedure permitted under the currergRules of Practice that licensing boards should apply to proceedings. The Commission also intends to exercise its inherent supervisory authority, including its power to assume part or all of the functions of the presiding officer in a given adjudication, as appropriate in the context of a particular proceeding. See, e.g., Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI.90-3,31 NRC 219,229 (1990).
The Commission intends to promptly respond to adjudicatory matters placed before it,'and such matters should ordinarily take priority over other actions before the Commissioners. ,
i .
i
Enclosure to -
Question 56.(A).' ' -
i 4 .
- 1. Hearing Schedules The Comrnission expects licensing boards to establish schedules for promptly deciding the issues before them, with due regard to the complexity'of the contested issues and the i
interests of the parties. The Commission's regulations in 10 C.F.R. 5 2.718 provide licensing boards all powers necessary to regulate the course of proceedings, including the authority.to set schedules, resolve discovery disputes, and take other action appropriate to avoid delay. -
Powers granted under section' 2.718 are sufficient for licensing boards to control the supplementation of petitions for leave to intervene or requests for hearing, the filing of contentions, discovery, dispositive motions, hearings, and the submission of findings of fact and i
conclusions oflaw. ,
Many provisions in Part 2 establish schedules for various filings, which can be varied *as otherwise ordered by the presiding officer." Boards should exercise their authority under these l options and 10 C.F.R. $ 2.718 to shorten the filing and response times set forth in the regulations to the extent practical in a specific proceeding. In addition, where such laftude is not 4 l explicitly afforded, as well as in instances in whleh sequential (rather than simultanecus) filings are provided for, boards should explore with the parties alt reasonable approaches b reduce response times and to provide for simultaneous filing of documents.
Although current regulations do not specifically address service by electronic means. -
licensing boarcs, as they have in other proceedings, should establish procedures for electronic l
l filing with appropriate filing deadlines, unless doing so would significantly deprive a paity of an,.
opportunity to participate meaningfully in the proceeding. Othe'r expedited forms of service of
- documents in proceedings may also be appropNate. The Commission encourage's the licensing boards to consider the use of new technologies to expedite proceedings as those technologies
( become available. - '
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Enclosure to Question 56.(A).
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Boards should forego the use of motions for summary disposition, except upon a written
, finding that such a motion will likely substantially reduce the number ofissues to be decided, or otherwise expedite the proceeding. In addition, any evidentiary hearing should not opmmence. -
. l 1
before completion of the staff's Safety Evaluation Report (SER) or Final Environmental j
l Statement (FES) regarding an application, unless the presiding officer finds that beginning earlier, e.g., by starting the hearing with' respect to safety issues prior to issuance of the SER, will indeed expe,dite the proceeding, taking into account the effect of going foiward on the staff's ability to complete its' evaluations in a timely manner. Boards are strongly encouraged to expedite the issuance of interlocutory rulings. The Commission further strongly encourages presiding officers to issue decisions within 60 days after the parties file the last pleadings permitted by the board's schedule for the proceeding.
Appointment of additional presiding officers or licensing boards to preside over discrete
- issues simultaneously in a proceeding has the potential to expedite the process, and the Chief
' Administrative Judge.of the , Atomic Safety and Licensing Board Panel (ASLBP) should consider this measure under appropriate circuystances. In doing so, however, the Commission expects the Chief Administrative Judge to exercise the authority to establish multiple boards only if: (1) th'e proceeding invclves discrete and sr,verable issues; (2) the issues can be more expeditiously handle.d by multiple boards than by a single board; and (3) the multiple $ cards can conduct the proceeding in a manner that will not unduly burden the parties. Private Fuel Storage, LLC. (Private Fuel Sto' rage Facility), CL1-gB-7,47 NRC_ (1998).
1 :-
s The Commission itself may set milestones for the completion of proceedings. If the ,
f l Commission sets milestones in a particular proc 6eding and the board determines that any single i
, milestone could be missed by mom than 30 days, the licensing board must promptly so inform
. the Commission in writing. The board should explain why the milestbne cannot be met and what l
l . .
Encicaura to ..
Question 56.(A).
l measures , a board w31 take insofar as is possible to restore the proceeding to the overall schedulel .
. 2. Parties' obligations Although the' Commission expects its licensing boards to set and adhere to ' reasonable schedules for'the various steps in the hearing, process, the Commission recognizes that the boards wi!! be unable to achieve the objectives of this policy statement unless the parties satisfy their obligations. The parties to a proceeding, therefore, are expected to adhere to the time frambs specified in the Rules of Practice in 10 C.F.R. Part 2 for filing and the scheduling orders in the proceeding. As set forth in the 1981 policy statement, the licensing boards are expected i
to take appropriate actions to enforce compliance with these schedules. The Cornmission, of course, recognizes that the boards may grant extensions of time under some circumstances, but this should be done only when warranted by unavoidable and extreme circumstances.
