ML20195D939
| ML20195D939 | |
| Person / Time | |
|---|---|
| Issue date: | 06/01/1988 |
| From: | NRC |
| To: | |
| References | |
| FRN-52FR34223, FRN-53FR20603, RULE-PR-50 NUDOCS 8806230254 | |
| Download: ML20195D939 (33) | |
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(7590-01) 00MEtte u%c NUCLEAR REGULATORY COMMISSION M dN -1 P1 $3 10 CFR PART 50 cq,g, , , ,,
REVISION OF BACKFITTING PROCESS FOR POWER RE CT 2f AGENCY: Nuclear Regulatory Comission.
ACTION: Final rule.
SUMMARY
- The Nuclear Regulatory Commission is promulgating an amended rule which governs the backfitting of nuclear power plants. This action
( is necessary in order to have a backfit rule which unambiguously conforms with the August 4,1987 decision of the U.S. Court of Appeals for the District of Columbia Circuit in Union of Concerned Scientists, et al., v.
U.S. Nuclear Regulatory Commission. This action is intended to clarify when economic costs may be considered in backfitting nuclear power plants. The final rule as set out in this document is substantially the same as the proposed rule (52 FR 34223; September 10,1987).
EFFECTIVE DATE: July 6. 1988.
FOR FURTHER INFORMATION CONTACT: Steven F. Crockett, Office of the g
General Counsel, U.S. Nuclear Regulatory Comission, Washington, D.C.
20555. Phone: (202)492-1600.
SUPPLEMENTARY INFORMATION:
8806230254 080601 Background QR On September 20, 1985, after an extensive rulemaking proceeding which included sequential opportunities for public coment on an advanced notice of proposed rulemaking (48 FR 44217; September 28,1983) c sm aosas) a ogi
[7590-01) 2 and a notice of proposed rulemaking (49 FR 47034; November 30,1984),the Comission adopted final amendments to its rule which governi the backfitting of nuclear power plants,10 CFR 50.109 (50 FR 38097; September 20,1985). Backfitting is defined in some detail in the rule, but for purposes of discussion here it means measures which are directed by the Comission or by NRC staff in order to imprave the safety of nuclear power reactors, and which reflect a change in a prior Comission or staff position on the safety matter in question.
t Judicial review of the amended backfit rule and a related internal NRC Manual chapter which partially implemented it was sought and, on August 4,1987, the U.S. Court of Appeals for the D.C. Circuit rendered its decision vacating both the rule and the NRC Manual chapter which implemented the rule in part. VCS v. NRC, 824 F.2d 103. The Court concluded that the rule, when considered along with certain statements in the rule preamble published in the Federal Register, cid not speak unambiguously in terms that constrained the Comissior from considering
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economic costs in establishing standards to ensure adt;quate protection of the public health and safety as dictated by section 182 of the Atomic Energy Act. At the same time, the Court agreed with the Comission that once an adequate level of safety protection had been achieved under section 182, the Commission was fully authorized under section 1611 of the Atomic Energy Act to consider and take economic costs into account in ordering further safety improvements. The Court therefore rejected the position of petitioners in the case, Union of Concerned Scientists, that economic costs may never be a factor in safety decisions under the Atomic Energy Act.
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(7590-01) 3 Because the Court's opinion regarding the circumstances in which costs may be considered in making safety decisions on nuclear power plants was completely in accord with the Comission's own policy views on this important subject, the Comission decicMd not to appeal the decision. Instead, the Comission decided to amend both the rule and the related NRC Manual chapter (Chapter 0514) so that they conform ,
unambiguously to the Court's opinion. On September 10, 1987, the Comission published proposed amendments to the rule (52 FR 34223) and provided for a coment period ending on October 13, 1987.I In this rulemaking the Comission has adhered to the following safety principle for all of its backfitting decisions. The Atomic Energy Act comands the Comission to ensure that nuclear power plani, Operation provides adequate protection to the health and safety of the public, in defining, redefining or enforcing this statutory standard of adequate protection, the Comission will not consider economic costs. However, adequate protection is not absolute protection or zero risk. Hence safety improvements beyond the minimum needed for adequate protection are I In its coments on the proposed amendments, the Union of Concerned Scientists asserts that the Federal Register notice of the pro)osed amendments was technically defective. UCS argues that since tie Court had vacated the entire rule, the Federal Register notice should have proposed enactment of an entire, amended, rule, rather than simply amendments to the vacated rule. In weighing the technical merit of UCS' argument, it should be noted that as of the date of the Federal Register notice, the mandate of the Court had not yet issued and the nale was thus still legally in effect. However, the more important consideration is that the notice clearly revealed the Comission's intent to reissue the backfit rule once it had been confonned to the Court's decision. UCS understood this intent and took the opportunity to resubmit the comments
[FootnoteContinued)
[7590-01]
. 4 possible. The Comission is empowered under section 161 of the Act to impose additional safety requirements not needed for adequate protection and to consider economic costs in doing so.
The 1985 revision of the backfit rule, which was the subjtet of the Court's decision, required, with certain exceptions, that backfits be imposed only upon a finding that they provided a substantial increase in the overall protection of the public health and safety or the comon defense and security and that the direct and indirect costs of I implementation were justified in view of this increased protection. The amended rule, set out in this document, restates the exceptions to this requirement for a finding, so that the rule will clearly be in accord with the safety principle stated above. Particularly in response to the Court's decision, the rule now provides that if the centemplated backfit involves defining or redefining what level of protection to the public health and safety or comon defense and security should be regarded as adequate, neither the rule's "substantial increase" standard, nor its
( "costsjustified"standard,seei50.109(a)(3),istobeapplied. (See i50.109(a)(4)(iii).) Also in response to the Court's decision, see 824 F.2d at 119, the rule now also explicitly says that the Coninission shall always require the backfitting of a facility if it detertnines that such regulatory action is necessary to ensure that the facility provides
[FootnoteContinued) i it had submitted during the rulemaking leading up to the 1985 revision of l the rule. In any event, the Comission is publishing the entire rule in this document.
l 1
[7590-01) 5 adequate protection to the health and safety of the public and is in accord with the comon defense and security.
