ML20236A044
| ML20236A044 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Arkansas Nuclear, Three Mile Island, Crystal River, Maine Yankee, 05000000 |
| Issue date: | 10/13/1987 |
| From: | Weiss E HARMON & WEISS, UNION OF CONCERNED SCIENTISTS |
| To: | |
| Shared Package | |
| ML20236A006 | List: |
| References | |
| FRN-52FR34223, RULE-PR-50 52FR34223-00005, 52FR34223-5, NUDOCS 8710210349 | |
| Download: ML20236A044 (71) | |
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. n Uh LOctober 13,'1987 UNION:OF. CONCERNED' SCIENTISTS' h '* ' <
' COMMENTS ON PROPOSED REVISION OF BACKFITTING' H- ~ PROCESS FOR' POWER REACTORS, 52 IED. BEG. 34223- i
> Introduction The Union of Concerned Scientists (UCS) submits 1these com-1 I ments iniresporne.to the Nuclear Regulatory Commission's most t: recent-issuance of a notice of proposed rule for backfitting of- .
V L nuclear power plants. 52 Fed. Reg. 34223. (Sept. 10, 1987). The H , comments contained herein are'to those provisions proposed by the NRC in response to the order of the United States' Court of-Appeals'for the District of Columbia'in Union of Concerned L Scientists v.'U.S. NRC.-No. 85-1757 (D.C. Cir. Aug. 4, 1987) . (hereinafter "UCS v. NRC"). In' addition, UCS once again restates
~its previous detailed comments on the prior proposals in the series'en backfits. " Comments of the Union of Concerned Scientists on Proposed Revision of the Backfitting Process for Power Reactors", ANPR 48 Fed. Reg. 44217, Oct. 28, 1983; " Comments by Union of Concerned Scientists on' Revision of Backfitting Pro-cess for Power Reactors", 49 Fed. Reg. 16900, June 4, 1984;
" Union of Concerned Scientists Comments on. Proposed 'Backfit' Rule", NPR 49 Fed. Reg. 47034, Nov. 30, 1984. Since the Court of
. Appeals vacated the entire backfit rule without reaching any of Lthe criticisms raised by UCS other than that dealing with whether use of cost benefit analysis in deciding whether to impose a backfit was consistent with the Atomic Energy Act, those remain-ing criticisms are still at issue and UCS once again makes those 8710210349 871013 PDR PR '
50 52FR34223 PDR u__ __ _____ __ _ _ _ _ _ j
I I other arguments. Those. comments are attached and incorporated herein and will not be repeated.1 The ProDosed Rule Is No Less Vaaue and Standardless Then The Rule Struck Down By The Court Despite the NRC's stated goal of bringing the backfit rule into compliance with the D.C. Circuit's decision, the latest pro-posed rule completely fails to comport with the orders and direc-tions of the Court of Appeals in UCS v. NRC. In that decision the Court held that the NRC may not take economic costs into > account in fulfilling its statutory mandate to ensure adequate protection of the public health and safety. Slip op, at 20. The Atomic Energy Act is clear that costs may not be considered in .. either establishing or enforcing the level of adequate protec-tion. 141 In its consideration of the NRC's rule and in its determination that the NRC rule was not in conformity with the governing statute, the Court of Appeals was troub' led by the vague,. general, and ambiguous phrasing of the cost benefit rule and its exceptions. The rule could be read in several ways, some of which directly conflicted with statutory language and direc-tion. Further, statements made by the NRC led the Court to ques-tion the NRC's commitment to the statutory principal of ensuring adequate protection of public health and safety regardless of i 1 In its decision the Court of Appeals vacated the entire back-fit rule. Slip op. at 25. In its latest proposed rule, the i NRC has only repromulgated one part of that rule, apparently ( as an amendment to the previously enacted rule, and failed to l publish and repromulgate the rule in its entirety. For that l reason, the notice issued by the NRC is technically defective. l J
l economic cost. The Court of Appeals could not have been more clear about the defects of the backfit rule: l (T]he backfitting rule is an exemplar of ambiguity and
. vagueness; indeed, we suspect that the Commission designed )
the rule to achieve this very result. The rule does not explicate the scope or meaning of the three listed "excep-tions." The rule does not explain the action the Commission I will take when a backfit falls within one of these excep- ] tions. In short, the rule does not speak in terms that con- ; strain the Commission from operating outside the bounds of ! the statutory scheme. Slip op, at 24-25. It thus was exactly the ambiguity and vague-ness of the original rule that compelled the court to vacate it. l The new proposed rule suffers from the exact same defects as j i the one struck down by the Court of Appeals, and, therefore, is { similarly deficient. The rule reviewed by the Court of Appeals - contained the following exception to the requirement of cost benefit analysis in footnote 3 to 550.109(a) (4) (ii) : 1 For those modifications which are to ensure that the facility poses no undue risk to the public health and safety and which are not deemed to require immediately effective regulatory action, analyses are required; these analyses, however, should not involve cost considerations except only insofar as cost contributes to selecting the solution among various acceptable alternatives to cnsuring no undue risk to public health and safety. What little explanation was provided by the NRC about the meaning of this footnote was contained in the Statement of Particulars accompanying the final rule. 50 Fed. Reg. 38,097 (Sept. 20, 1985). In one pcragraph the NRC stated that "[t]he costs associ-ated with proposed new safety requirements may be considered by the Commission provided that the Atomic Energy Act finding 'no undue risk' to the public health and safety can by made." Id. at 38,101. In another paragraph the NRC similarly stated that i L____ _
L - f l' l l "the cost of new safety requirements will not be considered where
.such requirements are necessary to ensure there is no undue risk
~
to the public health and safety and no alternatives are avail-l able." IdA at 38,102. The NRC further stated that "[t]he con-sideration 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 level of, protection," but elsewhere stated that "there is no intent on the part of the Commission to include within the scope of the exception new or modified interpretations of what con- j I
stitutes no undue risk to the public health and safety." 141 at l 38,103. - In its effort to conform to the order of the Court of Appeals, the NRC has added a new exception, 5 50.109 (a) (4) (iii) , stating that cost benefit analysis will not be used in circum-stances where the regulatory action " involves defining or redefining what level of protection to the public health and safety or common defense and security should be regarded as ade-quate." This revision is merely a declaration of the Court of Appeal's holding, that the NRC may not use cost benefit analysis where establishing the level of adequate protection. The new rule is not one bit less vague or ambiguous than the previous ; one. Once again it does not explicate the scope or meaning of the listed exceptions; it does not explain the action the NRC will take when a backfit falls within one of these exceptions; it gives no guidance to the public and to those regulated as to when l b
l < .i I' ' _5_ in fact regulatory action involves " defining or redefining" an adequate level of protection; it gives no guidance or criteria as to ' what constitutes aut " adequate" level of protection, as opposed to a "beyond adequate" level of protection. "In short, the rule
;does not. speak in terms that constrain the Commission from opera-ting'outside the bounds of the statutory scheme." Slip op. at
- 25. 'Indeed, the little detail previously contained in the back-fit rule on this issue, that found in the Statement of Particu-lars, has been eliminated from the new proposal. The NRC has made no-effort to address the serious concerns of the court of Appeals about vagueness, ambiguity, and absence of guidance, and therefore the proposed rule is not in conformity with the 'UCS v. -
HBC decisiun.- Instead of enunciating criteria and guidelines, what the proposed rule actually does'is mask the fact that the key determination abcut application of the cost benefit rule is being left to the totally unguided and unrestrained discretion of the agency. The 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 I needed to ensure adequate safety or constitutes going bevond safety. In other words, to know whether a situation fits within the rule or within the exception, one must know whether an ade-quate or a "beyond adequate" level of safety is being defined. [ But absolutely no standards at all are articulated in the pro- j posed rule about how the agency will determine that the adequate
as opposed to the beyond adequate protection level has been affected. Such a determination requires that the degree and nature of the risks involved first be assessed. The proposed j rule is simply silent on the criteria for that critical agency decision. It is only after this key analysis has been made, that the rule as currer.tly proposed comes into play. It is, thus, y only after the agency has exercised its unguided and unexplained discretion that the rule as now proposed is even relevant. But, it is the process by which the agency reaches the determination to apply the rule or the exception that requires explication and the use of objective criteria. Such explication is what the Court of Appeals ordered in EgS v. NRC in vacating the prior - vague and ambiguous rule and remanding it to the NRC. The Court of Appeals decision required that the NRC articulate standards exactly because the Court did not want the agency hiding its dis-cretionary decisions, here the decision as to whether an adequate or beyond adequate level of protection is implicated, in a vague 4 and ambiguous rule. By hiding the real criteria for determining l 1 whether rule or exception applies, the NRC is ignoring the order of the D.C. Circuit. j This order of the Court of Appeals in UCS v. NRC that the l NRC articulate standards, be more faithful to the statutory pro- l visions it must apply, and stop trying to obscure its intentions 1 through ambiguous and vague language (slip op. at 24-25), derives from the basic administrative law principle that discretionary power on the part of an agency must be confined, structured, and ) f
a: ,s checked. One means'of controlling unbridled agency discretion is by~having an agency l develop guiding rules or standards-for.its
'decisionmaking processes. See cenerally 1K. Davis, Administra-tive Law Treatise 52:13 (1978). In the' absence of articulated standards to. guide agency decisionmaki~ng, not only are the public and'those1 regulated' uninformed about crucial policies affecting them, but they are also in danger of arbitrary and inconsistent agency action.- >
The general purpose of a rulemaking proceeding is."to fill in the interstices of (a statute]." SEC v. Chenery Coro., 332 U.S. 194, 202 (1947). Thus, Congress often leaves to'an agency the discretion of how to implement very general statutory direc - tives. The premise supporting Congressional and judicial approval of substantial agency discretion is that the agency, through the.rulemaking and administrative process, will gradually fill in the areas of' uncertainty with specific rules. See, e.a., Atlas Cooco v. EPA, 642 F.2d 458, 465 (D.C. Cir. 1979); NRLB v. Bell AerosDace Co. Division of Textron,.416 U.S. 267, 290-95 (1974). As the Court of Appeals found in UCS v. NRC with respect to the Atomic Energy Act, Congress left it to the NRC to determine what constitutes an adequate level of protection of the public health and safety and also to determine when the defini-tion of an adequate level of protection is at issue. Thus, the NRC has discretion, subject to court review, to define what risks are acceptable for adequate protection. But although the agency has discretion in defining the level of adequate protection, it
( , is expected that it'will exercise that discretion in accordance with some set'of' articulated standards, in some reasoned way, so as to ensure against administrative arbitrariness. Increasingly,. courts have imposed a check against this risk of unfettered discretion and Administrative arbitrariness by requiring that agencies articulate the factors on which they' base their decisions. The development of articulated standards has been found to be particularly important where agency action
~
" touches on fundamental interests in life, health, and liberty" for "[t]hese interests have always had a special claim to judi-cial protection, in comparison with the economic interests at stake in a ratemaking or licensing proceeding." Environmental -
Defense Fund v. Ruckelshaus, 430 F.2d 584, 598 (D.C. Cir. 1971) (suspension of a pesticide registration implicates fundamental interests).- Environmental interests, like those at issue here, have repeatedly been recognized as fundamental ones affecting the lives and health of all. See. e.a., Maryland National Caoital Park and Plannina Commission v. U.S. Postal Service, 487 F.2d 1029, 1039 n. 7 (D C.Cir. 1973). Indeed, in the circumstances here, where the precise reason for considering the backfitting of a nuclear power plant is protection of safety and public health, a check against administrative arbitrariness by the articulation of standards on the part of the NRC is crucial to fundamental personal and public interests. Once these interests are affected, To protect these interests from administrative arbitrariness, it is necessary, but not sufficient, to 0
_9_ insist.on strict judicial scrutiny of administrative action. For judicial. review alone can correct only the most. egregious abuses. Judicial review must. operate to ensure that the administrative process itself will confine and con-