Parties are also obligated in their filings before the board and the Commission to ensure L .
that their arguments and assertions age supported by appropriate and accurate references to legal authority and factual basis, including, as appropriate, citation to the record. Failure to do j so may result in material being stricken from the record or,in extreme circumstances, in a party l
l . being dismissed. , ,
l l 3. Contentions ,
Currently, in proceedings govemed by the provisions of Subpart G,10 C.F.R. 4' f f 2.714(b)(2)(iii) requires that a petitioner for intervention shall provide sufficient information to 4
. _ _ _ _ ._.___m. - ~ _ _ _ . - _ . _ . m m. . _ . . _ _ _ _ . _ _ . _ _ _ . _ . _ _ _ . _ _ _ _ _ _ _ _ _ . _ . . . _ . . . _ _ . . _ _ . _ _ _ .
- . . ..== - - - - ~. * . .
. Question 56.(A).
7 .
showthat a genuine dispute exists with the applicant on a materialissue of law' or fact. The Commission has stated that a board may appropriately view a petitioner's support for hs contention in a light ttist is favorable to the petitioner, but'the board cannot do so byJgnoring the requirements set forth in section 2.714(b)(2). Arizona Public Service Co. (Palo Verde Nuclear j
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Generating Station, Units 1,2, and 3), CLI-91-12,34 NRC 149,155 (1991). The C' ommission re-emphasizes that licensing boards should continue to require adherence to section 2.714(b)(2),
and that the burden.of. coming forward with admissible contentions is on their proponent. A ,
contention's proponent, not the licensing board, is responsible for formulating the contention and l
. I l .
providing the necessary information to satisfy the basis requirement for the admission of contentions in 10 C.T.R. 5 2.714(b)(2). The scope of a proceeding, and, as a consequence, the scope of contentions that may be admitted,is limited by the nature of the application and pertinent Commission regulations. For example, with respect to license renewal, under the goveming regulations in 10 C.F.R. Part 54, the review of license renewal applications is .,
i confined to matters relevant to the extended period of operation requested by the applicant. .
The safety review is limited to the pla31 systems, structures, and components (as delineated in 10 C.F.R. $ 54.4) that will require an aging management review for the period of egended .
! operation or are subject to an evaluation of time-limited aging analyses. See 10 C.F.R.
l $$ 54.21(a) and (c),-54.29, and 54.30. In addition, the' review of environmentalissues is limited "by rule by the generic findings in NUREG-1427, " Generic Environmental Impact Statement ,
(GEIS) for License Renewal of Nuclear Plants." See 10 C.F.R. 69 55.71(d)'and 51.95(c).
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l , 8 *(Alt the contention filing stagel,] the factual support necessary to show that a genuine dispute exists needmot be in affidivit or formal evidentiary form and need not be.of the quality necessary to withstand a . summary disposition mo'. ion." Rules of Practice for Domestic Licensing i Proceedings-Pro'ceduralChangesintheHearingProcess,FinalRule 54 r Fed. Reg.33,16B 33,171
- (Aug.11,1989). ,
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.. . Enclorura to Question 56.(A).* -
-8. ,
Under the Commission's Rules of Practice, a licensing board may consider matters on its motion only where it finds that a serious safety, environmental, or common defense and security ,
mat'ter exists.10 C.F.R. 9 2.760a. Such authority is to be exercised only in extraorc3 nary ,
circumstances. If a board decides to raise matters on its own initiative, a copy of its : ruling, -
s'etting forth in general terms its reasons, must be transmitted to the Commission and th'e '
General Counsel. Texas Utilities Generating Co. (Comanche Peak Steam Electric Station, Units 1 and 2). CL181-24,14 NRC 614 (1981). The board may not procesd further with sua sponte issues absent the Commission's approval. The scope of a particular proceeding is limited to the
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scope of the admitted contentions and any issues the Commission authorizes the board to raise sua sponte..
, Currently,10 C.F.R. S 2.714a allows a party to appeal a ruling on' contentions only if (a) the order wholly denies a petition for leave to intervene (i.e., the order denies the petitioner's standing or the admission of all of a petitioner's contentions) or (b) a party other th'an the I
peti'ioner alleges that a petition for leave to intervene or a request for a hearing should have been, wholly denied. Although the reg 0!ation reflects the Commission's general policy to minimize interlocutory review, under this practice, some novel issues that could benefit from L
early Commission review will not be presented to the Commission. For exartple, matters of first impression ir$volving interpretation of 10 C.F.R. Part 54 may arise as the staff and licensing board begin considering applications for renewal of power reai: tor operating licenses.
l Accordingly, the Commission encourages the licensing boards to refer rulings or certify l tluestions on proposed contentions involving novelissues to the Commission in accordance with ,
10 C.F.R. 5 2.730(f) early in the proceeding. In' addition, boards are encouraged to certify novel
! legal or policy questions related to admitted issues to the Commission as early as possible in the
( -
proceeding. The Commission may also exercise its a'uthority to direbt certification of such
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Enclosure to Question 56.(A).
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.g. .
1 particular questions under 10 C.F.R. $ 2.718(i). The Commission, however, will evaluate any matterput before it to ensure that interlocutory review is warranted. -
- 4. Discovery Management i
Efficient management of the pre-trial discovery process is critical to the overall progress l of a proceeding. Because a great deal of information on a particular application is routinely l placed in the agency's public document rooms, Commission regulations already limit discovery ,
I I
against the staff. See, e.g.,10 C.F.R. $$ 2.720(h),2.744. Under the existing practice, however, the staff frequently agrees to discovery without waiving its rights to object to discovery under the l rules, and refers any discovery requests it finds objectionable to the board for resolution This l practice remains acceptable.