On instruction from the Comission, the NRC staff has amended its Manual chapter on plant-specific backfitting to ensure consistency with the Court's opinion. Copies of the revised chapter are available for public inspection in the Comission's Public Document Room,1717 H Street, NW., Washington, DC 20555.2
, Response to Coments Coments were received from 12 utilities, one Federal agency (DOE),
one vendor, seven individuals, seven citizens' groups, and two industry groups. Lengthy and detailed coments were submitted by the Union of Concerned Scientists (UCS) and the Nuclear Utility Backfitting and Refonn Group (NUBARG). Both organizations were active in the rulemaking which led to the 1985 revision of the rule. The coments submitted by these two groups encorrpassed most of the coments made by others. Below, the Comission paraphrases the chief coments and responds to them. The Comission has given careful consideration to every coment. The 2 Several comenters argue that the revised Manual chapter should l undergo what amounts to notice and coment rulemaking. However, the i
Manual chapter, if it is a rule at all, is a rule of agency organization, procedure, or practice, and therefore is not subject to the notice and coment requirements of the Administrative Procedure Act. See 5 U.S.C.
l 5553(b)(A);seealsoi553(a)(2). The Comission did publish for coment an earlier version of Manual Chapter (49 FR 16900; April 20, l
1984), but that version was already in effect when it was published for I
[FootnoteContinued]
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6 original connents may be viewed in the NRC's Public Document Room in Washington, DC.
"Adequate Protection" The great majority of the comenters reised issues about the rule's use of the phrase "adequate protection". This phrase is used in the rule's exception provisions. Seei50.109(a)(4). Generally, the rule
( requires, among other things, that it be shown for a given proposed backfit that implementation of the backfit would bring about a "substantial increase" in overall protection to public health and safety, and that the direct and indirect costs of the backfit are justified by that substantial increase. Seei50.109(a)(3). However, i 50.109(a)(4) also requires that these two standards not be applied in three situations:
First, where the backfit is required to bring a facility into
[
compliance with NRC requirements or the licensee's own written comitments; Second, where the backfit is necessary to ensure that the facility provides adequate protection to the health and safety of the public and is in accord with the comon defense and security; and
[FootnoteContinued]
comment, and it was published for coment only because the Comission was still in the process of making fundamental changes to the backfitting y process and wanted connent on the procedures then in effect. See id.
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7 Third, as noted above, where the backfit involves defining or redefining what level of protection to the public health and safety or comon defense and security should be regarded as adequate.
The coments on the rule's use of the phrase "adequate protection" generally took two foms, each discussed more fully later on in this notice. The first fom, most fully represented by UCS' coments, was that the rule itself should actually include a definition of "adequate protection" (the final rule set out in this document does not), a phrase nowhere explicitly defined in general tems, either in the Atomic Energy Act, from which the phrase comes, or in the Comission's regulations.
The second, more modest, fom of the coments on "adequate protection", most fully represented by NUBARG's comments, was that one or another of the three exception provisions in the rule was redundant (none is). While not amounting to a call for a definition of "adequate protection" NUBARG's corrnents displayed some of UCS' uncertainty about what the Comission meant by the phrase.
( Each group had difficulty applying the phrase to characterize past Comission action in backfitting. UCS claimed that the Comission had never backfitted in order to achieve something beyond "adequate protection." NUBARG, however, claimed that the Comission had never required a backfit on the grounds that compliance with tb regulations was not enough to provide adequate protection. Inese views, differing in emphasis, roflect the two groups' opposite concerns about the possibility that the Comission would use the phrase "adequate protection" arbitrarily. UCS is concerned that the Comission might interpret the phrase "adequate protection" to refer to a level of safety such that
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. 8 every proposed improvement would be subjectad to cost-benefit analysis.
Conversely, the industry appears concerned that the Commission might interpret the phrase "adequate protection" to refer to a level of safety such that no proposed improvement would be subjected to cost-benefit analysis.
The Comission certainly did not intend that this rulen.aking should focus on the meaning of the phrase "adequate protection". The main point of this rulemaking was simply to negate the misimpression left by two statements in the preamble to the 1985 version of the backfit rule. UCS puts forward two grounds for its emphasis on the phrase "adequate protection". First, UCS asserts that "[t]he crucial decision as to whether cost benefit analysis will be used in assessing the need for backfitting is dependent on whether the particular backfitting under consideration is needed to ensure adequate safety ... ." Second, UCS claims that the Court "ordered" the Comission to "stop trying to obscure its intentions through ambiguous and vague language ... ."
i However, as will be explained more fully below, the Court's decision turned not on the rule's lack of a definition of "adequate protection" l but rather on two statements which seemed to the Court to imply that the Comission intended to take costs into consideration in determining what l "adequate protection" required; the meaning of "adequate protection" was simply not an issue in the litigation. Moreover, UCS overestimates the role the phrase "adequate protection" plays in the backfit rule. The threshold decision in considering a proposed backfit, and very often the l
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9 only decision that need be made.3 is not whether adequate protection is at stake but rather whether the facility is in compliance with the Comission's requirements and the licensee's written comitments.