. trol the. exercise of discretion. Courts should recuire administrative officers to articulate the standards and orincioles that covern their discretionary decisions in as_
much detail as nossible. EDF'v. Ruckelshaus, 430 F.2d at 598 -(emphasis added) (footnotes omitted). In addition to the court in EDF v. Ruckelshaus,-a case involving a petition for suspension of pesticide registration, where agency decisions have impinged upon: fundamental personal interests, numerous other courts have similarly required articu-lated standards from agencies so as to ensure fairness and free-dom 'from arbitrary decisionmaking. See. e.a., White v. Rouahton, 530 F.2d 750, 753 (7th Cir.1976) (freedom from arbitrary deci-sionmaking requires the establishment of written standards and regulation to govern grant of general assistance benefits); Silva
- v. Secretary of Labor, 518 F.2d 301, 310 (1st Cir. 1975) (criti-cizing absence of standards for certification of alien agricul- ,
I tural' workers); Holmes v. New York City Housina Authority, 398 F.2d 262, 265 (2d Cir.1968) (absence of standards for allocation ! of public housing would involve absolute and uncontrolled discre-tion and lead to intolerable invitation to abuse); Historic Green Sorinas. Inc. v. Beraland, 497 F. Supp. 839, 851-57 (E.D. Va. 1980) (historic landmark designations) . Further, these decisions requiring the promulgation of standards as a check on agency dis-cretion are of the same class as the countless number of addi-tional cases more generally requiring that an agency give suffi- i cient indication of the grounds for its exercise of discretion so
I that a reviewing court can meaningfully appraise the agency's reasoning and. determine whether agency action is in accordance l with law. See. e.a.,. Motor Vehicles Manufacturers Association v. State Farm Mutual Automobile Insurance'Co.,.463 U.S. 29, 48-49, (1983); Camo v. Pitts, 411 U.S. 138 (1973); Matlovich v. Secre-tarv of the Air Force, 591 F.2d 852, 857 & n.11 (D.C. Cir. 1978) and cases cited therein. For the same reasons--to exercise con-trol over the agency's discretion, to keep in public and judicial i view the decision on backfitting, to allow meaningful judicial review--the court in UCS v. NRC likewise directed that-the NRC articulate the criteria for its decisions about backfitting. The lesson of these decisions is that the rules promulgated.. by the NRC in the backfit proceedings should lay out the neces-sary criteria and guidelines. It would be insufficient to satisfy the concerns of unbridled agency discretion if the NRC in effect promulgated its standards for the exercise of its deci-sions solely within the NRC's manual chapter on plant specific backfitting. This possibility is suggested, however, by the cur-rent notice which states that the staff manual chapter will be revised and issued following adoption of a final backfit rule. Therc are two reasons the agency cannot proceed in this manner. First, vague and ambiguous regulations cannot be enacted, and then subsequently clarified in internal manuals. Cf. Saint Fran-cis Memorial Hosoital v. Weinberaer, 413 F. Supp. 323, ~330 (N.D. j i Calif. 1976) (where secretary has authority and duty to promulgate j regulations governing Medicare reimbursement to hospital, l
_ 11 _ insufficient to enact ambiguous regulations and thereafter ' clarify them behind closed doors). Second, if it is in the manual that the agency intends to provide the necessary guidance i or criteria for implementation of the backfit rule, then the manual must be made available for public comment and scrutiny as an essential element of the rule. 1 Essentially, what the Court in UCS v. NRC has striven to ensure in ordering the NRC to enact a clear and unambiguous rule governing backfitting which contains articulated standards, is that "the agency, given an essentially legislative task to per- r form has carried it out in a manner calculated to negate the dangers of arbitrariness and irrationality in the formulation of.- rules for general application in the future." Automotive Parts & Accessories Association v. Bayd, 407 F.2d 330, 338 (D.C. Cir. 1968) (review of order under National Traffic and Motor Vehicle Safety Act). The order of the Court of Appeals sought to ensure i that the NRC's decision will be the product of reasoned thought and based upon a consideration of relevant factors. See , J Soecialty Eauioment Market Association v. Ruckelshaus, 720 F.2d 124, 132 (D.C. Cir. 1983). The rule currently proposed is arbitrary and subject to abuse in its vague and unguided formation. The UCS v. NRC deci-sion requires the NRC to modify the proposed rule so as to enun-ciate criteria and guidelines about what constitutes redefining and defining adequate protection levels, what constitutes an ade-quate as opposed to a beyond adequate protection level, and what l l
i i factors place a particular circumstance within the rule or within the exceptions. The current propcsed rule, like its predecessor, makes noL provision for_public participation in the critical determination of whether adequate or beyond adequate levels of protection are implicated. The public cannot participate when this key decision occurs before the regulations come into play. As UCS has argued in its previous comments, section 189(a) of the Atomic Energy Act and the APA unequivocally require notice and an opportunity to comment on such crucial licansing and rulemaking decisions. See Union of Concerned Scientists v. NRC, 711 F.2d 370, 380 (D.C. ( Cir. 1983). .. The ProDosed Rule Permits Aeolications Inconsistent with the Law As Exolicated By the Court NRC declared in proposing its new version of the backfit rule that "the Court's opinion regarding-the circ'umstances in which costs may be considered in making safety decisions on nuclear power plants is completely in accord with the way in which the Commission has always interpreted this rule..." 52 End. l The Commission Reg. 34223, cols. 2-3, September 10, 1987. maintains that it has no quarrel with the courts ruling that it may not " consider... economic costs in establishing standards to l ensure adequate protection of the public health," but that "once 1 an adequate level of safety protection had been achieved... . l (the Commission was fully authorized...to consider and take eco-nomic costs into account in ordering further safety improve-ments." Id., col. 2. i
I L
'As'noted above, the court ruled that the critical-distinc-
' tion:for' purposes of the Atomic Energy Act is whether:the'Commis-
- sion is deciding "the rangeLand scope'of safety measures.that- I adequate protection requires" (UCS v.'NRC,' Slip' opinion.at'20) or whether it is1considering measures. going beyond what is'necesary.
'Inithe former caso, costs cannot be considered. In the latter y case, they~can:(indeed, as we will show below, the cost-benefit I 1 analysis prescribed by NRC all but ensures that any backfit sub- I
. ject to the requirement'will not'be ordered.) NRC would codifyf this distinction by providing an-exception - there is to be no !
cost-benefit analysis when NRC is " defining or redefining" what is " adequate." .Since the rule itself provides no guidance, - criteria, or examples to indicate how an action under considera-tion is to be placed into one category or the other, and since 1 NRC has declared that the rule and the court's decision are "com-
.pletely in accord" with the agency's practice, the only source of I
enlightenment concerning how the-rule is to be interpreted and l used is NRC's current practice. i i l 1 I j j
4 To begin with, after diligent search, we have been unable to find'any instance where the NRC or the AEC has ever imposed any requirement on a licensee which it did not declare to be necessary to provide adequate protection" to the public health - and safety. Nor has NRC provided any examples. Thus, it appears
' that NRC has never used the authority which -the court found in the' Atomic Energy Act to impose' safety measures beyond the adequate protection standard.
Three recent examples of the use of NRC's cost-benefit backfit rule are illustrative of the~ Agency's current practice. The first began with the discovery in February, 1986, of cracks
- in the shafts of all four of the reactor coolant pumps at'the Crystal River-3 nuclear plant in Florida. Those 9,000 horsepower pumps are the means by which cooling water.is kept circulating through the reactor core. In January, 1986, one of the shafts ,
sheared off completely. Later inspection;ofmthe pumps discovered cracking in the bolts and torque pins that hold the propeller to the shaft. - Three other plants were found to have reactor coolant pumps of similar size and design made by the same manufacturer: Davis-Besse in Ohio, Maine Yankee and Arkansas Nuclear One. ! i Inspections of Davis-Besse showed that all four of its reactor coolant pump shafts were also cracked. Replacements were j immediately ordered and installed. However, the two other utilities refused to test their pump shafts.
"Inside NRC," the trade paper of the nuclear industry, reported in its issue of April 14, 1986 that NRC was ordering the j 1
two utilities to either inspect the pumps immediately or provide a technical analysis to prove that it was safe to continue to j l operate: 1
- j. NRC ORDERS PLANTS TO JUSTIFY DELAYING PUMP SHAFT TESTS Safety concerns stemming from the discovery of I
14 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ . _ __ l
[ I - eight cracked reactor coolant pump shafts in three months has prompted NRC to order Maine Yankee Atomic Power Co. and Arkansas Power & Light Co. (AP&L) to justify continuing operation of Maine Yankee and ) Arkansas.NucleartOne_1 ( ANO-1), respectively. Both units have reactor toolant pumps similar to those in j which shafts _ cracked at two other plants.
"We're in the process of sending letters out requiring licensees to justify continued operations,"
said an NRC staffer in the Office of Nuclear Reactor Regulation (NRR). "If they have .vidence that shafts might be cracked, we're asking tLem to look at it real
-hard and tell ms'if'there is~anything'that makes it unsafe to operate until the pumps can be inspected,"
the staffer said. "And if there is anything, we're asking them to tell us what they're going to do about it." Shutting down the plants to remove the pumps and test the shafts can be avoided, the staffer said, if Maine Yankee and AP&L can demonstrate a low probability that shaft failures would threaten safety, or if the utilities can propose modifying operations to lessen any potential safety threat from shaft failures. Emphasis added. . P Just two weeks later, the same trade paper recorded the agency's reversal: BACKFIT RULE CURTAILS NRC ACTION ON POTENTIAL SHAFT FAILURES NRC's backfit rule has led the Office of Nuclear Reactor Regulation (NRR) to back away from its decision to require two plants that may have cracked reactor coolant pump (RCP) shafts to conduct additional analyses of possible safety implications from shaft failures. NRR, prompted by safety concerns stemming from the l discovery of eight cracked pump shafts in the last four l months, planned to order Maine Yankee Atomic Power Co.
.and Arkansas Power & Light Co. (AP&L) to analyze potential safety implications of shaft failure. NRR wanted to require the analyses in ordering the utilities to justify continuing operations rather than shutting down Maine Yankee and Arkansas Nuclear One-1 (ANO-1) to check for cracked RCP shafts (INRC, 14 April, 4). Both plants have RCP's similar to those in which cracked shafts were discovered at Florida Power q Corp.'s (FPC) Crystal River-3 and Toledo Edison Co.'s Davis-Besse (Nuclecnics Week, 20 March, 3).
But NRR's concern that additional analyses could be considered a new NRC requirement - and therefore 15
l; .- L would have to be justified by a cost-benefit analysis i as required by the;backfit rule - led the staff to dropL l the requests for new anelyses. Instead, to avoid the ! possibility of having the request tied up by the l backf.it. rule,.NRR,.is_asking the two utilities to j provide uny 2nalysis performed subsequent to those prepared for final safety analysis reports (FSAR) for Maine Yankee and ANO-1, 1
'"Inside NRC", Apr; 28, 1986, p.11, emphasis added. j 1
. l "Thus, application of the cost-benefit analysis of the i bf.;kfit rule prevented the NRC from so much as directing these j utilities to provide an analysis showing that their plants could l be' safely operated despite a high probability of reactor coolant j pump shaft cracks.
Remembering that NRC claims that the new rule simply codifies its practice under the old rule, what can we learn from
~
this example? .i
- l. That when NRC.has actual experience of equipment problems at some plants, it cannot direct other similar plants to do a preventive inspection nor can it order them to provide a. l
. safety analysis without going through a cost-benefit I justification, since the safety analysis itself is considered a new NRC requirement covered by the backfit rule In the terms of the rule itself, this must mean that in NRC's interpretation, requiring a utility in such circumstances to do a safety analysis l 1s going beyond what is necessary for adequate protection of safety, since only those actions going beyond adequate protection
-call for cost-benefit justification. If this type of inquiry !
does not fall into the category as to which cost considerations are impermissible - which the court described as " establishing . and enforcing the level of adequate protection" (UCS v NRC, slip ] opinion at 22) - then what is included in that category? This example shows that NRC interprets the rule in a manner inconsistent with the Court's decision, i 16 _ _ _ _ _ _ _ _ _ _ _ - - - _ _ _ _ _ l
i.7 ,
'e..