Application in a particular case of procedures similar to provisions in the 1993 l
. amendments to Rule 26 of the Federal Rules of Civil Frocedure or informal discovery can I l
improve the efficiency of the discovery process among other parties. The 1993 arnendments to <
Rule 26 provide, in part, that a party s. hall provide certain information to other parties without l waiting
- for a discovery request. This information includes.the names and addresses, if known, l 1
ofindividuals likely to have discoverable information relevant to disputed facts and copies or '
descriptions, including location, of all documents or tangible things in the possession or control of the party that are relevant to the disputed facts. The Commission expects the licensing
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l Enclosure to'#' .,
. Question 56.(A). ,
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. boards to order similar disclosure (and -Haaat updates) If appropriate in the circumstances of l
Individual proceedings. With regard to the staff, such orders shall provide only that the staff identify the witness'es whose testimony the staff intends to present at hearing. The licensing
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boards should also consider requiring the parties to specify the is, sues for which discovery is
! necessary',if this may narrow the issues requiring discovery. , ,
l Upon the boards completion of rulings on contentions, the staff will establish a case file a
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containing the application snd any amendments to it, and, as relevant to the application, any .
! NRC report and any correspondence between the applicant and the NRC. Such a case file should be treated in the'same manner as a hearing file established pursuant to 10 C.F.R.
. 9 2.1231. Accordingly, the staff should make the case file available to all parties and should L periodically update it.
Except for establishment of the case file, generally the licensing board should suspend discovery against the staff until the staff issues its review documents regarding the spplication.
Unless the presiding officer has found that starting discovery against the staff before the staffs ,
review documents are issued will exppdite the hearing, discovery against the staff on safety l 1ssues may commence upon issuance of the SER, and discovery on environmentalissu's e upon l
l Issuance of the FES. Upon issuance of an SER or FES regarding an application, and consistent with such limitations as may be appropriate to protect proprietary or other properly viithheld information" the staff should update the case file to include the SER and FES and any supportirig documents relied upon in the SER or FES not already included in the file.
khe foregoing procedures should allow the boards to set reasonable bounds and
! sphedules for any remaining discovery, e.g., by limiting the number of rounds of interrogatories or depositions or the time for completion of discovery, and thereby reduce the time' spent in the prehearing stage of the hearing process. In particul'ar, the board should allow only a single l
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. Enclorura to Question 56.(A).
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, round of discovery regarding admitted contentions related to the SER or the FES, and the discovery respective to each document should commence shortly after its issuance.
, 111. CONCLUSION The Commission reiterates its long standing commitment to the expeditious mpletion of adjudicatory proceedings while still ensuring that hearings are fair and produce an adequate record for decision. The Commission intends to monitor its proceedings to ensure that they are being concluded in a fair and timely fashion. The Commission will take action in individual proceedings, as appropriate, to provide guidance to the boards ind parties and to decide issues in the interest of a prompt and effec'tive resolution of the matters set for adjudication.
For the Commission Is/ Annette Vietti-Cook -
. . Assistant Secretary of the Commission
/
Dated at Rockville, Maryland, this 28th day of July,1998.
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i QUESTION 57. The NRC has been subjected to substantial criticism for its handling of the license transfer proceeding for Plant Vogtle. While we understand j that some of the inordinate length of the Vogtle proceeding was due to I
the NRC Staff's on-going review of allegations, the fact remains that it !
- took four and one-half years after the application was submitted for the license to be granted-and the proceeding actually was terminated without i l a decision by the Atomic Safety and Licensing Board through a settlement. I i
We expect the rate of license transfer requests to increase as the electric utility industry, including the nuclear industry, begin operating in a competitive environment. For example, PECO Energy and British Energy ,
l recently announced plans to buy the Three Mile Island (TMI) nuclear !
plant. In approximately 90 days, PECO is expected to file with the NRC :
l Its application to transfer TMI's license to PECO. PECO has a long- ,
standing history of solid performance as nuclear licensee. Assuming that there is no pttbiic health and safety issue disclosed during the license i
transfer process, these facts would seem to suggest that the NRC could conduct a relatively speedy licensing process.
i (A) Has the Commission issued guidance to the Atomic Safety and Licensing Board Panel directing Boards to limit the scope of .
i i license transfer, license amendment and license renewal proceedings to pertinent issues? Please provide the guidance.
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QUESTION 57JA). 2 I
ANSWER.
At present the Commission's adjudicatory proceedings for the transfer, amendment, or renewal l of licenses are conducted pursuant to the Commission's Rules of Practice in 10 C.F.R. Part 2.
in the event that a hearing request is filed by an intervenor, the Commission's regulations and L
practice require that the subject matter of the hearing be limited to issues that are pertinent to the licensing action under review. On July 28,1998, the Commission issued a " Statement of Policy on Conduct of Adjudicatory Proceedings"(henceforth," Policy Statement")
In the Policy Statement, the Commission noted specifically with respect to license renewal:
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! "The scope of a proceeding, and, as a consee,uence, the scope of contentions
- that may be admitted, is limited by the nature of the application and the pertinent regulations. For example, with respect to license renewal, under the goveming regulations in 10 C.F.R. Part 54, the review of license renewal applications is confined to matters relevant to the extended period of operation requested by the applicant. The safety review is limited to the plant systems, structures, and components (as delineated in 10 C.F.R. 54.4) that will require an aging management review of the period of extended operation or are subject to an evaluation of time-limited aging analyses. See 10 C.F.R. 54.21(a) and (c),54.29 and 54.30. In addition, the review of environmentalissues is limited by rule by
, the generic findings in NUREG-1427, " Generic Environmental Impact Statement (GEIS) for Ucense Renewal of Nuclear Plants" See 10 C.F.R.6 55.71 (d) and 51.95(c).