Even if UCS is right about the importance of the phrase "adequate protection", there is nothing unusual or imprudent, and certainly nothing illegal, about decisions which ultimately turn on the application -- by duly constituted authority and after full consideration of all relevant information -- of phrases which are not fully defined. Consider, for instance, the "reasonable assurance" determination the Comission must
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make before issuing an operating license.4 Indeed, most of the Comission's rules and regulations are ultimately based on unquantified and, as we note below, presently unquantifiable ideas of what constitutes "adequate protection".
Were there sonething peculiarly critical about the role of "adequate protection" in the backfit rule, the issue of the phrase's meaning could have been raised in the rulemaking for the 1985 rule. Two of the three exception provisions set out above were in the 1985 revision of the rule, where they used the equivalent phrase "undue risk" instead of "adequate protection". Also, as the Court in UCS v. NRC noted, 824 F.2d at 119, 3
For instance, a majority of the plant-specific backfits carried out I during the first year after the 1985 revision of the backfit rule became I
effective were for the sake of compliance. See SECY-86-46, Evaluation of Managing Plant-Specific Backfit Requirements (November 21,1986),
Enclosure 1.
4" license may be issued by the Comission ...
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... [A]n upon finding operating]here that: ...[t is reasonable assurance ... that the
[FootnoteContinued]
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10 the statement of considerations which accompanied the 1985 version of the l
rule quite explicitly at least twice limited the consideration of costs in backfitting decisions to situations where "adequate protection" was already secured.5 Nonetheless, an issue which is a concern of almost every commenter in this rulemaking should not be ignored. Therefore, the Comission will answer as best it can the questions the comenters have raised concerning the rule's use of the phrase "adequate protection". We begin with UCS' call for an objective and generally applicable definition of "adequate protection". We argue that such a definition is not possible in the near future, but that the public and licensees are nonetheless protected against misuse of the phrase. In the course of responding to UCS' coments, we shall, of necessity, be making at least preliminary responses to most of NUBARG's coments also.
UCS argues that the rule permits the agency to escape its legal responsibility to articulate the factors on which it bases its
( backfitting decisions. UCS asserts that the rule should "enunciate criteria and guidelines about what constitutes redefining and defining
[FootnoteContinued]
activities authorized by the operating license can be conducted without endangering the health and safety of the public ... ." 10 CFR 50.57(a)(3).
5"The consideration and weighing of costs contemplated by the rule applies to backfits that are intended to result in incremental safety improvements for a plant that already provides an acceptable degree of protection [,]" 50 FR 38103, col. 1; also, "[t]he costs associated with proposed new safety requirements may be considered by the Comission
[FootnoteContinued]
[7590-01]
. 11 adequate protection levels, what constitutes an adequate as opposed to a beyond adequate protection level, and what factors place a particular circumstance within the rule or within the exceptions." Another coment asserts that any definition of "adequate protection" should include the resolution of all outstanding safety issues. Yet another calls for "objective criteria", "some real numbers" on releases, accident consequences, and the like.
There does not exist, and cannot exist, at least not yet, a generally applicable definition of "adequate protection" which would guard against every possible misuse of the phrase. Congress established "adequate protection" as the standard the Comission is to apply in licensing a plant, see 42 U.S.C. 6 2232(a), and gave the Comission authority to issue rules and regulations necessary for protection of public health and safety, see 42 U.S.C. I 2201, but Congress did not define "adequate protection", nor did it comand the Comission to define it.
(
l Such a definition would have to take one of two forms, one of them l incapable of preventing the abuses the comenters are concerned about, and the other simply not possible yet. The first of these would be a verbal definition of the kind encountered in, for instance, the various "reasonable man" standards in the comon law. After the pattern of t~n ese, the Comission could say, corrcctly, that "adequate protection" is
[FootnoteContinued) provided that the Atomic Energy Act finding 'no undue risk' can be made."
Id. at 38101, col. 3.
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12 not zero risk, that it is the same as "no undue risk", that it has long-tenn and short term aspects, and that it is that level of safety which the Atomic Energy Act requires for initial and continued operation of a nuclear power plant. However, such a definition clearly will not, of itself, prevent the abuses UCS and NUBARG are concerned about, nor is such a standard sufficiently helpful to the NRC staff in actual practice.
Thus, if there is to be a useful and generally applictble definition
, of "adequate protection", it must take another, more precise form, namely, quantitative. Several of the commenters seem to have such a definition in mind when they call for "objective criteria", some "real numbers", and the like. In fact, the Comission is actively pursuing reliable quantitative measures of safety, and some quantita'cive and generally applicable definition of "adequate protection" may eventually emerge as a byproduct of the Comission's efforts, still in their early stages, to implement its general safety goals, which take a partly quantitative form. (See51FR30028; August 21, 1986, Policy Statement s
on Safety Goals.) However, given the state of the art in quantitative safety assessment, it is not reasonable to expect that the Comission could make licensing decisions -- let alone decisions on whether to consider cost in backfitting -- wholly on a quantitative definition of "adequate protection". Surprisingly, some of the comenters who call for "objective criteria", "some real numbers", and the like, have in the past criticized quantitative risk assessments.
Nonetheless, even in the absence of a useful and generally applicable definitien of "adequate protection", the Comission can still make sound judgments about what "adequate protection" requires, by
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13 relying upon expert engineering and scientific judgment, acting in the light of all relevant and material infomation. As UCS itself said in its coments on the proposed 1985 revision of the rule, "[u]ltimately, the determination of what standards must be met in order to provide a reasonable assurance that the public health and safety will be protected comes down to the reasoned professional judgment of the responsible ,
official."