} t -
y, .r< . y y ' 3< , i$ 2.- We also learn from this example'the inherint. m J. lack of a-
, logic and: circularity. embedded.in the rule: ~NRC is.'prepented; by operation ofLthe-rule, from asking. questions needed to learn the i
. degree af br.lsk Af a..known equipment problem because they do not- p/
know theisnswers in advance. ln order to justify the cost.of tr
.reird5rlbY tlie utilities to~do a safety analysis, ERC would have' ' ,'
- to:already %now the degree of the risk, since its. cost-benefit 'k methodology. measures banefit as the degree of risk averted. Hr
- Hence, one has to know the answer in order to justify asking tho ,
q'uestion~. y Y .
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; 8. g ',/ .ie/ Jl
't
' f' ',, ,1 l./ r .
~3. t Finally, we learn from this exampletthe degree of the chilling effect that the. pere existence of this vague, illogical, and ill-considered' rule has,had on the NRC staff. Here, the NRC staff was afraid to ask its licensees for so much as a safety ~};
analysis forifear that the licensees could demand a prior cost- J - i
' _b.enef.it -jlistIfication. Any rule which has -this affect is M1early
.i ,,
3 3 counter-productive-to-the protection of.the public safety and at od,dulwi'th the; fundamental premiss of the Atomic Energy'Actsthat
') '/'k public safety [in the " controlling consideration." Public Service Co. of Co,lorado, 4 AEC 214,216 (1969). -
6 j n LThe:second example involves the agency's consideration'of 1 measures designed to reduca,the risk of containment failure in a'I
~
severe accident for the U.S. plants which are known to be most vulnerable - the 24 boiling water reactors of the Mark I design v i built by GE. NRC's.most recent research, which simply confirms f( and quantifies what has been common knowledge for years - is l ' that, should a severe accident occur, the small, pressure- , suppression Mark I containment has up to a 90% probability of ) failure. Given.the inherent unreliability of probabilistic# risk
/i assessment techniques, it is probably most fair to say 3. hat, should a severe acciden't occur at one of these plants, the containment is as like'1y as not to fail,. See generally, NUREG' ,
c 17 l 1 1
'I i
/ i
.\ O
.-( l
,; 1150,.'" Reactor Risk Reference Document," Draft for Comment Feb.,
l-hZ 4987.
.[
. c.,. ' 9, , . Prior -to -the accident at Three Mile Island, TRC had i
Qy3MNI i n'enerally-responded to such concerns by taking the position that V, d7y severe . core damage events were so improbable as to be 1 C~"T9?Ancredible",'and that protection against the consequences.of T[ such events therefore need not be considered. This attitude was
, sf9erely . criticized by the ' President's Commission on the Accident
,j f'b b Three Mile Island (The "Kemeny. Commission") .
After.many years of operation'of nuclear power plants, n
' with no' evidence that any member of the general public has been hurt, the belief that nuclear power plants are
,sufficiently safe grew into a conviction. One must
-> (- y g ,. recognize this to understand why many key steps that could have prevented the accident at Three Mile Island were not taken. The Commission is-convinced that this
,] attitude must be changed to one that says nucicar power
' is by_its very nature potentially dangerous, and, one -
y'( jmust continually _ question whether the safeguards already in place are sufficient to prevent major ef ' accidents. Report of the President's Commission on The Accident at Three Mile Island, Oct. 1979, p. 9, emphasis added. It is' worth. noting in contrast to the currently popular (albeit inaccurate) characterization of NRC as an agency which was too quick to impose backfits on licensed plants, that the Kemeny Commission correctly criticized NRC for making too few l
"backfits" to licensed plants:
, ,, The old AEC attitude is also evident in reluctance to y also apply new safety standards to previously licensed
- t, plants.
Id. at 20. See also 53-54. l t i After the accident at-Chernobyl in April, 1986, two of NRC's top regulators decided that the time had come to do something to decrease the risk associated with the Mark I plants. Harold i 18 1 C 7 e
- [
- A Denton, the Director of the Division of Nuclear Reactor i Regulation and Robert Bernero, Director of Boiling Water Reactor Lirensing, devised a strategy of five modest safety improvements calculated to reduce -the :rlsk of a catastrophic radiation release j from a in 2 cora. melts to 1 An 50, a risk reduction of 25 times, s i see' attached slides, *. Discussion of a Generic' Letter on BWR i i Containment Performance," Robert M. Bernero, Sept. 11, 1986 p. 7.
The calculated cost was in the range of $500,000 to $3,000,000 l
*pe r phnt. This is a trivini cost; it is the : equivalent to what au everage utility may pay for replacement power for.a 10-day J f shutdown. Compared to the human and economic costs of a large 1
3 radiation release, fc is obviously tiny. j l ^dt he time tl.ase modest improvements were proposed, these top ~NRC safety offAcials were widely quoted alon,g the following lines / : '
, 1/ ; .
Oueshions r.pnc.erning whether -the 2 dark 2 t ( >
' containment, wocid withstand a severe accident have .
j taken on now importance following the Chernobyl I disaster.,,,.Denton said.
"Ke can' argue about the probability of severe core damage for.a long time," Denton said. "I think the political climate is such that people are willing to concede that maybe they (severe accidents) will happen now and then at U.S. plants, despite the best efforts of everyone. But they want to know it won't turn into the Chernobyl-type event." f "Inside NRC", June 9, 1986, pp 1,3. .
I I
"We have badgered ourselves with severe accident analysis," [ Bern'ero] said. "For six years we have analyzed the subject to death and we haven't made a change at a single plant. That's ridiculous."
"Inside NRC," Sept.,29, 1986, p.1.
l
/ p Denton and Bernero pushed through 1986 and 1987 for NRC to
, 3 require the Mark I owners to make the inexpensive changes, j t i (During tho' game period of time the French, Germans and Swedes
*/
/
( 19 1 l l
went ahead with similar and in some cases more extensive backfits to their plants' containment systems, even to PWR containments q which are substantially more reliable than the Mark I's. See i eg., "Inside NRC,' Uuly 20, .1987, p. 2 ) ln the U.S., however, j, the cost-benefit mindset contained in the backfit rule took hold. 2 The NRC .staf.f . announced -that, :if 'the owners did not voluntarily agree to the changes, the agency would have to do a cost-benefit rule. "Inside NRC," Aug. 18, 1986, p. 3. It is perhaps not surprising that the following then took place: The vast majority of Mark I owners did not voluntarily ; agree to make safety improvements; Victor Stello, Executive Directo" of NRC, blocked the proposal by sending it back for more cost-benefit calculations; and both Denton and Bernero were transferred out of NRR to jobs where they can have essentially no influence on this decision. The nuclear Industry trade papers Teported the following on January 5, 1987.: c ) Bernero's activism has made him unpopular with nuclear utilities and vendors, and industry sources say there has been pressure from the industry to remove him from his current position particularly since he has taken an increasingly strong stand on the need for Mark I fixes.
"Inside NRC," Jan. 5,1 987, p. 10. At a commission meeting on July 15, 1987, the staff announced that it no longer advocates the safety improvements proposed after Chernobyl. Instead there will be further study. In fact, the decision that the cost-benefit test under tho backfit rule would be applied to this situation was the death knell for any significant action to improve Mark I safety, as it will be for any significant safety 2 Bernero was quoted as saying that while he believed the Mark I modifications "could be exempted" from the backfit rule because they would clearly increase safety, he was unwilling to allow the modifications to be delayed by a dispute over how to interpret the backfit rule. "Inside NRC," June 9, 1986, p. 3.
l 20
1 l improvement at any plant. That is because the cost-benefit I methodology mandated in the rule has been calculated by NRC to l justify no more than a few million dollars expenditure per plant, no matter how: great the risk being addressed. The calculation is explained in detail in NUREG-1150, Reactor Risk Reference i Document, Chapter 8, February,1987, and its effect is : summarized by NRC as follows: Of particular note, however, is the fact that even given the large uncertainties associated with any estimated averted risk, the maximum amount of money that could be justified for backfit consideration, on ! cost-benefit theory alone is limited to a few million dollars, considering only offsite costs and about $20 million, considering both onsite and offsite costs. Id at 'ES-19, emphasis added.3 What do we learn from this example?
- 1. Once again, lacking any objective, rational criteria, ,
NRC simply applies the cost-benefit requirement to consideration i of any significant safety improvement. When NRC's own calculations _show that the' Mark 7 containment is likely to fail in the event of a severe accident, is the consideration of measures designed to prevent a large release of radioactive material an exercise in deciding "the range and scope of safety measures that adequate protection requires." (UCS v NRC. Slip opinion at 20) as to which cost-benefit should therefore not apply? We believe so. In any case, there is no evidence that NRC even considered this all-important threshhold distinction. { Cost-benefit justification was required without any explanation f of why it should be appropriate in this case. That is clearly contrary to the Court's ruling. 3 The rule does not require consideration of on-site costs (i.e. the cost of losing the nuclear plant). See proposed 10CFR j 50.109(c), 50 Fed. Reg. 38112 (cols. 2-3) and Separate Views of Commissioner Asselstine, Id. at 38108, Col. 2, Sept. 20, 1985. 21 l l
{- l'
- 2. Again we see the chilling effect of the rule. As noted j ,
above, while Mr. Bernero believed the Mark I safety improvements !
;could be construed as exempt from cost-benefit justification, he l chose not -to press the issue for fear it would cause further !
I delay. l
- 3. Finally, application of the cost-benefit rule virtually ensures that no. safety improvements costing more than a few million dollars vill ;be ordered, because -the calculation mandated by the rule does not justify a greater expenditure, no matter what the risk being addressed may be. i l-In summary, these two examples show that the effect of the backfit rule is to freeze the current level of safety (or risk) at U.S. plants.
A ; final -example . confirms :the . conf.lict between the . rule and the Court's decision. In 1979, the accident .at Three Mile Island I Unit 2..in Pennsylv.ania . focussed Attention on the 22nique .. safety problems with reactors manufactured by the Babcock and Wilcox Co. ("B&W"). In brief, special aspects of the B&W design make these plants highly sensitive to events that would be innocuous in 1 other pressurized water reactors. As a result, B&W plants have suffered a series of undercooking and overcooling events that repeatedly challenge the plants' safety systems, make unreasonable demands on operators and, in UCS's view, pose undue risks to public health and safety. (For detailed analysis of these issues, see, Union of Concerned Scientists' " Petition for Immediate Action to Relieve Undue Risk Posed by Nuclear Plants Designed by the Babcock and Wilcox Company", Feb. 10, 1987, and UCS' Reply to Responses from the NRC Staff and B&W Owners Group, June 12, 1987.) After the TMI-2 accident, a number of safety changes were made to the B&W plants. However, potentially dangerous events 22
i continued to occur at these plants. In particular, two complex accidents in 1985, one at. Davis-Besse in Ohio and the.other at Rancho Seco in California, caused NRC to announce that it would' undertake -to reassess the adequac_y of the " basic design requirements" of the B&W plants. Victor Stello, NRC's Executive Director for Operations, wrote to all B&W owners in January, 1986, that: recent events at B&W designed reactors have reinforced our concerns regarding these designs and lead us to conclude that there is a need'to re-examine the basic design requirements for B&W reactors. * *
- While we recognize that utilities are now and have been making modifications to their plants, the number and complexity of events has not decreased as expected.
Victor.Stello, Acting Executive Director for Operations, to Hal Tucker, Chairman, Tabcock E 'Wilcox Owners Group, Dan. 24, 1986, emphasis added. The letter stated further that, in response to - these roncerns, NRC would
- reassess the overall safety of B&W plants and determine whether the present set of requirements for T&W are appropriate for the long' term and lead to a level of safety at B&W plants that is comparable to other pressurized water reactors." Id, emphasis added.