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! i QUESTION 57.(A). 3 l
Thus, the Commission has directed that the issues for hearing include only those necessary to l
resolve genuinely controverted issues of law and fact raised by the participants that are material I
to the Commission's ultimate decision whether to approve the application in question. The Policy Statement also reiterates limits on the Ucensing Board's ability to introduce issues on their own by requiring Commission approval for the admission and litigation of such sua soonte issues.
The Commission also has the authority under existing statutes to issue an order approving a license transfer during the pendency of a hearing request. License amendments associated with a license transfer similarly may be issued and made effective prior to the completion of a '
hearing if the NRC makes a finding under section 189a.(l)(A) that the amendments involve "no significant hazards consideration."
On September 11,1998, the Commission published in the Federal Reaister for a 30-day comment period a proposed rule that would establish new, informal procedures for license transfer hearings that, if promulgated as a final rule, could, in general, substantially reduce the time for such hearings.
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- i OUESTION 57. (B) Has the Commission issued any guidance to the Atomic Safety I
and Licensing Board Panel setting out schedules in licensing- l l
cases or directing Boards to do so? Please provide the guidance.
l ANSWER.
The July 28,1998 Policy Statement notes that "[t]he Commission expects licensing boards to establish schedules for promptly deciding the issues before them, with due regard to the complexity of the contested issues and the interests of the parties." Boards are encouraged to exercise their authority "to shorten the filing and response times set forth in the regulations "to the extent practicalin a specific proceeding." The Policy Statement also provides that the Commission itself may set milestones for the completion of proceedings and the Commission will monitor compliance with the milestone schedules. The Commission has taken this step in the license renewal proceeding recently initiated by the Baltimore Gas & Electric Company's application to renew the operating licenses for its Calvert Cliffs Nuclear Power Plant Units 1 l
and 2. In an order issued August 19,1998, the Commission directed the Licensing Board to set a schedule for any hearing granted in this proceeding that will establish as a goal the issuance of a Commission decision on the pending application in about two and one half years from the time the application was received (April 1998). In this order, the Commission also provided guidance concerning specific milestones for the conclusion of significant steps in the adjudicatory proceeding. For example, the Commission directs the Licensing Board to complete its decision on intervention petitions and contentions within 90 days of the date of the ;
Commission's order. The order then sets additional milestones in the event that a hearing is granted and further directs that "the Licensing Board should not grant requests for extensions a
of time absent unavoidable and extrerne circumstances." Consistent with the Policy Statement, 1
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D-QUESTION 57.(B). 2 the Commission's order in the Calvert Cliffs license renewal proceeding directs the Licensing Board to inform the Commission promptly in writing if any single milestone could be missed by more than 30 days, together with an explanation whythe milestone cannot be met and the measures the Board will take to restore the proceeding to the overall schedule.
On September 15,1998, the Commission issued a similar directive with regard to the licensing renewal proceeding for Oconee Nuclear Station, Units 1,2, and 3.
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7 o i OUESTION 57. (C) What oversight process has the NRC established to ensure that Commission's schedular directions are adhered to by Atomic Safety and Licensing Boards?
ANSWER.
1 The July 28,1998, Statement of Policy declares:
The Commission itself may set milestones for the completion of proceedings. If the Commission sets milestones in a particular proceeding and the board determines that any single trilestone could by missed by more than 30 days, the licensing board must promptly so inform the Commission in writing. The Board should explain why the milestone cannot be met and what measures the Board will take insofar as is possible to restore the proceeding to the overall schedule. In a case-specific order issued on !
I August 19,1998 in the Calvert Cliffs license renewal proceeding the Commission !
I provided guidance regarding milestones for the conclusion of significant steps in the l adjudicatory proceeding in the event that a hearing is granted and directed the Licensing Board to inform the Commission promptly if it appears that any single milestone could be missed by more than 30 days, to explain why the milestone cannot be met, and to specify the measures the Board will take to restore the proceeding to the overall l schedule. (See the response to the previous question and attached order CLI-98-14).
In addition, agency adjudicatory proceedings are closely monitored by the Office of Commission Appellate Adjudication which may recommend issuance of Commission orders during the I
course of a proceeding to give the licensing board guidance.
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,, QUESTION 57. (D) .Will the Commission review the performance of the Atomic Safety L
and Licensing Board Panel and its individual members? If such a l
l review has been conducted, when was that review performed?
What actions have been taken based upon the review?
i ANSWER.