( The Commission's exercise of this judgment will take two familiar forms, of which the most important is rule and regulation. An essential point of the Comission's having regulations is to flesh out the "adequate protection" standard entrusted to the Comission by Congress.
See UCS v. NRC, 824 F.2d at 117-18. Exercising engineering and scientific judgment in the light of all relevant and material information, the NRC identifies potential hazards and then requires that designs be able to cope with such hazards with sufficient safety margins l
l and reliable backup systems. Regulations and guidance arrived at in this
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way da not, strictly speaking, "define" adequate protection, ]ince there i
j will be times when the NRC issues rules which require something beyond adequate protction. Nonetheless, compliance with such regulations and guidance may be presumed to assure adequate protection at a minimum. As the Comission has said on many occasions, compliance with the Comission's regulations and guidance "should provide a level of safety sufficierit for adequate protection of the public health and safety and l comon defense and security under the Atomic Energy Act." (49 FR 47034, 47036, col. 2, November '0,1984, proposed 1985 rule; see also 50 FR 1
t
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14 38097, 38101, col. 3. September 20, 1985, final 1985 rule; 51 FR 30028, col. 1, August 21, 1986, Policy Statement on Safety Goals.)
Because "adequate protection" is presumptively assured by compliarce with the regulations and other license requirements, all the versions of the backfit rule -- the 1970 rule, the 1985 rule, and the one set out in this document, see i 50.109(a)(4)(1) -- have a "compliance" exception:
plants out of compliance may be backfitted without findings of "substantial increase" in protection or a "justification" of costs.
However -- and here is where the lack of a general definition for "adequate protection" poses a challenge - "adequate protection" is only presumptively assured by compliance. As the Connission said in promulgating the 1985 revision, the presumption may be overcome by, for instance, new infonnation which indicates that improvements are needed to ensure adequate protection. (50 FR 38101 at 38101, col. 3.) Such new information may reveal an unforeseen significant hazard or a substantially greater potential for a known one, or insufficient margins i
and backup capability. Engineering judgment may, in the light of such information, conclude that restoration of the level of protection presumed by the regulations requires more than compliance. Thus both the 1985 revision and the revision below contain exemptions for backfits necessary to assure "adequate protection", or, as the 1985 rule equivalently said, "no undue risk". See i 50.109(6)(4)(11) of the rule
! set out in this document.
I If compliance does not assure adequate protection, the Commission must be able to determine how much more protection is required, and a precise and generally applicable definition of "adequate protection" l
l - - - - - _ . _ _ _
[7590-01) 15 would facilitate that determination. But such a definition would have only a limited role to play. The first and most crucial question is whether the proposed backfit is required to bring a plant into compliance. Only if the proposed backfit requires more than compliance with NRC regulations and license conditions need there be a determination as to what "adequate protection" requires. Given this relation between -
compliance and "adequate protection", the industry might be more concerned than UCS is about the lack of a general definition of "adequate protection", for VCS will at least have the comfort of knowing that compliance will be secured before cost is considered, but the industry cannot be sure how much more than compliance may be asked of it despitt:
the cost.
Where, as in the cases contemplated by the second exception provision of the rule, more than compliance is required and quantitative criteria do not define "adequate protection", the agency must fall back l (' on the second familiar fonn in which engineering judgment is exercised by the Commission, namely, case-by-case. Administrative agencies are not
- required to proceed by rula alone, for the method of case-by-case judgment is quite capable of meeting the requirement that the factors on l
which administrative decisions are based be articulated. Rather than l
proceeding by an almost ministerial application of "objective criteria",
the Comission must fashion a series of case-by-case judgments into a well-reasoned and factually well-supported body of decisions which, acting as reasoned precedent, can control and guide the Comission's exercise of the discretion granted it by Congress in precisely the way in which comon-law precedents cc end guide the comon law judge's l
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16 exercise of his or her judgment. See Nader v. Ray, 363 F.Supp. 946, 954-55 (D.D.C.1973) (determining what constitutes adequate protection calls for exercise of discretion in a judgmental process very different from acting in accord with a clear, non-discretionary legal duty).
The Comission foresaw the need to proceed case-by-caa on occasion and therefore made it a principal aim of the backfit rule to centralize the responsibility and document the bases for case-by-case decisions for such decisions. The Comission thereby hoped to better assure that such decisions as might of necessity be case-by-case would fonn a reasoned and coherent body.6 6
UCS alleges that in three instances the Commission has abused its discretion by applying cost considerations in specific cases where licensees are in compliance but adequate protection is at stake.
However, UCS is misinformed about the first of the three cases, and its
- allegations about the other two reduce simply to disagniement over what constitutes adequate protection. We briefly discuss thin three cases balow.
I Citing trade journal articles which quote unnamed (RC sources, UCS l claims that the backfit rule caused the NRC staff to ctange its mind about requiring two licensees to conduct certain inspeutions and analyses in order justify continued operations. The two plant in question had l
reactor pump coolant shafts similar to ones which elswhere had shown a d
UCS asserts high p[robability of shearing off under certain cont itions.that " w]e ... learn from circularity embedded in the rule: NRC is prevented, by operation of the rule, from asking questions needed to learn the degree of risk of a known equipment problem because they do not know the answers in advance."