Thus, by NRC's own characterization, the issue being addressed here is whether, in the light of operating experience, . the current safety requirements as they apply to B&W plants provide an adequate level of safety. It would seem clear that this is a case where cost-benefit justification should not apply, j i since the issue is precisely "the range and scope of safety j 1 measures that adequate protection requires." UCS v NRC, Slip j opinion at 20. However, NRC has determined that cost-benefit l
. justification will be required before the Agency may impose safety improvements growing out of this assessment. See NRC Response to March 27, 1986 letter from Congressman Edward Markey, 1
! 23 l 1
1 Chairman, Subcommittee on Energy Conservation and Power, April 15, 1986, Question 16. conclusion j
]
In summary, our review demonstrates that NRC's proposed rule rannot be both consistent with the Agency's current practice and lawful under the interpretation of the Atomic Energy Act set out by the Court of Appeals. The Court's decision requires the j agency to construct a rule which rationally distinguishes between la cases where cost-benefit analysis is permissible and those where it.is not, but the new proposal is even more devoid of objective guidance or criteria for making this distinction than was its predecessor. Moreover, NRC's current practice, which is the only available guidance regarding its interpretation of the new rule, shows that cost-benefit justification is being required even when the regulatory action in question involves " establishing and , senforcing the ,1uval rf adequate protection,*".:in vlolation of the Court's express -interpretation of the mandate of the Atomic Energy Act.' _UCS v NRC, Slip opinion at 22. NRC has once again attempted to fashion a rule that is so vague and standardless as to give it unbridled authority to do whatever it pleases, regardless of the law. In addition, it has again provided for no public participation in the critical threshold decision; indeed, it has provided no procedural mechanism at all for decisions under the backfit rule. It has simply announced that a forthcoming revision of its internal agency manual - a document not subject to public comment or -l judicial review - will contain whatever further procedural guidance the Agency may offer. We believe that the law requires that all critical substantive and procedural elements of the rulo be subject to the notice and comment provisions of the ; Administrative Procedure Act. i 1 24
p .. l LIn order .to comport with the law, any backfit' rule proposed
.by NRC which includes the consideration of cost must at' a: minimum contain substantive criteria or standards 1which will be used to
' determine at the~ threshold whether any regulatory action being addressed: involves consideration of "the range and' scope of
. safety measures that adequate protection requires" or .whether. it goes beyond adequate protection. In addition,. the . rule must con-
.tain' procedural projections which afford the public the minimum rights of due process established in the Administrative Procedure
.Act.
Res ectfully submitted, - h Ellyn R. We iss i i Harmon & Weiss 2001 S Street, NW
. Suite 430 Washington, D.C. 20009 General Counsel, .
Union of Concerned Scientists i 25
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- DISCUSSION 0F A _
GENERIC LETTER ON '- BWR' CONTAINMENT
- PERFORMANCE .
q SEPTEMBER 11, 1986 p - I - 4 . 1 ROBERT M. BERNER0, USNRC B l l t i
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' GENERIC LETTER ON ..
' BWR CONTAINMENT PERFORMANCE-m . _ . .. .. .. .
+ THE SETTlN_E: PLANT. EVALUATIONS UNDER THE SEVERE ACCIDENT POLICY- ..
~"
~ STATEMENT ~
,t', THE KEY REGULATIONS: GDC 16 AND GDC 50 , i
- THE SUBJECTS: 37 BWRS WITH PRESSURE SUPPRESSION CONTAINMENTS
. l THE METHOD: A GENERIC LETTER.0F REQUIREMENTS TO IMPLEMENT CHANGES BASED ON GENERIC EVALUATION y .
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- e NRC SEVERE ACCIDENT POLICY' STATEMENT-l e 'THE MOST COST-EFFECTIVE OPTIONS FOR REDUCING THIS VULNERABILITY SHALL BE IDENTIFIED AND A DECISION SHALL BE REACHED CONSISTENT WITH THE COST-EFFECTIVENESS CRITERIA 0F.
THE COMMISSION'S BACKFIT POLICY AS TO WHICH OPTION OR SET.0F' OPTIONS (IF ANY) ARE JUSTIFIABLE AND. REQUIRED 'R) BE. JMRLEMENT.ED, . . e IN THOSE INSTANCES'WHERE THE TECHNICAL ISSUE GOES_BEYOND CURRENT REGULATORY REQUIREMENTS, GENERIC RULEMAKING WILL BE ! THE PREFERRED SOLUTION. IN OTHER CASES, THE ISSUE SHOULD BE ] DISPOSED OF THROUGH THE CONVENTIONAL PRACTICE OF ISSUING
~
BULLETINS.AND ORDERS OR GENERIC LtilERS WHERE MODIFICATIONS l 1 ARE JUSTIFIED THROUGH BACKFIT POLICY, OR THROUGH ! PLANT-SPECIFIC DECISION MAKING ALONG THE LINES OF THE INTEGRATED SAFETY ASSESSMENT PROGRAM (ISAP) CONCEPTION. e 1 _-.__._-__lm. -
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I , l O - F , . E , l GDC-16: -
- CRITERION 16.- CONTAINMENT. DESIGN. --AN ESSENTIALLY.
l LEAK-TIGHT BARRIER AGAINST THE UNCONTROLLED RELEASE OF
- RADIOACTIVITY T0 THE ENVIRONMENT AND TO ASSURE THAT THE
. CONTAINMENT DESIGN CONDITIONS IMPORTANT TO SAFETY ARE NOT EXCEEDED f0R AS LONG AS POSTULATED ACCIDENT CONDITIONS fEQUIRE "
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- GDC 50:1 ,.
CRITERION'50 -l CONTAINMENT DESIGN BASIS.. --AS REQUIRED BY. xSECTION'50,44L ENERGY FROM METAL-WATER AND OTHER CHEMICAL REACTIONS THAT MAY RESULT FROM DEGRADATION BUT NOT TOTAL
- FAILURE OF EMERGENCY CORE COOLING FUNCTIONING, (2) THE
' LIMITED EXPERIENCE AND' EXPERIMENTAL DATA AVAILABLE FOR'DEFININ'G' ACCIDENT PHENOMENA AND CONTAINMENT RESPONSES, AND (3) THE' i CONSERVATISM O'F THE, CALCULATIONAL MODEL AND INPUT PARAMETERS." ,
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/ ], . - 5 La \ c); . L~P; .U.S. BOILING WATER REACTORS _ e, - E e- 124 BWR 2/3/4 WITH MARK CONTAINMENT .(ALL LICENSED) .
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e 9 BWR 4/5'WITH MARK II CONTAINMENT (7 LICENSED) L
- e. 4BWR6WITHMARK.IIICONT4NMENT-(3 LICENSED)
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Vw - L: 6 h.[ \ ', - L. INSTITUTIONAL PROCESS [ e' CLOSURE OF SEVERE ACCIDENT ANALYSIS FOR CONTA7NMENT p L N0 FURTHER ANALYSIS UNLESS EXCEPTION IS TAKEN o 1 e SPECTRUM OF OPTIONS l. RULEMAKING
-- 50,514F LETTER FOLLOWED BY ORDER GENERIC' LETTER FROM DIRECTOR NRR OR DIRECTOR DBWRL .
e PROCESS CHARACTERISTICS ,.
- BASED ON TECHNICAL WORK AVAILABLE, IDCOR, SOURCE TERM, .
PLANT SPECIFIC WORK, NUREG-1050, NUREG-1150 OPEN TO PUBLIC FOR COMMENT AND PARTICIPATION
,' 4 .
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- --------_-____w
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l-e un 'l A BWR - MARK I I FOR REFERENCE ~ BEFORE- ,, , e . CORE MELT FREQUENCY: 1x10-4/YR. .
'A FULL SPECTRUM OF SEQUENCES INCLUDING BLACK 0UTS ..
~
l h o' CONTAINMENT CAPABILITY: UNCERTAIN AND VARIABLE BUT ASSUME:1 l OUT OF 2 CORE MELTS GIVES FAIRLY LARGE RELEASE , AFTER e CORE MELT FREQUENCY: .2x10-4/HR - -
-- IPE FOR FRONT END MAY REDUCE BUT NO CREDIT IS TAKEN diERE e CONTAINMENT '4PABILITY: SUBSTANTIAL ASSURANCE THAT ,
CONTAINMENT WILL MITIGATE CONSEQUENCES, DEGREE VARIABLE FROM , i PLANT'TO PLANT BUT 1 OUT OF 50 CORE MELTS, GIVING A FAIRLY : j 11 l LARGE RELEASE SHOULD BE REPRESENTATIVE
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'.. - - g HYDROGEN CONTROL' TR0' POSED REQUIREMENTS :
- e. CHANGE. TECH. SPEC. AT END OF OPERATION FROM 24-80UR
~
ALLOWANCE TO'12-HOUR ALLOWANCE OF NON-INERTED 0PERATION AT. REDUCED' POWER ,
.e- . PERMIT 12-HOUR PERIOD AI REDUCED POWER WITHIN THE-OPERATING ,
CYCLE TO. SEARCH FOR UNIDENTIFIED LEAKAGE a
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.e - DEINERTING TYPICALLY TAKES 4-8 HOURS q i f
.e LEAKAGE INSPECTION AND MINOR REPAIR CAN BE REASONABLY -{
ACHIEVED IN 4-8 HOURS i e REDUCED POWER ( 6 33%) SUBSTANTIALLY REDUCES SHORT-LIVED j FISSION PRODUCT INVENTORY AND DYNAMICS OF POSSIBLE ACCIDENTS l l l i. l l l l
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DRYWELL SPRAY-
. PROPOSED REQUIREMENTS: , ,
j
/ e . REDUCE DESIGN' SPRAY RATE (CHANGE N0ZZLES) TOLAB0VT 0% OF ,
.PRESENTVALU$
, e PROVIDE AC-POWERED-BACKUP WATER SUPPLY FOR SPRAY AND
. AC-INDEPENDENT WATER SUPPLY, AVAILABILITY BY. REMOTE MANUAL .1 OPERATION OR BY SIMPLE RELIABLE PROCEDURE DESIRABLE ,
e- MAKE ALTERNATE WATER SOURCES 'AVAlEABLE'TO COOL t0RE 11RECTLY-7 -
's 90/10 MODE OF RHR OPERATION ,
RATIONALE e WATER SUPPLIES AND EQUIPMENT ARE ALREADY AVAILABLE FOR LOWER - FLOWS
. .e > LOWER' FLOWS PROVIDE ALL BENEFITS EXCEPT LOW A T DECAY HEAT REMOVAL AND DO NOT RAPIDLY FLOOD CONTAINMENT e ASSURED DRYWELL SPRAY SUBSTANTIALLY REDUCES PROBABILITY AND SIGNIFICANCE OF DRYWELL FAILURE OR SUPPRESSION POOL BYPASS t
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P'RESSURE CONTROL l-PROPOSED REQUIREMENTS . Y
~
e . RELIABLE CAPABILITY TO' VENT WETWELL AT EPG PRESJURE LEVEL
.WITH OR'WITH0UT AC POWER. 'FOR' VENTING'WITHOUT AC POWER MANUAL PROCEDURE JN ADVANCE MAY BE USED.IF NITROGEN PURGE IS AVAILABLE v
e . VENT OF.'18-INCH' DIAMETER OR GREATER' DESIRABLE-
- e ABILITY TO VENT SLOWER SEQUENCES THROUGH STANDBY GAS TREATMENT SYSTEM ,
1 e BURST RESISTANCE DUCTING IN REACTOR BUILDING TO MINIMIZE COMPLICATIONS l
- o. .
RATIONALE
'e RELIABLE VENTING PREVENTS UNCONTROLLED OVERPRESSURE FAILURE' WHICH'CAN CAUSE CORE MELT ,
e' VENTING WITH DRYWELL SPRAY GIVES GREAT ASSURANCE OF RELEASE MITIGATION
..]
e . j' lC . .- 11 i CORE DEBRIS f' PROPOSED REQUIREMENTS . e ASSURE RETENTION OF WATER AT LEAST 3 FEET DEEP IN TORUS ROOM IF TORUS LEAKS ENTIRE CONTENTS l l 5
-DESIRABLE
~.
. e. CONCRETE CURBS '0R OTHER BARRIERS WHICH WOULD' RETARD DEBRIS
-ATTACK OF DRYWELL SHELL- ,
e AVOID LOSS OF REC 0VERY SYSTEMS FROM WETTING BY TORUS ROOM WATER , d . RATIONALE ..