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i The Chairman, in consultation with the Commission, each year prepares the annual performance appraisal of the Chief Administrative Judge, Atomic Safety and Licensing Board ,
Panel. To keep the Commission apprised of the Panel's activities, the Chief Administrative '
i Judge prepares a written report for the Commission each month which provides the status of l
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[ ongoing proceedings. In addition, the Chief Administrative Judge periodically meets with ' l indMdual Commissioners, including the Chairman, to discuss procedural matters. Under the ,
Administrative Procedure Act, discussion of substantive matters pending before a Licensing :
l l Board is generally barred in these meetings. The Commission, of course, acting in its 5
adjudicatory capacity, has the opportunity to review each decision issued by a Licensing Board, ;
p provide guidance, and correct any errors. It would be inappropriate for the Commission to L provide performance appraisals for Atomic Safety and Licensing Board members as this could p be perceived as compromising the independence of our administrative judges, thereby reducing
_ public confidence in the NRC licensing process. In 5 U.S.C. 4301(2)(d), Congress has exempted Administrative Law Judges from the performance appraisal requirement and the
. Commission has chosen to do the same for its Administrative Judges because they perform the l~ same functions as Administrative Law Judges.
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l OUESTION 57. (E) Please provide a schedule for completion of all changes the NRC will implement to ensure that its licensing process does not impede the business / corporate decisions made by nuclear utilities ,
to address the competitive environment.
ANSWER.
On September 11,1998, the Commission published in the Federal Reaister for a 30-day !
comment period a proposed rule that would establish new, informal procedures for license transfer hearings that could substantially reduce the time to complete such hearings. These procedures would be designed to provide for public input in the event of requests for a hearing on a license transfer application, while at the same time providing an efficient process that recognizes the time sensitivity and typical nature of the issues normally present in transfer cases.
Pursuant to the Commission's direction, the Office of the General Counsel (OGC) is also reviewing the entire hearing process to identify those areas where legislation might be needed or useful to address the hearing process and to identify additional areas for rulemaking to 1 1
simplify and streamline the hearing process. OGC will forward its analysis and i
recommendations to the Commission by the end of 1998.
1 The NRC will seek legislation that supports the NRC's reading of section 189a of the Atomic
]
I Energy Act to reflect the reading that formal adjudications are not required. Further, with the l anticipated application from USEC for the AVLIS uranium ennchment process expected early l 1
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QUESTION 57.(E). 2 !
l next year, the NRC will consider seeking legislation that would modify section 195's inflexible approach to hearings.
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QUESTION 58. (A) The NRC has participated in several pilot projects (ISI/IST) to apply risk insights. However, it has taken the NRC four years to develop implementation guidance for the application of the risk insights. The industry is concerned about the lack of timeliness on the part of the NRC. Please explain why it has taken more i l
than four years to develop implementation guidance for these ,
i applications? l 1
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ANSWER.
As discussed in the response to question No. 24, the primary reason that the risk-informed pilot licensing activities have taken longer than other past pilot licensing activites is that they have been linked with the development of new NRC procedures and policies, which required resolution of number of complex and difficult technical issues applicable to all risk informed licensing reviews. The most significant issues include: (1) developing a risk-informed framewntk and acceptance guidelines that could be applied in plant-specific licensing decisions, including the pilot applications; (2) defining and articulating the scope and quality of a PRA being used to support a licensing proposal; and (3) developing a practical approach to addressing uncertainty in PRAs. The process for resolving these issues included the development of candidate resolutions with recommendations by the NRC staff, review and consideration of the various options by the Commission and its independent advisory groups, and review and comment by the public. As regulatory positions were being established through this process, pilot licensees were asked to supplement their original proposals with information to address these positions. While this process has been time consuming, the NRC staff
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believes that it was necessary to ensure a coherent and predictable process for conducting l
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QUESTION 58.(A). 2 L licensing reviews that satisfied all of the objectives of the Commission's policy statement on the i
use of PRA,i.e., to enhance the process for making safety decisions, to make more efficient i
use of agency resources, and to remove unnecessary burdens on licensees. .
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l QUESTION 58. (B) What actions will the NRC take to streamline its process for those applicants who se.ek to use the implementation guidance?
r ANSWER.
The NRC committed to several actions to expedite the review process by increasing the priority r for risk-informed licensing action reviews. Allocation of staff resources will be based on
- potential safety benefits of the action, and on potential savings of staff and licensee resources. -
i in addition, a lead project manager for the coordination of risk-informed, performance-based .
licensing actions has been identified. This lead PM will identify, monitor, and coordinate risk- I informed licensing actions; keep track of the review schedules; help identify problems that may require management attention; and coordinate follow-up actions (if any). Also, the ;
' management oversight steering committee has been reestablished to provide policy, technical, [
and priority guidance on risk-informed regulation. Finally, a risk-informed licensing panel is -
assisting in focusing mangement attention, as necessary, on risk-informed licensing actions. A ,
schedule has been laid out for completing the most significant licensing reviews in the response to the Chairman's tasking memo.
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l_ QUESTION 59. The NRC has been subjected to significant criticism regarding its failure )
' to fully consider and apply the backfit rule as it develops and imposes
, staff positions, e.g., hot shorts, spuriots actuations. l l
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l (A) How does the Commission ensure that NRC staff properly applies L the backfit rule? ;
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ANSWER.