However, the facts of the situations were not what UCS alleges them l to have been; indeed the backfit rule was not involved. Letters were sent on April 23, 1986 requiring the licensees to submit within 20 days infonnation which would "enable the Comission to detennine whether or not[their] license [s]shouldbemodified." Such information included infonnation on design, operational history, schedules for inspection, plans for operator training, and "any analysis perfonned subsequent to l
those done for the FSAR [ Final Safety Aralysis Report] which would l address the consequences of a locked rotor or broken shaft event during
[FootnoteContinued]
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17 Nothing in the Court's ruling in UCS v. NRC forbids the Comission's ;
approach to "adequate protection". UCS boldly asserts that the proposed j rule "completely fai1[ed] to comport with the orders and directions of
[FootnoteContinued]
plant operation." These letters were sent under the first part of 10 CFR 50.54(f). This part authorizes such infonnation requests without consideration of cost. As an earlier draft of the April 23 letter available in the NRC's Public Document Room shows, the NRC had planned to ask for new analyses under a later part of 5 50.54(f) which authorizes requests not required to assure adequate protection if "the burden to be imposed ... is justified in view of the potential safety significance of the issue to be addressed in the requested infonnation." 10 CFR 50.54(f). (This "safety significance" standard, by its emphasis on "potential", requires less than is required by the "[ actual] substantial increase" standard in the backfit rule and also avoids the circularity UCSalleges.) However, the staff sensibly opted for first asking whether such analyses had already been done. In fact they had, or were unde may when the lettsrs were sent. The backfit rule played no part here.
UCS' second instance of alleged abuse involves the Mark I containment, about whose perfonnance in beyond-design-basis accidents (ones which involve damage to the reactor core) there is substantial uncertainty. UCS asserts that cost considerations have blocked staff action which would have brought about a significant reduction in some of
( . the figures which estimate the probability that the Mark I would fail in certain kinds of beyond-design-basis accidents. UCS adds in passing that those figures represent undue risk. The NRC staff has already made a formal reply to similar charges of undue risk. See, e.g., Boston Edison Co. (Pilgrim Nuclear Generating Station) Interim Director's Decision under 10 CFR 2.206, 00-87-14, 26 NRC 87,95-106 (1987). Suffice it here to say that the NRC staff has by no means completed its considerations of the Mark I containment, but that, given present infonnation, the staff has concluded that overall severe-accident risks at plants with Mark I containmehts are not undue. Id. at 104-106. UCS is content to put fomard only unsupported assertions to the contrary. Thus the staff may legitimately consider cost when deciding whether to backfit the Mark I contiinments.
905' third allegation of abuse rehearses part of its February 10, 1987 5 2.206 Petition to the Comission for imediate action to relieve allegedly undue risks posed by nuclear power plants designed by the Babcock & Wilcox Company. The NRC's Director of Nuclear Reactor Regulation responded fully to the Petition, denying it, on October 19, 1987 (UCS' coments on the proposed backfit rule were submitted on October 13). See Director's Decision Under 10 CFR 2.206, DD-87-18, 26
[FootnoteContinued]
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18 the Court of Appeals in UCS v. NRC", that the Court "could not have been more clear about the defects of the backfit rule", that the proposed revised rule "suffers from the exact same defects" as the one vacated, that, indeed, "the new proposal is even more devoid of objective guidance or criteria ... than was its predecessor."
UCS' criticisms are based on part of a single paragraph in the Court's decision. In pertinent part, that paragraph says, "... In our
( view, the backfitting rule is an exemplar of ambiguity and vagueness; indeed, we suspect that the Comission designed the rule to achieve this very result. The rule does not explicate the scope or meaning of the three listed ' exceptions'. The rule does not explain the action the Comission will [in italics] take when a backfit falls within one of these exceptions. In short, the rule does not speak in tems that constrain the Comission from operating outside the bounds of the statutory scheme." 824 F.2d at 119.
UCS says that this portion of a paragraph was an "order" by the Court to get the Comission to "stop trying to obscure its intentions i through ambiguous and vague language ... ." Whether the Court's language i amounts to an "order" or only strong advice, we have followed it. For one thing, the rule explicitly says that backfits falling within the exceptions will be imposed (inexplicably, UCS asserts that the proposed I
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[FootnoteContinued]
NRC (October 19,1987). The Director concluded that "there are no substantial health and safety issues that would warrant the suspension or revocation of any license or pemit for such facilities." Slip Opinion
[ Footnote Continued]
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19 rule did not have this provision). See i 50.109(a)(4). For another, both in what we have already said, and in what we shall be saying in response to NUBARG's comments on the exceptions provisions, we shall have explicated the scope and meaning of the three listed exceptions.
However, we have not taken the quoted language of the Court to mean that, after years of making rules and adjudicating cases which ultimately depend on the Comission's judgment about what "adequate protection" requires, the Comission should be obliged to give a mechanically applicable definition of "adequate protection" in order to avoid using the time-honored method of case-by-case, precedent-guided, judgment to implement only a part of the backfit rule. Certainly, the Court never even noted a lack of a general definition of "adequate protection" in the rule, let alone "ordered" the Comission to provide such a definition.
UCS' position lacks all sense of proportion. We must emphasize the core of the Court's decision, rather than get bogged down by transforming a suspicion and a few criticisms of the rule into an order to undertake an unprecedented task of definition.
! Reviewing the exceptions in the rule, and various statements in the 1
Federal Register notice accompanying the rule, the Court said, "We conceivably could read the terms of this rule to comply with the statutory scheme we have described above [that is, a scheme in which economic costs can play no part in establishing what adequate protection l [FootnoteContinued]
at 63. Simply because UCS disagrees with such conclusions does not mean that the Comission is misusing the "adequate protection" standard.
t
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t 20 requires]." Id. Moreover, the Court says this despite the lack of any sumary, general, "objective" definition of "adequate protection" in the rule.
But the Court then went on to say, "Statements that the Comission has made in promulgating the rule and in defending it before this court, however, disincline us from interpreting the rule in this fashion." Id.