)
e- DRYWELL FAILURE BY DEBRIS ATTACK IS MADE LESS LIKELY AND LESS SIGNIFICANT BY DRYWELL SPRAY AND VENTING j o RETENTION OF TORUS WATER ENSURES DEBRIS QUENCHING AND SHOULD FACILITATE ACCIDENT RECOVERY
. \
i w- - - - - _ - - - - _ _- . _ _ _ _ _
- s. .:.
CHRONOLOGY e LJUNE 16, 1986: MEETING WITH BWROG/IDCOR PROPOSED A GENERIC .
. LETTER, PRESCRIPTIVE SOLUT.lDN, .BY .BACKFJT .
Es?: JUNE 30,1986: VERMONT YANKEE COMMITS TO 60V..KUNIN TO B0 A SPECIAL 60-DAY CONTAINMENT STUDY e JULY 25, 1986: BOSTON EDISON COMPANY BOARD DECIDES TO FIX PILGRIM CONTAINMENT e AUGUST 19,~1986: 3WROG " EXECUTIVES YOTE TO TUND ED CONTINUE DIALOGUE ON THIS WITH NRC, CONTACT NUMARC ABOUT BWR VS PWR e SEPTEMBER 11, 1986: MEETING WITH BWROG TO COMPARE BACKFIT NOTES AND STRAWMAN GENERIC REQUIREMENTS e ' SEPTEMBER 11, 1986:- MEETING WITH VERMONT YANKEE TO REVIEW . CONTAINMENT-STUDY o - SEPTEMBER 23,1986: -NRC/lDCOR MEETING ON .BWR/ NARK 1. ANALYSES le . SEPTEMBER 23, 1986: - l ACRS' SUBCOMMITTEE ON CONTAINMENT ! PERFORMANCE TO DISCUSS HARPERS FERRY MORKSHOP ERESULTS .AND BWR ' CONTAINMENT GENERIC APPROACH s SEPTEMBER 24, 198'6: ACRS SUBCOMMITTEE ON CLASS 9 ACCIDENTS TO DISCUSS BWR/ MARK I ANALYSES AND SEVERE ACCIDENT PROGRAM ,
'e NOVEMBER 19, 1986: CRGR~ REVIEW 0F DRAFT GENERIC LETTER ON BWR CONTAINMENT REQUIREMENTS-(T0 BE PUBLISHED FOR COMMENT) e DECEMBER 17, 1986: ISSUE DRAFT GENERIC LETTER ON BWR
. CONTAINMENT REQUIREMENTS FOR PUBLIC COMMENT 1
e APRIL 1987: ISSUE FINAL GENERIC LttlER ON BWR. CONTAINMENT REQUIREMENTS 1 I
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R' The'tluclear Regulatory Commicsion has issued an Advance . .. Notice of Proposed Ru1emaking request ing comment on "a number s i of broad policy quecticns" before it establishes " requirements for the long-term management of itu proceca for the imposition of new regulatory requirements for power reactors," commonly referred to as 'uackiitting." The Un ion o f Concer ned Sc i en t,i s t o appt ec i at es :.e comrc.i nsi on ' u dec i s i on t o addr ecc
.his complex icaue i ni'. i ally i n an Advance flot i ce of Proposed Rulemaking rather than through a proposed rule. Aa discussed ,
below, the alleged "aacititting" p r o t,l et:. ban never been adequately Jefinea, n e > ~. n e r the indac.ry nor the Commiccion nas praviceJ 1actJm! s u ppo r t ict tne exi nt ence of a " n a u r. f i t t i n g " p: obl en., and r:n anal;.aes : o aa' e have failed
- o di: inguich .
among the various circumstances in which t.he problem allegedly arisec, or t o provide a cound analysis t hat would allow the ; commi ssi on t o develop a management scheme thar bo'.h asaares pr otection of r ne public healt h and .:af ety and meets industry neeJa for certainty and efficiency. A l t. h o u gh the commincion'r Advance flot ice refera to establishing a " process for the impcaition of new regulatory requirements for power reactorn," it ,loen not. define this term. 4
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It .is . clear f rom the quent lona rained by t he' Commincion' and
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;from the history of the."back(itting"'diupute, however, that the problem that the nuclear industryDand thuc the commission ~,
n , seeka to addeens i a no'. li mi t ed to the development . of . now regulatory requirement 3:. Rarher,-it can roaconably.be
,- c haracter ized as extending t o' any. att empFu to r equ i re c eactor
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licencoes to one - changes i n t.hei r plant, equipment, perconnel,. ; i or' other aspect a o f .thei r operationn beyond what, was requi red
'at the time the'cor.ctruction permit.wan'icaued. -
The issuea raised by thin effort ate extremely complex. They vary lnot'only according ?o rhe type of chan'Je thuri the 'l o
- Co r.m i a u s i'o n " :n i g n t cock eo iupuae, _ o_u*. according to-the l i cenu'i.ng ' .s t a t us o f . [ia r t i cu l o t - roact m a, the an ten t. of review-
'.ha- haa aeen per f ormeJ ay t!.o Staf f, and t he de jrce of 1
- pa r ..i cular i t y wi th wh i en r ecla s s emen t.a have been i ncor pr; rated in
.Commi cs ion r egulationa. It i .: ecuential, therefore,'r.ha. the Commission recogni::e that it cannot entablich a single rule to j address all of the cireumntancea at isnue. Rather, i t. mua*
examine each alleged problem on its particular merita an
'l develop an approach that is ooited to that problem. The- !
questionc poned in the Comminulon'a Advance Notice indicate l'g that the Commission may already have recognized the need to i: ( , take this careful approach. A major purpose of UCS' comments
~
i s to delineate the various types of alleged problems that the industry and others are attempting to addrecs, to establish the
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- 1. General Principiec A. Under the At omic Energy Act, the Commi 9si on. Muut Isnue,'And The Induatry Muut M e e *. , Such Standards As ;
Jr e Decounary To Protect the PublIc Health And Safety. 9
.l The fundamental principle that governs the Commfasion's i approach to thiu and all other regulatory issues fa its responsibility to protect ,he public health and safety. That ]
d theme ~ pervades the: Atomic Enerqy Act, and'it appearc-particu.3rly i n the provisions. authorizing thLe Commiccion to "
. issue standardu and to licenae nuclear reactors. Under Section , i
.161(b), 42 U.S.C. S 2201 h), the Comminaion i n auttior i::ed ' to 1
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icaue auch standards "is the Commicion may deem necescary or decirable . . . to protect *he publ'ic heal *h or to mi nimi::e i danger to life or property." Under Section 103(~o), the l
' Commission may not i nsue a r e ai c '.o r liconac unlens r.he applicant j is " equipped to' observe and . . . agree [s] to observe auch safety. standards to protect health and to minimize danger to lif e or propert y as the comminulon may by rule entablish." 42 l U.S.C. 5 2133(b). And under cection 103(d), the Commission may .
not issue a license if to do so "would be inimical
. . . to the '
health and safety of the public.*g ;42 U.S.C. S 2133(d).
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_.h Thece are ~ the pr incipteu on which the C.mmicaf on's analysi s of the backfitting inuue must be. baned. IC the Commission has j
' determined that a particular utandard must be established in order tolprotect the public health and nafety, that standard
~
t q muut be met. The. statute leaven no room for permitting j anything leau than the degrs'e of safety protection required by' Commission standardu. . !
- 1. Cost-Denefit Balancing Is Prchibited 1
As described by the Advance Motice, the propocal of the H i A*.cm i c In dus tr i al F'o r um would permi
- reactor licencees to avoid ;
i meeting new safety requirements or making other improvements l necess.?.ry to meet Commi ccion standarda i f
- he improvement "is '
(not} justified when conuidered over the remaining' life of the l facility." :n other wordO, A T P would have t he Commi ssion consider whe*her the costs of meeting uafety utandarda outweigh the benefits of enhanced protection of the public health and safety. As the Commission cane law has long and consistently held, the Atomic Energy Act, does not allow uuch a cost-benefit l analysis: [I]n the safety sphere the evaluation of the ricks ! attendant to reactor operation la not undertaken'as an element of NEPA-type proccus by which costs may be traded off against benefits. Rather, the function of the evaluation is to ascertain whether the ultimate, unconditional standards of the Atomic Energy Act and l the regulations have been met; e.g. whether the public f'U X ._, health and safety will.be adequately protected. ( - 1 c .C .r , , 1 M.$ . g ' ,, , 3 b"**. ,
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A I. Au-161, 6 AMC 1003, LOO 7 ( l') / 1 ) . I As we had occasion to otreaa many yearn ago, the cos t/b ene f i t balancinq procen.. at the root of decisions in the enforcement of the flational Environmental Policy Act playu no part in the enforcement of the alety n'audarda laid down by the Atomic Energy Act., Public Servico Co mpany o f New Ila npch i r e (Seabrook Station, Units 1 and .! ) AIAB-623, 12 liitC 670 (1980). The cost or di f ficulty asnociated wi th implemen'.ing action needed to ensure safety are not relevant considerations to this agency. Commonwealth Edison Company (Byron St.ation, Unita 1 and 2) D D 5 , I J tiite / ? u ( 19 81 ) . These interpretations of the At omic Energy Act are consistent with and required by applicable case law arising under other statutes. Although the particular decision depends upon the language of r.he statu e in question, the Supreme Court 's decision i n Amer i c m Toxt i in Manufacturers I n n t. i u '. o Inc. v. Donovan, 452 U.S. 490 (1981) is inut.ructive here. The textile industry challenged a cotton dust utandard promulgated by 6.he Occupational Safety and llealth Administration on the ground that the health benefit.; of the utandard did not sufficiently outweight the coutu of its implementation. The crux of the argument was utatutory language that authorized 1 In Maine Yankee, the Appeal Board rejected an argument that cost-benefit concepts should be employed to. evaluate the , acceptability of residual risk where the reactor 'otherwise
,t complied with Commission standards, an argument that might well have resulted in more stringent standards for the particular
.? - i reactor.ssIt would thus be.the height..of hyprocrisy to allow ::3GS,
.h ?.t .ff fcost
?(,j.;j u113benefit compliance;wl 2,cor.cepts, tipcommitolbe esi used ongaf to,alloV'someth!ngiless e.t.ydatiandards?$Agither the thanhg;q:flQ J /...p MWW7 2,- ]SAcCallowest he s to~n eco sistentV" f.
Mhe a as:Dee m j[Mg/ fp :s h .ntut sr @8.theln;at 410,hsif,lifspjf of M 3-theryjiu'rpp ' t 3 u w @ W 9- wm$ bf._ .__.. _ _ _ . 1 , we
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! '.s ** n: >-,' .s . OSilA to establish a standard."which mout adequately ancuros,'to the extent feacible," that there would be no material impairment of the health of affected employees. The Court l ref used to read the word "f easible" an incorporating a - coct-benefit balancing requiremen'., ho ld i ng i n';tead tha t the question was whether i t was technologically and economi cally pounible to implement the standard. In the Cuurt'u view, Congr ess had alr eady made the cost-bonefi t decision when it decided that workers would be protected if it was.poccible to do .;o. In addition, i n langua ;e d i r ect.ly appl i cable her e, tha-Cour- held
- hat When a r.gr ena ':a c in.enood tr,ar an agency engage in -
c o a r. - b e n e t i *. analycic, 1. haa clear ly Ir.di cated cucn
- nten* on tne face 1 :. ne Ota.u*.e.
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'n. r c :'*en . 31 Crurac- an ' . ~ *7, 647 P . J ci 130, II43, 11 %
( -) , ; . C::.), cer*. denied, '.l . C . , 101 C..Ct. T (1900). The i ssue pr esen*.ed by t he At omic Energy Act in far cimpler
- han
- na . add:caued by
- he .h;p r ene C o u r *. . The Act requiees the Comniasion *.o accur e pr otect ion of t he public health and cafety. It contains no reference to feasibility or to any ot.her concept that might sofr'n har manda'e. In particular, it contains no reference to any cort of cost-benefit balancing. Moreover, as the Appeal Board has recognized, the .
, - legislative history contains no indication that the Commission ..
may undertake any such balancing. Maine Yankee Power Company, . .