) ,
i The NRC has established procedures' and programmatic controls to ensure that the staff u . properly applies the backfit rule for power reactors, Title 10, Code of Federal Regulations, Section 50,109 (10 CFR 50.109). For example, the Commission-approved Charter of the ;
1 Committee to Review Generic Requirements (CRGR) establishes specific agency controls for I
generic backfitting actions (those that apply to multiple plants) and NRC Management Directive t 8.4 (Manual Chapter 0514),"NRC Program for Management of Plant-Specific Backfitting of Nuclear Power Plants," establishes additional controls for plant-specific backfitting. Individual
' Offices and Regions are responsible for identifying and justifying potential generic and plant-specific backfits, before they are imposed. The Director of the Office for Analysis and Evaluation of Operational Data (AEOD) is responsible for oversight of the backfitting programs, y
I.. - ' NUREG-1409, "Baciditting Guidelines,' dated July 1990, contains staff guidance on implementing the j requirements of 10 CFR 50.109. NRC backfitting procedures and staff guidance for generic communications are I included, in the Cv,T T'z'15-approved Charter of the Committee To Review Generic Requirements; NRC Inspection Manual Manual Chapter 0720 " Nuclear Regulatory Commission Generic Commun'mations Regarding Nuclear Reactorissues* (MC 0720); NRR Office Letter No. 500, Revision 2, " Procedures for Controlling the Development of New and Revised Generic Requirements for Power Reactor Licensees" (OL 500); and NRR Office Letter No. 503,
" Procedures for Integrated identification, Evaluation, Prioritization, Management, and Resolution of Gener'c Issues,"
(OL 503). NRR Office Letter No. 901, " Procedures for Managing Plant-Specific Backfits and 10 CFR 50.54(f) l information Request," contains individual office guidance, including management of the backfit appeal process. In l addition, each Regional Office uses a formal procedure for co1 trolling plant specific backfitting and handling of 2
' backfit appeals.
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I OUESTION 59(A). 2 i
l including conducting audits, providing training and obtaining industry feedback on the ;
effectiveness of the NRC's nuclear regulatory backfitting process.
I .
The CRGR, an independent Committee of senior managers from several offices, reviews B
l proposed generic backfits and provides a recommendation to the EDO as to whether the proposed actions should be issued, modified, or withdrawn. In addition, a key element to developing and imposing well justified generic requirements is openness and responsiveness to the stakeholders. Therefore, the NRC has implemented the practice of issuing proposed generic actions forpublic comment. The Commission urges stakeholders to actively participate j in the public comment process for proposed generic actions. This is helpful to the NRC in i developing carefully thought out, well justified, risk-informed, and less prescriptive regulatory requirements, since the staff must address public comments, modify the proposal as !
L appropriate, and re-submit it for a formal review by the CRGR.
The CRGR submits an annual report to the Commission on the value added to the NRC mission by its activities, including the result of a self-assessment, and input from various
- stakeholders. This report includes the highlights of the CRGR members' visits to nuclear 1
facilities to obtain feedback on how the backfitting process is working. This report also i
[ includes the highlights of the CRGR Chairman and staff periodic meetings with industry-
- supported organizations to obtain industry feedback on the effectiveness of the backfitting process.
! j 3
Notwithstanding the NRC backfit procedures and programmatic controls, the Commission has
, been'made aware of industry concerns via the meetings with industry representatives l l
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QUESTION 59fA). 3 discussed above. Some concerns result from the licensing review process through requests for
. additional information. Although specific details have not been provided, the general concem has been provided to senior managers in NRR 'who are responsible for ensuring that unauthorized plant specific backfits are not imposed in the licensing review process. Some concems result from inspection activities. Last year, the Commission expanded the scope of the CRGR Chartar to include review of inspection guidance. Some concerns arise because of industry misunderstanding regarding actions that are authorized (i.e., justified as an information request, a compliance backfit, and/or a cost-justified substantial safety improvement backfit). I This indicates a need for additional workshops with industry representatives and, although such workshops are not currently scheduled, they will be planned in the near future. Currently an !
1 independent NRC panel is reviewing a formal backfit appeal from Maine Yankee, and l l
I recommendations for further improvements in the backfit management process may be j
forthcoming from that review. In early September, NRC and NEl Senior Managers met on issues of mutualinterest, including the backfit rule. In addition the staff backfit training and audit activities which are planned for FY 1999 may indicate additional specific areas in need of improvement. Where needed improvements are identified, we will take appropriate corrective action.
Regarding the examples cited, the generic technical and safety issues associated with hot
, ' shorts and spurious actuations are expressly covered by existing regulatory requirements.
Specifically, the NRC regulatory requirements for fire protection address the potential for l
nuclear power plant fires to cause hot shorts and specify that such circuit failures shall not i prevent the operation or cause the maloperation (spurious actuation) of components required to achieve safe shutdown. The NRC staff is working in cooperation with the Nuclear Energy l
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i QUESTION 59(A). 4 Institute and other nuclear power industry representatives to resolve these issues. To date, l
l these efforts have been within the scope of the existing regulation and have not resulted in any potential generic or plant-specific backfits. If future actions to fully resolve these issues involve potential backfits, the staff will follow its established backfitting procedures before they are imposed.
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.OUESTION 59. (B) What programs are in place to train NRC personnel about the applicability and use of the backfit rule?
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ANSWER.