Again, it is not the lack of a deffriition of adequate protection that disinclined the Court from saving the rule, but rather certain statements
(
the Comission had made which seemed to suggest that the Comission might consider economic cost when deciding what adequate protection required.
The Three Exceptions Echoing the Court's remark that the rule "does not explicate the scope or meaning of the three listed ' exceptions'", id., NUBARG "believes that there is a substantial amount of overlap in these
( exceptions and that they have not been adequately defined or explained in the proposed rule." NUBARG and others representing the industry are concerned that the two exception provisions which use the phrase "adequate protection", il 50.109(a)(4)(ii) and (iii), may "swallow" the rule. One industry comenter objects to the notion, implied by i 50.109(a)(4)(ii), that adequate protection might require more than compliance. Anotherisconcernedthati50.109(a)(4)(iii),theexception which has been added in response to the Court's ruling, might lead to redefinitions of "adequate protection" that would threaten loss of licenses.
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21 To avoid these results, NUBARG and others recomend deleting one of the two exception provisions which use the phrase "adequate protection".
NUBARG's choice is i 50.109(a)(4)(ii), retained from the 1985 version of the rule, where it used the equivalent phrase, "no undue risk". This section provides that the "substantial increase" and "costs justified" standards will not apply to backfits necessary to provide adequate -
protection to public health and safety. NUBARG calls this provision redundant to the exception for backfits required for the sake of compliance, i 50.109(a)(4)(1). As was noted above, NUBARG reports that its research has uncovered no case in which the Comission "has recognized that some additional measures not contained ia existing requirements are necessary to ensure that a facility continues to meet the current level of adequacy." Two other comenters believe that the exception provision added because of the litigation, i 50.109(a)(4)(iii),
should be deleted, as being redundant to the provision NUBARG would like i
to see deleted.
No matter which of the two provisions the connenter would like to see deleted, the connenter would like some restrictions placed on the use of the remaining one. The restriction by far the most frequently proposed is that no action may be taken under the remaining exception provision in the absence of "significant new infonnation or the occurrence of an event which clearly shows" that the action is necessary.
In sum, these comenters either reopen an issue settled in 1985 or they recomend deleting that part of the nale which directly responds to 1
the Court's ruling. We take neither course, for, even putting the 1985 rule and the Court's ruling aside, if either of the two provisions were 1
[7590-01) 22 to be deleted, an essential power of the Comission would be remain unimplemented.
First, the exception for backfits necessary to secure adequate protection, i 50.109(a)(4)(ii), must be retained, because it must be made clear that Comission action is not to be obstructed by cost considerations in a situation where compliance has indeed proved to be insufficient to secure the level of protection presumed in the rule, I order, or comitment in question. Despite the results of NUBARG's research, such situations have arisen. See, e.g., SECY-86-346, "Evaluation of Managing Plant-Specific Backfit Requirements",
November 21, 1986. Accordingly, this exception provision is not redundant to the exception for backfits necessary to restore compliance.
Neither is it redundant to the exception for backfits involving the defining or redefining of "adequate protection", for the latter exception assumes some change in the NRC's judgment of what level of protection
( should be regarded as "adequate".
Retaining 9 50.109(a)(4)(ii) will not give the Comission the power to proclaim at will that compliance is not enough. As we said in the statement of considerations accompanying the 1985 rule, and have in part l.
I reiterated in the response to UCS' consnents, the regulations, though they do not define "adequate protection", are presumed to ensure it, and, in the absence of a redefinition of "acaquate protection", that presumption can be overcome only by significant new infonnation or some showing that the regulations do not address some significant safety issue. "[I]tmay be presumed that the current body of NRC safety regulations provides adequate protection. Where new infonnation indicates that improvements
(7590-01) 23 are needed to ensure there is 'no undue risk' on ... a ... basis which the Comission believes to be the minimum necessary, such requirements must be imposed." (50 Frat 38101-102.)
Second, the exception provision for backfits which are necessary under a defining or redefining of "adequate protection",
f 50.109(a)(4)(iii), must be retained because it must be made clear that, as the Court held, cost may not be a factor in setting the level of protection judged as "adequate".7 As NUBARG acknowledges, citing Power Reactor Development Co. v. International Union of Electrical, Radio and Machine Workers, AFL-CIO, 367 U.S. 396, 408 (1961), the Comission has both the power to define "adequate protection", and the power to re-define it.8 Without this last exception provision, it might appear from the rule either that the Comission had no such power or that it was restricted by cost considerations, contrary to the Court's ruling. Ncr should this exception provision be limited to situations involving "significant new information", as proposed in several coments, f
f 7As the rule notes in i 50.109(a)(7), cost may nonetheless be a consideration in choosing the means of achieving "adequate protection".
8The words "defining or redefining" in this third exception should not be construed necessarily to mean "providing a useful and generally cpplicable definition", at least not until such a definition becomes possible. Under present conditions, the Comission will have "defined or redefined what level of protection is to be regarded as adequate" if it makes a judgment that, although compliance assures the level of protection that had been thought of as adequate, that level of protection should no longer be considered adequate.
I .
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24 This last exception may be thought by some to threaten to swallow the backfit rule. We believe, however, that instances of backfits based on a "redefinition" of "adequate protection" will be rare. Moreover, the case-by-case approach which is required in the absence of a general definition of "adequate protection" provides licensees -- and the public
-- a large ineasure of protection from arbitrary action by the Comission.
Citing case law, NUBARG says that, in applying this last exception provision, the Comission "must act rationally and consistently in light
( of available evidence", and "must apply a reasoned analysis indicating the prior policies and standards are being changed, not casually ignored ... ." We wholly agree, and believe that the approach envisioned by the backfit nJle will facilitate the Comission's acting accordingly.