. 6 A.E.C. at 1006-07. 'Thus,.the commission has no authority to d
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stan..dards'on'the ground of cout . Ni t her t.he reactor s must . ]'>;
.it !j -l provideAthe pr.otect i ons r egh'i t ed by[t$he u tandarda,a,or
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" ding the hbnue of cost -bene f.' t balad'd'ing , 'h
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- i. risk assessment . (PRA7. These alle/ed indications of overall J 1 ,
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' seeminyly precice baaiu (ur dotermininy that.a backfit t>
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'.hs eno MRC "juatify" each, AIF's pts.jposed :aquirement c
'backfit1by considering t.he remai'ninf life of .he facility z
- enahrfnds JP.A, beccome 'the ne(:ensary analysie 3 a prenumably based on-t,heidanioua anumption that rha probaoflit.y'of an i accident'iLa;less when the remaining plant life in uhorter. It 6 l would also h, ave the effect aC adopting a lower utandard of ,
4 saf ety f or t'he' oldest plants -- preciselyt those most in need of t upgrading. , , Th'c fact is that.'.hese complex computer analyses, which are { based on thousands j of arbitlrary and unveri fiable acnumptions, j
.1 l can be deliberately abused to reach a predetermined result. i PRA';s ar e all sub ject tf overall uncertainties of such enormous magnitude that they do.n M furnish a sound, independent basis
' for deci s i on-mak i ng . . .Ir.st ead , they provide,the illusion of 1
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pr ecision.h.a. And, .'beca'usq of thei r gr eht::c.oeplexi . ty and s. - . cost ,
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expert's,Jincluding thoue on the. Advisory Committer on Reactor.
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c t r ely 'on PRA as the. detertaininij f actor Lin backfitting
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o dec'inions ia .la iicliberate attempt to prevent any more s g.,..-* , A 1 , g Jba &f1tting. \t bh n'- .- In September , -190 2, ACRG nesider a liyer Gender and Je remiah
~
06 J. Ray.(the current: Chairman), advised the NRC:- , There io no .way in which the current proposed - aafety' goal policy will nerve any useful puolic safety
~
purpose as long aa.itu main assessment basis 13 PRA.. It~1a'very likely to'diutort the significance of py i mpo'r t ant 'publi c sa f et.y ' mat ter s , and it has already. diverted the attention of knowledgea'alc personnel on. @ the NRC Staff from important physical plant proolems f LU , to st.udies of incuec being analyzed on;the bauiu of a v a'cu um' o f s tat i at i cM a ta . ACabReport on the Draft Action Plan for :nplementing the Co~micnicn'.s ?ropa.;ed Safet/ 10 a la f. o r flu c t ua r Po w er Pl a n t'a , t Sept.,15,.1992, Additional comments by Memoern Myer Bender and Jer eni dh J. Ray, p.3. The use of PRA for regulatory purp< con is defencibic If event acquences and related probabilities aru well
% ,. / , understood and the consequences to public welf are can
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be c1early defined. The PRA methodology now in une
. .does not meet these conili tionn.
_Id. at 5.
. . .PRA studien au currently performed will remain inscrutable and will, at least for the next-decade, be
- little more than a -display of logical thought based on B ,
essentially arbitrary reliability assumptions.
-Id.
at 6. .
; The claims for PRA concerning its ability to assess b public safety risk are 11ttle more than a sham that
~~
will hide the fact that the basis for safety will g[', . , always depend upon the judgment of a few individua1jg,. f" , j an t. . . . . . : , c . ., . :.:. -, g .
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_9_ t Decause, as tender and Ray point out, an an indicator of
-l ovpaM safety PRAn are largely a sham, backfit decisions canr$t bn DdNd in whole or in part,on PRAS. ,
Oltimately, the determination of what atandarda muut be met L i j!n order to provide a reaconable annurance that the public i 1 x health and safety will be protected comeu down to the reasoned professional judgment of the responsible official. PRAs serve t 1~ only to obscure that fact and to create an aura of false , 1 asuurance. They must be rejected as baces for determining w h et he r . !GC safe'.y requirements have been met. i B. A Backfjr Pr ov i u n on May fior Be Used To Gubvert The , ; neauiremen a ot Th e Admi ni str at i ve Pr ocedure Ac~ .
, The Commiccion may establish governing utandarda and reach
/
.) deciaicna in one of two ways, through rulemaking or
-),
/ adjudication. Stare of Minneuora v. thic l ea r P.e.!a l a t o r y 3
,i ' e
- ' Conmiss n, 60: F:2d 412 (D.C. Cir. 1979). The Conni t:s i on 4
s yp f e exe/ciae's its tulemaking anthority to establish nuclear reactor 1~b < (,. safc?;y standarda, 'ind licenseen may avoid those ntandards only I by obb.aining a wiver under 10 C.F.R. 5 2.758. Such a waiver r' request i ssubject[opublicscrutinyinanadjudicatory s , ,
~
proceedi39 ano thu[a' meets the requirements of the Administrative Procedure Act. cl i (
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Any backfit rule must similarly meet this requirement. If the Commi ssi orc 4 stab 1'ishes a. safety standard, a IIcensee may , avoid it only by obtaining a crecific exemption in the new rule
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n. 5 2.750,or, some .similar public q;._y, w ', itself, orl seeking one under
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II. The Problem A. General .The tiend for Clear Definition and Distinction The comminsion has not defined the problem that it seeks to address other than to refer to the imposition of new regulatory l l requirements for power reactors, while the industry hopes to obtain a rule that will govern, and preuumably limit, any changes that might be sought in plant, equipment, personnel, or other aspects of operation after the conattuction permit has been issued. Theue are very vague concepts that require reference to f.: cts in order *o determine jun* snat, if anything, needs to oe done o i Hpr ove ' he regulation of nuclear power while pro .ecting -he pui>li c healt h and aaf et y. There is no doub' ' hat
- t,e summinaion han r eq .. ! r o J reac'ar licennees to make a nur.te at changen in their planta and operations for various reasona over the years. Prominent examples i nclude upgradi ng r equi r ed an a r eau lt of the leccons learned from the accident it Three Mile Island, extensive i mpr avements requi red to meet the environmental qualification requirements long embodied in General Design Criterion 4, and upgraded hydrogen protection that will eventually be required as a result of the TMI accident. The first two of these and the overwhelming majority of other changes that have been , $.
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required are not _a result of applying new regulations, but y-arise from the discovery, too of ten af ter reactor operation was >
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'~rdc " approved,'that;the plant does not, in' fact,/cmeet the r l}f*pMAfg a
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?Most of Nuc'u rules are very vague.
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- more than platit uden: thou.uhait be protected againnt fIrec, thou..shalt have a' reliable system for. decay heat. removal.
.There is of ten very li ttle pre-operational revj ew of the' manner ;
i
' in'which the rulcuwil1 be uiet, f,icennees' commitments-are accepted'as a baulu for licenning. 1.ater,.after a incident at
.come plant, or through the reaulta of rencarch, the HRC may "4 .-
Icarn that one or many plants are not adequately protected. againut.a certain hazard. Changen munt then.be made in order to: meet the minimum requirement of the exiating regulations. This is not, to uue the comminuion'a-language, ". imposition of new regulatory requirements;" it is necessary to comp'ly with the applicable rules that the licennees were already thought to have met. Robert Minogue, now tne tinc's d'i rector o f research, explained in a 1979 internal memorandum how this situation came aoout.when the size of operating reactors went from 60 megawatta to t.1most 1200 megawatts in'little more than a. decade: This rapid increase in' power levels occurred-without obtaining any substantial operating experience on the nuclear plants at intermediate levels prior to increasing the size to higher levels....I think that much of the racheting of regulatory requirements for the operating plants about which industry has complained has been a direct result of the fact that the unduly rapid push to larger sizes has resulted in what amounts to a generation of prototypes....this ; situation was almost inevitable given the substantial extrapolation from the early technology. 1 1 In light of this background, the need for changes in equipment
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%..,,or operations in order.to meet,previously established basic ~
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safety standardu, or to comply'with newly promulgated nafety ;
- otandards is not at'all unexpected. To the contrary, _it constitutes, in-cffect', the ttadeoff in return for allowing the_ 3 Industry to build largeL react. ora that went far beyond the true.
maturi ty ' level thatL had been reached by the t.cchnology. !!av i'n g . nought;tha*. rapid growth, the Li ndustry ' i a now s i mply , r espondin'g to the. resconably fornecable connequencen .by making corrections. ;
'I in systema and' operations that were not adequately understood
' ar the time the original approval waa given. Thuc, there is a aer i ous ques t i on a s '.o wl.e' her any of the post-construction permit or pont-operatinq.1icen.;e.changen tnat have been .
'l r equ i r ed by '.he Commi as i on conut i tu* e uomo degr ee o f overregulation not neceasary to assure reactor safety, as the i n d e u t r y ' w o u l ,.: ..a v e i '. , '>r whether inctead they aimply constitute-the natural maturing of'the uafety regulations to catch up with the " unduly r api d puch" to larger reactors. !
Indeed, the'most striking aspect of the arguments that have been presented in support of "backfit r e f or m" is the failure by either the i ndustry, the : lite St af f, or anyone elue, to demonstrate that a single backfit wan unnecoccary. According l to Chairman Pallidino's letter of September 29, 1983, to
' Senator Mitchell, the Commission knows of n instances in which unnecessary backfits were imposed. If the industry's ,
# I L complaints are t! rue, this failure to demonstrate even one -
f unnecessary backfit is doubly astonishing i n light of the , [* licen,see'.s. clearly defined opportunities to contest backf.it i. - -
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- requirements. Under the exiuting provisions of 10 C.F.R. S 50.109, licenneen have l ad t he opport. uni t y to coritent any backfit, and they could have f orced the St.a f f to meet what the Commiccion itself has recognized as "a relatively high standard." 40 Fed. Reg. 44217.
Accordingly, it i s extremely doubtf ul that there ic any need whatsoever to place any substantive lirai ta on back f i t r eq u i r eme'a t c , as the induutt y would do. If previous backfits have not been contested, and no unneceucary backfits have been identified, there is no baaic for placing new limits on the in.stitution of backfit requirements. This does not mean, however, that the manage ment of t>ackEit requirements by the Staff cannot or nnould not is e improved. If
'icensees receive differen' an.i at t i:aea conf licti ng c ignals fron different organization and levela of the ca.aff, it no doub* confuses their operations, and it may both result in unnecessary costo and be detrimental to safety. Manag emen t should be made more efficient, and the Staff should be made accountable for its positions.
D. Dreakdown of Backfit Insuen In order to assist the Commincion's analycic, UCS has broken down the potential areas in which post-approval changes may be required. Each must be addrecsed discretely to determine whether i t preuents any problema that require Commission attention and to assure that the colutions are i . m. v4.......m tailored sto the f acts:ta'ther than based upon unsubstantiated 4.U~4
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- 1. The Two Typea at tia. k t it y
' All backf i ts f all i nto ~one o f t wo categoriea, (a) those in 4
which.the backfit involvea a now naf et y caf ety utandard that l~ncr eases ~ the ' margin of nat or y beyond what waa' required when a i 1 reactor was licenaed, and (b) thaac'in which the backfit is -l necessary to r ectore the degr ee of sa f ety that the' reactor.was , believed and intended to provide when it was licenced. These ; are described more fully below. The difference between them requires distinctly different treatment. .
- a. tiew Rule Backfits The Commiscion' c regulations, primarily 10 C.F.R. Part 50, establish the uafety standards *. hat must be met by the nation's nuclear reactors.
These standards are adopted through a formal rulemasing procesa, in which the.public han an opportunity '.o j l comment pursuant to t he pr.w i s ions o f the Admi n i ctra *.i ve ]
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Procedure Act. These rule:, are the isaneline on which reactor safety is determined. The public hau the right to expect and f-
.o demand that these standarda be met.
Over the years, as a result of experiences cuch ac the l Three Mile Island accident or of analytical or methodology'..a1 i mpr ovements , the Commi ssi on han found it necessary to change these standards, which it hau done through rulemaking proceedings. Prominent exampleu are the promulgation of the j
? ECCS requirements a decade ago and the proposal to develop ,
strictor hydrogen control standards, which is still pending.