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I Backfit training is included in the initial training and qualification of new resident inspectors. In addition, the AEOD staff has periodically provided backfit training to both the headquarters and 1
the regional technical personnel and audited the plant-specific backfitting programs of their )
offices. Backfit training involved presentations and dialogue during seminars and regional i inspector counterpart meetings. The training was reinforced by reviews of applicable regulation and staff guidance (e.g., the backfit rule (10 CFR 50.109) and NUREG-1409, "Backfitting Guidelines") and specific agency procedures (e.g., the CRGR Charter, NRR office procedures, and NRC Inspection Manual - Manual Chapter 0720), and by conducting four regional NRC-Industry workshops on the backfitting process. Backfit audits involved an assessment of the backfitting practices of each region / office by detailed reviews of their records and by conducting interviews with the backfit coordinators and managers, including the Regional Administrators. A database of plant-specific backfits and backfit appeals is maintained and used to assist in auditing the process.
Backfit training for the headquarters staff was last conducted 4 years ago. Until FY 1996, the regional periodic training and auditing were conducted annually; however, at that time it was
!- decided that the objectives could be inet by conducting these activities every other year.
Because of resource constraints, the scheduled FY 1998 regional training and auditing were not conducted. It is expected that the headquarters and the regional backfit training and audits will be completed during FY 1999.
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! l QUESTION 59. (C) What action will the NRC take to ensure that the backfit appeal process provides an opportunity for an impartial review of the licensee complaint?
ANSWER.
The NRC urges licensees to exercise their right to appeal any action that they consider to be a backfit that was not identified and justified as such, or an identified backfit for which the justification is inadequate. However, in the past dozen years there have been very few appeals.
A plant-specific backfit appeal is reviewed b'y a panel appointed by the cognizant regional administrator or office director. The panel members are NRC managers who are knowledgeable of the backfitting process and the technical issues at hand, and who have not j been involved in the decision-making process involving the issue in question. The panel reviews the issue being appealed and provides its recommendation to the office director or-
.' regional administrator. In case of an unfavorable decision, the licensee may appeal to the EDO.
l Generic backfits may be appealed to the Director of the Office of NRR or to the EDO.
Typically, such an appeal would be referred to the CRGR to review the matter and provide a recommendation to the EDO. !
The NRC is aware that power reactor licensees are generally hesitant to initiate a formal backfit l appeal out of concem that doing so may adversely impact their relationship with the NRC.
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However, the NRC encourages the licensees to exercise the backfit appeal process, as it is an i
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OUESTION 59(C).
important and an integral part of the rogulatory process. It can provide the NRC with valuable opportunities to address licensee concerns, assess adequacy and effectiveness of its own backfitting activities, sensitize the staff, and assure an effective backfit management process in the future. The EDO and the Office of the inspector General stand ready to deal with any evidence that staff objectivity was affected by a licensee exercising their right to appeal the !
improperimposition fo a new staff position or requirement.
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QUESTION 60. (A) How does the NRC ensure that when a staff member identifies an
" agency position" it has been reviewed by senior NRC staff or the Commission?
r ANSWER.
Documented products s.uch as licensing actions and inspection reports receive management review prior to issuance. Part of this review is to ensure that any regulatory decision is consistent with agency direction, and that there are no new " agency positions." If individual reviews are raising concems that are not documented and are new positions, the response that -
follows for part B of this question would be applicable.
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QUESTION 60. (B) What oversight mechanism has been established to ensure that licensees are not asked to take action beyond l NRC regulatory requirements?
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j ANSWER.
l l i j The NRC has four processes that monitor concems raised by licensees about pressures to take :
action beyond regulatory requirements. (1) Licensees can report concems to NRC management during periodic site visits required by inspection Manual Chapter (IMC) 0102, j
- " Oversight and Objectivity of Inspectors and Examiners at Reactor Facilities." IMC 0102 ;
requires NRC management to make periodic site visits to solicit feedback from their licensee ,
counterparts regarding implementation of the NRC regulatory programs at their facility, f Concems raised by licensees during IMC 0102 visits are evaluated annually with the results reported to the Commission. - (2) Each region has a formal process to evaluate and resolve licensees' complaints of inappropriate regulatory action by NRC employees. Each procedure i
l requires a determination if the issue should be pursued by the Office of the inspector General ;
(OlG) or the region. For issues reviewed by the region, the regional administrator approves a course of action including any specific remedial actions. (3) If the issue is referred to the OlG, the matter is handled in accordance with Management Directive 7.4, " Reporting Suspected Wrongdoing and Processing OlG Referrals." (4) A formal process was established in July f;
( .
1995 for senior power reactor licensee officials to report perceived inappropriate regulatory
' action directly to the Office of the EDO. Independent of these processes, licensees can ;
informally discuss any concem directly with their counterpart in the regional office or in NRR at
. any time.
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L QUESTION 60. (C) What protection has the NRC provided for licensees against any perceived or actual regulatory retaliation they experience? How does the NRC measure whether such protection is effective?
ANSWER.
As discussed in the response to the previous question, the NRC has four processes that L monitor concems raised by licensees. Although the NRC does not have a formal metric for measuring program effectiveness, the NRC does not tolerate any regulatory retaliation against its licensees. Any retaliation should be repor'.ed promptly to the appropriate Office Director, the Executive Director for Operations, the Insrector General, or the Commission itself so the matter .
I can be promptly addressed by senior agency management.