Other Matters Two other cocinents bearing on the phrase "adequate protection" f require an explicit response. First, several consnenters from the industry would prefer that the rule state that the "documented evcluation" which the NRC must prepare in connection with any action under one of the exception provisions, see i 50.109(a)(4), should include consideration of as many of the factors which i 50.109(c) requires of a "backfit analysis" as are appropriate.
The suggested inodification of the rule would have only limited utility. Few of the factors listed in i 50.109(c) of the rule are appropriate for consideration in a documented evaluation justifying l
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J 25 action under the compliance exception in the rule. It is true that several of the factors in i 50.109(c), indeed, all of them but those in paragraphs (c)(5) and (7) and some of those in paragraph (c)(8) are appropriate for consideration under the "adequate protection" exception, to the extent that they require a showing of exactly what the licensees must do and a showing that the backfit in question actually contributes to safety. However, the Comission believes that the rule's requirement that the documented evaluation "include a statement of the objectives of
( and reasons for the modification and the basis for invoking the exception" adequately assures that the factors in 5 50.109(c) will be considered to the extent relevant, without their being listed and labeled as if they were a part of a 550.109(c) analysis. Thus, little, if anything, is to be gained by an expiteit requirement that i 50.109(c) factors be considered in a documented evaluation.
Second, one citizens' group asserts that the backfit rule should not apply to rulemaking. This issue was thoroughly discussed in 1985.
However, this group's coment puts the issue in a slightly altered light,
[
and provides another opportunity to clarify the meaning of "adequate protection". The group argues that since rules "define" "adequate protection", the Comission cannot apply the rule's "substantial increase" and "cost justified" standards in rulemaking without applying l
l
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26 cost considerations in setting the standard of adequate protection, contrary to the Court's holding.
The answer to this coment is, of course, that the rules do not, strictly speaking, "define" "adequate protection", and they only presumptively assure it. Not only may there, as stated above, be individual cases that require actions that go beyond what is necessary under the regulations to assure adequate protection, there will also be times when the NRC issues a rule which requires something beyond adequate
(
protection. This follows directly from the Comission's power under section 161 of the Atomic Energy Act, affirmed by the Court, to issue rules or orders to "minimize danger to life or property." See 42 U.S.C.
I 2201; see also USC v. NRC, 824 F.2d at 118. If a proposed rule requires something more than adequate protection, applying a cost standard to the proposed nile will not be introducing cost considerations into the setting of the adequate protection standard and is therefore pe mi tted. Of course if the rule is directed at either establishing what
(
level of protection is "adequate" or assuring that such a level of protection is met, then cost will play no role.
The backfit rule as set out below is substantially the same as the rule proposed iti the Federal Register. (See 52 FR 34223; September 10, 1987.) Provisions which appeared at the end of 950.109(a)(4)ofthe proposed rule, or in the footnote to that paragraph, appear below in new paragraphs (a)(5)through(7).
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27 Environmental Impact: Categorical Exclusion The NRC has detennined that this final rule is the type of action described in categorical exclusion 10 CFR 51.22(c)(3). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this final rule.
Papemork Reduction Act Statement This final rule does not contain a new or amended information I collection requirement subject to the Papemork Reduction Act of 1980 (44 U.S.C.3501etseq.). Existing requirements were approved by the Office of Management and Budget, Approval Number 3140-0011.
Regulatory Analysis The revision to 10 CFR 50.109 will bring it into conformance with the holding in Union of Concerned Scientists, et al., v. U.S. Nuclear Regulatory Comission, D.C. Cir. Nos. 85-1757and86-1219(August 4, i 1987). The revision clarifies the backfit rule to reflect NRC practice ,
that, in determining whether to adopt a backfit requirement, economic costs will be considered only when addressing those backfits involving safety requirements beyond those needed to ensure the adequate protection of public health and safety. Such costs are not considered when establishing the adequate protection of public health and safety. This revised rule does not have a significant impact on State and local governments and geographical regions, public health and safety, or the environtrent; nor does it represent substantial costs to licensees, the
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28 NRC, or other Federal agencies. This constitutes the regulatory analysis for this rule.
Regulatory Flexibility Act Certification In accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C.
6 605(b), the Consnission hereby certifies that this final rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. The affected facilities are licensed under the provisions of 10 CFR 50.21(b) and 10 CFR 50.22. The companies that own these facilities do not fall within the scope of "small entities" as set forth in the Regulatory Flexibility Act or the Small Business Size Standards set forth in regulations issued by the Small Business Administration in 13 CFR Part 121.
Backfit Analysis .
The NRC has determined that a backfit analysis is not required for l.
this rule because it does not impose requirements on 10 CFR Part 50 licensees.
List Of subjects In 10 CFR Part 50 Antitrust, Classified information, Fire prevention, Incorporation by reference. Intergovernmental relations, Nuclear power plants and reactors, Penalty, Radiation protection Reactor siting criteria, Reporting and Recordkeeping requirements.
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act
- . - . _ _ . _ ~ .
1
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29 of 1974, as amended, and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR Part 50.
Part 50 - Domestic Licensing Of Production And Utilization Facilities
- 1. The authority citation for Part 50 is revised to read as follows:
AUTHORITY: Secs. 102, 103, 104, 105, 161, 182, 183, 186, 189, 68 Stat. 936, 937, 938, 948, 953, 954, 955, 956, as amended, sec. 234, 83 Stat. 1244, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2201, 2232, 2233, 2236, 2239, 2282); secs. 201, as amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846).