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{exi sti ;ywan,;. ngyg r eactor s,* these , actions.&. change
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. underlying urandard by which the cafety of the nuclear reactora must be determined. As a result, they muut be subjected to scrutiny by the public, and particularly by the inductry, whose burdens will be increased by the new rulec.
For the purpose of this dincuncion, these backfits will be t i termed "new rule backlits." Their distinguishing feature is l l that, as applied to exiating reactora, they are in addltion to l l what wau required a* 'he time the reactor was licenced, and they increase the degree or margin of nafety beyond what was required at that time. l
- b. Carch-on liacr. fit u
. Ac pr evi ouely noted, *he vaut majority of what have icouely been termed "S.ekfi*s" are, in fact, changes that are needed to bring a reae a- .rto c m.pliance with regula ory ctandards atter it has been det ermined, tot various reacona, that tne facility 1
1 did no* actually pr oviJe *he level o f sa f ety r equ i red by the regulatlone when it wac iicenued. Their purpose ia not t.o make the reactor safer than it nad to be when it was licenced to i operate, but to upgrade the reactor co that it will provide the came degree of safety that the Commission thought the reactor would pravide when the Comminuion approved itu 1icence. For the purpose of thin discucuion, we will refer to these as , " cat ch-up back fi to' because they are intended to require the
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l ' reactor to catch up to where it was supposed to be at the time it was licensed. Catch-up backfita typically occur then the
- 'St'af f discovers, of ten,, m-long a.f ter ~.the plant has goneiinto .
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operation,.that.it-la not au aafe au the staff believed when it. approved-the.licenne application. Some examples illuntrate this sort.of development:
-(1) -TMI Accident Fixes. Much of the industry's -l i
discontent cricea.'from the large number of improvements that the staff haa required since the Three Mile Island l accident. The vant ma jor i ty of thoac f I xes, however, .wer e necessary to meet the safety standards embodied in the ; Commission's rulen before the accident and at the time i e most, 11 not all, operating reactors were licensed. The I l staf f began to requi re the fixen because the ,1ccident demonstrated'that the plant.; were noe as safe au had previously been int. ended and believed. ':'h u s , thece are not I new.33fe'.'; requirements, out " c a !. c h - d p a " necescar/ .o mee. the Commiacion'J ex:.ning regulations. One example et the puut-TMI catch-upa is the staff requirement that licencees. connect pressurizer heaters, pilot operated relief valves, and other uafety equipment to on-site power no that it will function if off-site power is lost. The atafC's determination that this wac necessary to meet preexisting safety standards appears in tJUREG-0578 at page A-3. This and other catch-upc are the nort of improvements to existing equipment that must be required
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- 3. requi res that ~ the. r eactor be adin]uately protected againct fire, but does'ndt contain any specific requirements. The Staff approved many plantu under this vague requirement, and then the Drowna Ferry fire proved that the plants were nur ac' safe as they were supposed to be. The plants did not provide the degree of protection intended by the regulations, so the Staff began to require plants to upgrade these prot ect. ions 30 they would provide the degree of safety that the Comminsion believed they provided when they were'licenced.
Ul timately he Commi nai<>n issued Appendix a to Part 50 in order to entanlich de* ailed guidelines for compliance with t !,e f i r e pr o t ec t i un r eq ui r emen ~.a o f CDC 3. ":. i u la an example of a new regulation that i a not a bace. fit oecaca its purpose is simply to provide the detailed guidance necessary to meet the.ctandard previously established in a more general fashion by GDC 3.
- 2. Environmental qualification. Au with fire protection, GDC 4 han long r equ i red that equipnent be qualified to withstand the effects of an accident and continue to serve its uafety function. Since 1977, it has become cicar that the industry has never met this a.
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-C. TheLDacktit Baceline For Fach Reactor 1 Industry and staff dincuncions to'dato'have suggeated that.
t h'e ' e x i stence 'o f Da bace;f i t should be d:3. ermined based upon changen from approvalo contained in thn construction p'ermit, and in. staff papers auch aa the Standard Review Plan 'and the Regulatory-Guides, as well au in the operating licence. These pos i t i ona 'i gnut e both ',he nat ur e o f
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.that it is virtually.impounible to determine even now the reactor is. designed. To i:npose a back f i t requirement-upon.any changes that the staff me/ tequire after-the construction-permit.J's' issued would be to place the regulation of nuclear reactors in the hands of the industry, and particularly.in-the hands of reactor designers. The first time the staff reviews the design in detail is at the operating license stage. That-
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construction permit stage, which they nav.! consistently refused to do. Arguments that the SRP, Regulatory Guiden, or other Staff positions shuuld be viewed au the baceline from which the neced for "backfits' should be judged i gnore the fact that these documents are not regulations. They hitve neve*r been subjected t o public comment, and thoy are not binding on either the Staff or the Ifcensees. The requirement in not that these documents be .compli ed wi t h, but that the regulations be met. That requirement governo even if the liceru:ee muut undertake extensive improvements not reflected in the CRP in order to cor.9 ply. Although, for *hece c e a u e ri . ; , changes f r am a .af f puJir. ions in the SRP or .,- 'm intormi 0"'.mont- anno- La on..idered to have any diatiae.- legal a t e t..; au back f i t:;, iney ,r.ay cause practical difficulties (ot li.;enuees who were t.uilosing pr ev ious u ta f f pon i t i on:. Of cuorse, the l i cen.;ce:, have t he choice of disagreeing with the staff and attempr.ing to convince the licensing board that t hei r actionc comply wi th Commi;;sion regulations even if they do not meet the latest staff position. If licenseen feel atrongly about an issue, this is what they should do. It may, nonethless, be useful from a practical standpoint to establish a reasonable mechanism to assure that before the operating license is issued lice-sees are not burdened with
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are reasonably justified. Alt hough thene changes are not b a c k f i t:3 because they do not involve changen in the Commiasion's safety regulations or in equipment approved in detail by the operating licenue, they could lie unbjected to the cort of procedural mechanina discuoued at pa g o ., 20 - 26 below an a meanc of adding eet t.aint y t o 'ho operating licence review process. It i :. frapor an*, h o ~ ev. .r , tho'- any nach procedure be sub ject to puulic uctatiny, a* leaut by r equi r i ng ti.ar all such staff changes and resul*.ing lies'nsee appealu, along with all relevant documentativa, be iJan*ified and revea1ed to partleipanto in the operating license hearinJ. In : u :a , *ho b a u .< ' i n e , "iir <.hich backfi*., mo/ ne
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III. Solutions Industry and utaff propouatu to dar e have had both a procedural and a substantive component. The two inu s t be addressed separately, a lthough little if any of the anal/ sis to
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- a. The Pr ocedur al Component .
The procedural component of backfit reform proposals
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,- although .i tl ia di f[icult to tell sineci the industry consistently rails t o i denti f y i ts upeci f f'c problems. 'The es'sence of the. procedural component.:isi ot assure ' that: the staf f manages the implementation ofibackfit requirements in a manner that'acourea that theLrequirements are well considered and justifled, miniminea duplicative or conflicting. instructions; to licensees, and minimites unnecessary burdens upon licensees in-i implementing. t he back f i ts. UCS generally supports the concept of this sort,of procedural reform, but-it must be done carefully in crder'to'aucure that it'does not deter or delay necessary improvements, particularly if they are catch-ups necescary to r epin saf ety pr ateetiona tint were once thought
t o b e tae t . The variouc procedural cropouala anel related Januca follow: I
!1) Requ i r e the Cor.:m i an i on nr a f f to juat.ify all backfits. -UCS aupports this requiremen* in principle cince it would contribute. o rational decisionmaking, which is sorely lacking at the agency. In the case of new rule backfits,.this u
would.not be a new requirement since those must go through rulemaking in any event. Thi s r equi rement could presentia
. problem with respect to catch-ups backfits by placing an excessive burden on the staf f. Ilo w e v e r , if the Staff has a
. reason for any catch-ups that it may require, it should be able .
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L That is the sort of justification that should be required. ,
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(2) Require all backfit requirements to be reviewed and approved by a single office or individual at the flRC for each plant. The purpose of thic requirement would be to I minimize the confusion in dealing with the staff and to ansure i that new staff requitoment a a-o coordinated co that they do not overlap or cont 1ict and tha* thoy can be implemented efficiently. l Again, UC:: anderstanda the need for auch a requirement and would not oppone it. It in eccential, however, that the 1 process be open to ful1 pablie scrutiny, inelading access to 1 all backfit proposala to be r ev i ewed by t he cent.r a l arg2nication, to all at af f-applicant correspondence and all l staff :ocuments, and to all utaff-applican* meetings, witn l nottee cafficient to permir the public un opportunity to l a r *. e n d . The puolic choulo alco Save a c e e :,a to detailed ninutec l of all meetings of ni a cent.ral organization, whether internal I or with licencees. All of thece provisionn are appropriate as a matter of public po) icy. They are also nececaary to prevent undue pour from being concentrated in the hands of a few individuals hostile to saf'ety improvements, as hac occurred with the Committee to Review Generic Requirements (CRGR). The CRGR has been almost completely insulated from public scrutiny, with limited access to relevant documenta and only sketchy, essentially meaningless minutes of.its meetings. As a result, it has a'ted c freely to limit i improvements, even intimidating
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lff,;. i ,. ,' t-4 . { i .? 3 - long-term approach ro 'ho backCittinq incue mua' remedy these serjoua deficiencies. (3) Pr ov i de for some form of in'ernal administrative appeal above the u*.aff level that initiallj imposes a backfit requirement. Uc3 suppor'u *hia . oncept, although it muct Le open to public scrutiny, with noiice of all objectionc to propoced back;itu, an d o ppo r ' a n i '.y '.o c ommen t , and the right to attend all staff-applican' meetings on the subjec*. (*: :' u n ,; ' uocbla-h!nC 1icenueeu by order:r.g tuur to begin one sort of ae*:on .o ;m wmen* 2 c a e '. - u p :or, 'euc !ike1y, a .l a C K '. ' i l and
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3:, . . .c r -e 5 . :. . ; .c r rhe ;icenacea are ;1i.inc *o . Jho- <. o w n ' e a c t e r c, .'at i n a *. period, they adop. i n t e r i m aci a t , on. tnat so:ne t Tcs S r e ne t 't n e came as the Jelution ' hat is u.timately developed. The industry complainc
- hat this unreasonably raices its ccsts and p enal i;:es those who taxe prompt action. They seek at a minimum the right to rely upon such interim colutiona if they provide prot.ection equivalent to that provided by the staff's ultimate solution.