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.l The processes described in Question 60(B) are also available to detect any potential retaliation I
l and to assess whether these mechanisms are effective.
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_ QUESTION 61. The NRC issues administrative letters, information notices, bulletins and generic letters. Each of these communications have significant impact on licensees because they become, de facto, equivalent to regulatory requirements. It would appear that by issuing these communications, the NRC is not following the formal procedures required by the Administrative Procedures Act for imposing regulatory requirements.
What oversight does the Commission exercise to ensure that these communications do not impose additional regulatory requirements?
ANSWER.
Generic communications issued by the NRC have different purposes. Administrative letters and information notices contain no requirements. Administrative letters inform licenseec of administrative procedure changes relating to the implementation of NRC reguir!;
i information notices (ins) are used to bring significant safety, security, or environmental Information to the attention of licensees. ins are not used to convey or imply new requirements. Administrative Letters and ins do not require response from licensees.
Bulletins and generic letters are a type of generic communication based on an existing requirement that transmit information to, requests specified action by, and requires a written response in accordance with Section 182a, Atomic Energy Act of 1954, as amended, and 10 CFR 50.54 (f) from addressees regarding matters of safety, safeguards, or environmental i
significance. Bulletins generally do not request continuing actions. Generic letters may request that analyses be performed or descriptions of proposed corrective actions be submitted l
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l l 1 OUESTION 61. 2 regarding matters of safety, safeguards, or environmental significance. Generic letters may l
l also request addressees to submit technical information to assess present plant conditions.
Requests for analyses or technical information may be on a voluntary basis or required in I
accordance with Section 182a, Atomic Energy Act of 1954, as amended, and 10 CFR 50.54 (f).
l Generic letters are also used to provide staff technical or policy positions not previously l
! communicated or broadly understood.
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Generic letters and bulletins require senior management approval. In an August 7,1998 i memorandum, the director of NRR provided guidance to the staff regarding the need to brief L senior management before preparing generic letter or bulletin. The briefing must show the l
safety benefit achieved compared to the burden imposed on licensees and staff is justified i
before the generic communication is allowed to proceed through a defined review process. l Next, the Committee to Review Generic Requirements (CRGR) conducts a structured review of l f all proposed generic letters and bulletins in accordance with an established process intended to j
( assure the "value-added" from the particular communication is justified. At this stage, the office of General Counsel reviews the document and if requested it is also forwarded to the Advisory i
Committee on Reactor Safeguards (ACRS). Industry comments are sought through a publication in the Federal Register. The Commission also reviewed the proposed final document before issuance.
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l OUESTION 62. During the July 17,1998, roundtable discussion held by the NRC, former :
l Commissioner Remick stated that the use of " Confirmatory Action Letters has grown by leaps and bounds recently, and these are viewed as convenient techniques to obtain changes that the staff wants done, while i
getting around the backfit rule, the regulations and the Commission." ;
Commisskmer Remmick " urge [d]" the Commission to consider the following criteria before issuing confirmatory Action Letters: ;
- What is the relative safety significance of the individual actions being confirmed? ,
- Are the actions, in effect, new requirements? ;
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- Where are the actions specified in the regulations?
Do the actions meet the criteria of the backfit rule? i l
is the letter truly" confirmatory?" i (A) Does the Commission intend to review recently issued :
Confirmatory Action Letters against these criteria?
ANSWER. I f
j' Following the Comm'ssion's i appearance before the Senate Subcommittee on Clean Air, l Wetiands, Private Properly, and Nuclear Safety on July 30,1998, the Chairman issued a !
tasking memorandum directing the staff to identify, define, and prioritize those areas which l P
support our long term performance goals and which will receive near term attention. A review l
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of our Confirmatory Action Letter process and criteria has been included in the response to the l-
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QUESTION 621A). 2 Chariman's tasking memorandum. As part of this effort, the Commission willintegrate the criteria suggested by Commissioner Remick in a review of recently issued Confirmatory Action ;
i Letters. .
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I QUESTION 62. (B) Please provide the results of your review. I l
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The results will be provided following completion of the review. The results of the review are scheduled to be provided in January 1999.
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QUESTIOtj_Q2 (C) What is the current criteria used to determine whether to issue a Confirmatory Action Letter?
ANSWER.
The current criteria used to determine whether to issue a Confirmatory Action Letter (CAL) are found in NUREG/BR-0195, Revision 1, "NRC Enforcement Manual." As stated in Chapter 4.6 ,
of the NRC Enforcement Manual: '
"CALs are letters issued to licensees or vendors to emphasize and confirm a licensee's or vendor's agreement to take certain actions in response to specific issues. The NRC expects licensees and vendors to adhere to any obligations and commitments addressed in a CAL and will issue appropriate orders to ensure that the obligations and commitments are met. CALs are normally used for emergent situations where the staff i
believes that it is not necessary or appropriate to develop a legally binding requirement, l In light of the agreed-upon commitment. CALs are flexible and valuable tools available j to the staff to resolve licensee issues in a timely and efficient manner." l l
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QUESTION 62. (D) Does the Commission intend to change the criteria for issuing future Confirmatory Action Letters?
l ANSWER. l l
The Commission will determine the need to change the criteria for issuing CALs following completion of the above review of recently issued CALs. A discussion of this decision will be provided with the results of item (A) in January 1999. l l
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