Section 50.7 also issued under Pub. L.95-601, sec.10, 92 Stat. 2951 (42 U.S.C. 5851). Section 50.10 also issued under secs. 101, 185, 68 Stat. 936, 955, as amended (42 U.S.C. 2131, 2235); sec. 102, Pub. L.91-190, 83 Stat. 853 (42 U.S.C. 4332).
! Sections 50.23, 50.35, 50.55, and 50.56 also issued under sec.185, 68 Stat. 955 (42 U.S.C. 2235). Sections 50.33a, 50.55a and l
Appendix Q also issued under sec.102, Pub. L.91-190, 83 Stat. 853 (42U.S.C.4332). Section: 50.34 and 50.54 also issued under sec. 204, 88 Stat. 1245 (42 U.S.C. 5844). Sections 50.58, 50.91, and 50.92 also issued under Pub. L.97-415, 96 Stat. 2073 (42 U.S.C.
2239). Section 50.78 also issued under sec.122, 68 Stat. 939 (42 U.S.C.2152). Sections 50.80-50.81 also issued under sec.184, 68 Stat. 954, as amended (42 U.S.C. 2234). Section 50.103 also issued under sec.108, 68 Stat. 939, as emended (42 U.S.C. 2138).
1
1
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30 l Appendix F also issued under sec.187, 68 Stat. 955 (42 U.S.C.
2237).
For the purposes of sec. 223, 68 Stat. 958, as amended (42U.S.C.2273);il50.10(a),(b),and(c), 50.44, 50.46, 50.48, 50.54, and 50.80(a) are issued under sec.161b, 68 Stat. 948, as amended (42 U.S.C. 2201(b)); il 50.10(b) and (c), and 50.54 are issued under sec. 1611,68 Stat.949,asamended(42U.S.C.
I 2201(1));andil50.9,50.55(e),50.59(b),50.70,50.71,50.72, 50.73, and 50.78 are issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201(o)).
- 2. Section 50.109 is revised to read as follows:
i 50.109 Backfitting.
(a)(1) Backfitting is defined as the modification of or 7
addition to systems, structures, components, or design of a facility; or the design approval or manufacturing license for a facility; or the procedures or organization required to design, construct or operate a facility; any of which may result from a new or amended provision in the Comission rules or the imposition of a regulatory staff position interpreting the Commission rules that is either new or different from a previously applicable staff position after:
[7590-01]
31 (i) The date of issuance of the construction oermit for the facility for facilities having construction pemitt issued after October 21, 1985; or (ii) Six months before the date of docketing of the operating license application for the facility for facilities having construction permits issued before October 21, 1985; or .
(iii) The date of issuance of the operating license for the
( facility for facilities having operating licenses; or (iv) The date of issuance of the design approval under Appendix M, N, or 0 of this part.
(2) Except as provided in paragraph (a)(4) of this section, the Comission shall require a systematic and documented analysis pursuant to paragraph (c) of this section for backfits which it seeks to impose.
(3) Except as provided in paragraph (a)(4) of this section, the Comission shall require the backfitting of a facility only when
{
it detemines, based on the analysis described in paragraph (c) of this section, that there is a substantial increase in the overall protection of the public health and safety or the comon defense and security to be derived from the backfit and that the direct and indirect costs of implementation for that facility are justified in view of this increased protection.
(4) The provisions of paragraphs (a)(2) and (a)(3) of this section are inapplicable and, therefore, backfit analysis is not required and the standards in paragraph (a)(3) of this section do not apply where the Comission or staff, as appropriate, finds and
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32 declares, with appropriate documented evaluation for its finding, either:
(1) That a modification is necessary to bring a facility into compliance with a license or the rules or orders of the Comission, or into conformance with written comitments by the licensee; or (ii) That regulatory action is necessary to ensure that the facility provides adequate protection to the health and safety of
( the public and is in accord with the comon defense and security; or (iii) That the regulatory action involves defining or redefining what level of protection to the public health and safety or comon defense and security should be regarded as adequate.
(5) The Comission shall always require the backfitting of a facility if it detemines that such regulatory action is necessary to ensure that the facility provides adequate protection to the health and safety of the public and is in accord with the comon defense and security.
(
(6) The documented evaluation required by paragraph (a)(4) of this section shall include a statement of the objectives of and reasons for the modification and the basis for invoking the exception. If imediately effective regulatory action is required, then the documented evaluation may follow rather than precede the regulatory action.
(7) If there are two or more ways to achieve compliance with a license or the rules or orders of the Comission, or with written licensee comitments, or there are two or more ways to reach a level of protection which is adequate, then ordinarily the applicant or
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33 licensee is free to choose the way which best suits its purposes.
However, should it be necessary or appropriate for the Commission to prescribe a specific way to comply with its requirements or to achieve adequate protection, then cost ray be a factor in selecting the way, provided that the objective of compliance or adequate protection is met.
(b) Paragraph (a)(3) of this section shall not apply to backfits imposed prior to October 21, 1985.
(c) In reaching the determination required by paragraph (a)(3) of this section, the Conunission will consider how the backfit should be scheduled in light of other ongoing regulatory activities at the facility .nd, in addition, will consider information available concerning anv of the following factors as may be appropriate and any other ir.
. ition relevant and material to the proposed backfit:
(1) Statement of the specific objectives that the proposed backfit is designed to achieve; (2) General description of the activity that would be required by the licensee or applicant in order to complete the backfit; (3) Potential change in the risk to the public from the accidental off-site release of radioactive material; (4) Potential impact on radiological exposure of facility employees; (5) Installation and continuing costs associated with the backfit, including the cost of facility downtime or the cost of construction delay;
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