This is largely a case of licensees making their beds and When the problem is then not wanting to sleep in them. discovered, they have the choice of chutting down to await the ,'P v ,,y.f..iQultimate , . I . o.. solution or of taking > interim, . ,,r. measures to justify . n; . ' va . .c :.,.us .- ,%. , . .s w,;, i.. f. . . ;o ."-- 2 . e ,x , . h ' ' V. : s . G,.' v,, t.*&W.u z
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.3. 4. . i nterim operation. If they choor,e t.he latter cource, they should not be heard to complain when their interin measuroa, a taken at their own Iisk, are not accepted. On the other hand, we recognize there may be practical difficulties that deuctve a t *.e n t i o n , and there is nothing inherently unreasonable i n permitting alternatives tnat provide equivalent protection. The di f ficulty in that the system begins to become unmanageable au alternatives proliferate, it is di ff icult ta determine eq u i v a l e n c e , and n+.aff-app;icant i eCU3 Valence n0gotiO*.ionu *ehd FO bec0C.e h:dden from *.he . Dub ;O. ACCO rd 'Ing. y , ' Ci 3 0 j e / E
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w'-' Q's, - } ..> . .t a _ 2 5 .. envi ronmental quali fication t uleu. i t. in alnu consintent with licensee schedules and actiona since the very need for this determination arises from the Caet that the licensees began implementing alternatives bef ore the uolution was ultimately arrived at by the statt. Thun, their alternatives can be included in the rulemaking package along with the staff's proposal so that all are decided upon in the name proceeding. (c) Licenaues could avoid the back C it by showing, under 10 c.F.R. S 2.750 or a similar provision, that the purpose of the particular backfit does not apply to their facilitieu. Again, *he decision soald be open to public acrutiny and would nave to b gu . - '4, Per'.it re.u;onacle schedating of backfits or c c .a .pc : ors sten. s**!, aperat:vnc_ r. e e c a . Here, * .r e . ; d ;. S * ! f S e e r. C ' r ,
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. 1 (probably all) planta betore it was cer*ain *. hat they were safe. Thus, logic and r eason dictat e that all backfits should be implemented immediately, regardleau of how this might disrupt reactor operationn. If the backfitu are necoccary to protect the public health and cafety, there is no excune for delay. lli s tor y detaanst r a tes , however, that t he Comiai nc iun c i mply will not shu*.duun reacturu in these circumstances. To the contrary, if f or,.:ed t o a ccept this logic, the Commi scion would probably stop requiring backfitn a*. all. In this conflict herween protecting the integrity of the Atomic Energy Act and acnieving increased protection of the puolic health and safet'y, ...e latter m u '" prevail. . UCS nelieves, therefore, that the
- ommi ca i vn .sneu ld aJep- a reaconable proceca that will allow 1, . 3.m:n i J a ; en .he a cheda 1 i ng flexibility that it believeG iU necescary to implemen* nuckfito. UCS proposes the following:
ta; For the reccons diueuaced above, all backfits must be l ' ;plemented ' n e J i u t e '. . unlee' an extended uchedule in 1 e r rr f * . e e ce u ? out uels. t, A ct) ficc*iori Cu the ocfe./ cf continued operation ,e . ;t : e r - . .- t. . ; . . ; r . , i t,a i n g. conditions: i ,.ii ;. L ' .na 1.6- Ge T i .T, e d b y 1 i C e n S c e S by l T, m c - , , . . .. - _x-a- '- f 4 r l 'c nc
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;. i :fh* h 7v$l5 ' f. 5 M 'k'? b $,' ,W .i ;b l > ?, .k . f 'A ff ijckan.. . : W 19&,Y:B.. . . - ;V , m h ,fI* '{p(f's.mW;G.% yum ?.f.n u A wa m.f hjY l Y~ h .Uh.kijhhf5hQ O ] m. & w } a - . .si */ .* 1 - avoid the disgraceful continuous noncompliance situation that l the Commission encountere<i with respect to environmental , qualification, au reflected i n Cl.I-00 -21. (ii) The justifications must provide a rational basis for a written staff determination that the reactor can be operated safely pending completion of t he specific backfit. Generally, in order to meet this tent the justification must demonstrate that the purpone of the hackfit is being achieved . 1 in some other way during the i nterim period,
- b. '"he Subs tant i ve Co mnonone l
Th e s u b a r e n t i / t:. component of backtit reform as propoced by I the industry involven establianing a rest.rictive atandard tha't backfits mus- meet before they may be imposed on reactor 1icensees. These pr ) posed r e
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] two-fold. Firc*., they wc.uld require that the backtit "will subo.an'.ially ennance public health and nafety as a result of improved overall aatety,' (language proposed by the Atomic Industrial Forum). Uceand, they would require nome curt of cost-benefit analysia under which the unquantifiable degtee of additional protection that would be provided by the improvement must be compared with, and must exceed, or even substantially exceed, the deceptively quanti fiable costs of doing the work. In the absence of any indication that any backfits that - ~ .~' have been required to date were unnecessary, there is no e factual basis for arguing that the Commission needs to adopt , iw. ,- any special backf itti ng standard , . . Defore[th'elcommiss ion' even . ... J.$$ . .. ! . . : .m.e .; c~ ,-..... ...2. ..#.. . ...m oi (. . .M M ,M % Qi?ik ,,.x.... .$.c &, ,v..~ a ;' * : : ,L ~ .: %' . s ,r..-:: ,.;.nea;W:w. og :. .n. ;:) . Ei.,!F. . , V N . , m . . . ..~i .;.:*. ~ ' . .i , , , , . , .m m. y . y v. w.. ,, . , ,; ,;.g . ,, e..*-, q; r,7.. .. q; e.,.- : g y .;Jc;1. , M .. ~;d;4 n : s. . .e W s ,=< .....sy ,ai, , - , .7. ,3(q. . m. . sy $.::.p. ,. n ,ay m. 4 . ' . . . s .,.n.,'.. . .. . e s.. .3 w~,>.... .. ,. L &E O'f, )~i.f % *Q U ]<f.Y3g 'M r ' y} 'e, fy'yf.),. Yb f ' U.k.Ih. k<? .. :,ym. zt lhhf .. , y&fvjlG. $ h).;/ . v&. .: W& ^ A : ..u --v:rx mn , .+ .. ,t, * . -;'0-Instead, they should be left to the established remedy of attempting to deuunntrate under 10 C.P.R. S 2.798 that the purpose of the oackfit does not apply to their facilities. The burden of demonstrating that their facilities do not need to comply with tha r eq u i r e mo n t. must be pl.u:eid upon the li cenaees. In the first place, the Staff doou not have the reuources to l l carry the opponite L iden wits respec* to overy reac'.or, particularly after the Staf f has already carr ied the burden i 1 necessary to support promulgation of the rule in the first place. If the rule survived induatry commen~ and scrutiny, it becomes '.he individuc.1 licenuee's responsibility to demonstrate why it Jhould nut have to cumply. Thete shoali be no need to cutatali ca a ocw admi n ic tr ative nochaniam to implement h i .1 approach. ..icennees sould uimply neek a licenae anondment to permit implementation of tneir alternative approaches. They would :eek i waiver or exception to the r equ i r e.aent under 10 C.F.R. S 2.758 or a aimilar provision develaped specifically for this aituation,, and the request wo;11 be subject to puslic scrutin'/ in a license amendment hearing. Under this approach, all of the goals of a reasonable backfit program would be met, and the interests of all parties would be satisfied. First, the agency would, in.the rulemaking * *J J proceeding, meet its ourden of demonstrating the~need for the ' <c 4 r Second, the burden of demonstrating that the s; v, requirements. . s, ,, .u . . .p . . , 4 N.$1,i.c.,rul'eneed not be met,"woUld properly be placed"on,.the.' party 7 h M f.W ..+ e.. . . . n. ,. .:y- .> ..u,. . .z n k y>ym. . . .. p,,+ y.. .,.. . .:;t*::'.y',t. .. . ...y . w ma::n.t.n .e tw 11n.,*:g. r a;.y ' .. . ., xu. ., f;;,s. . ,, .;,...,,,. <? . . -. .. , . , . . ..M .* .,. , u .ft ,y f,, . ; . . : ; 1 :.h , . . ;! t p n, n. . o,;4.u, 1 ,; .. 4,,,~ - 4; , . , x : ,,n , o y ,. 1 ...<. y'6',Ai %. :1 m:,. .- W . ,. g ;c . .- ,; . . c s. c A . :n, W ;3 g ,, u* 4 . 3 'o y > q;- i@p . r ' d, h., p 4./.'. }.; m. i. .fyat] p .v; - 't .S.. r t.' ' a,* ( y;g. ~ i:. v nc. . M. . . ;,.pf . ,, g.y ;p' M,w;g* 4 i .. .~,,.e .. 5 N,7 . 3 j -ig ' { N.' f #' [$, @'" [ . s,., .7*[I *s
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.g f I .. ' a, 7 ,,l'... y t* o seeking npecial trea'nent. Third, an exempt ion ~ f rom the rule .would be available upon a ahowing that equivalent protection was provided througS a specific alternative. Pourth, the ; determ'ination'would be subject to public scrutiny under the provisions of Section 189(a) o f t.he ' At om i c Ene r gy - Act and the '! i Administrative ProceJure Act. '( b ) If the upgrade is required to meet preexisting regulatory standardo - a "eatch-up" - no new substantive standard is por:nissible since the very purpose of such an upgrade is to meet the saf et.y standard that the plant was supposed to mee in the ficut place. This is the protection r eq u i r ed by the Cox.m l as i un ' : regulations, wnich were sub]ected to the r alemak i ng requi rement a <>f the Admi ni attati ve Procedure Act, anJ wnich .uay-nc be changed without going througn rulemaking. Thua, 'he e.,neept. of justifying propoue1 improvement in the Lacility by some urandard of substantially increased protection, as AIF would require, is irrelevant in this context. The baseline in not the safety assured by the f acili ty as designed and oper ated, but the safety required by i the regulations. That degree of safety must be regained if it is lost or never e.isted. ti e r e , the burden may be slightly different since the staff i has not yet held a rulemaking proceeding. The staff must bear . d 4. th'e initial burden of justifying the catch-up, as set out in . the procedural reforms suggested above. Once the staff roduceS that justification, i t must' he the licensee's burden
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- b e commit.uion'a Questiona ]
1 Much of the pcevioua diucunaion reuponda to the particular -l questions raised by the Commiunion in it3 Advance flotice. For . clarity, however, we addr eca each o f thone queations here, with i l refeteneca to that diucussion as approptiute.
- 1. Ilow abould "backLitting" be' defined! ;
This in an important <1'iention cinee the inductry and, until l now, the NitC have failed to dintinguich between the various f i situations in which changes may be required or to develop . l solu. ions tailored to the uituations. While we appreciate the concern apparently ret'lected in the Commissicn'a cuestion, we believe that arguing over the definition of "backfit" may degenerate into a ueman*.ic game in which substance ju overlooked. Thus, in our view the Commianion uhoulo defline the L term essentially ao it already hau at 10 C.I'.!(. 9 72.42. That uectivn, as applied to reactoru, would read as followu: ! '[0]ackfitting' means the addition, elimination, or modi fication of utr ucturea, nystemu, or components of la reactorl after the license han been-icuued. i It would also be reaaonable to add changes in the operating organization as backfits. The point, however, is not how backfits should be defined, but that the different types of backfits should be distinguished and treated differently. UCS han already ' 1 . . . ~ .1 addressed this issue in some detail. :Sde the discussion of the ' e. ,. ' . distinction between "new rule backfits" and " catch-up backfits.' , j '. .. ., u -:, ; ;:..p.p;s,(e~ i . t' o ., ,. ; . .-7 g -: p. *. , , , t , $b W+ m; . s. ,[Mr.. .;- e. 4. . .
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- a. Management procedorou governing backfitting requirements may apply to all aupectu of reactor design, construction, or operation, including proposed training and staffing changea. Such management proceduren, and particularly
- 1 l any a'ttempts to limit Staff or commiauion diacretion, must not apply to proposed inf ormation requoutu or requouts for analysis l
l or tests, or the like. Theue requesta are vital to the Staff's and Commisuion's ability to keep abreaut of developments and to be knowledgeable of potential uarety problema. The :;ta f f needu r the information that is obtained *.hrough such requesta in order i 1 to determi ne 'whs .her back f it.a .:hould be proposed, and thereby to develop .he justification Cor any teactor i mpt ovements thcit i it may wish to require. To require a uimilar justification for i nf ormati on r e :ueur o would ellectively make thoue requents impossible by depriving the staff ot *he vety information tha. would be needed to justify them. Thia iu particular1y true since the regulation of nuclear power does not involve close review of all aspecta ot reactor design, construction, and operation, but an audit process under which the Staff dependu very heavily upon information provided by the licensees. Its abi1ity to obtain that information muut not be hindered. Safety standard revisiona that are imposed through changes in the Commission's regulations "new rule backfitu" - should be subjected only' to~ APA rulemaking requi rements. The rulemaking proceeding ori'a later 2.758 waiver request is the ? e I r g ,,g {,'.~,p ' f . p@",. f'. . .;;' a'.ppr . .opr i a t, ,e f o =r u m ,f o: t.. A, l ceo'Ec s-o s t ,o ,'r a l u e 4 ., . ; i , . .. ,,,ggg.p g eg,g,,3 - .,,4. .,g L,s 3N.; ; y ' .y. . . s ., ,y y..g . ., ,. w . ~ :1.n:a,,,,.:Ml,. . 3.e.g . x- ..... c,m G;. :n.1,7.~.G b+d ; y.4:.a 3 'i t - jX.h.: M_ ;' Q. *pf<.y&c.a.\p: ,, , ; >, n,p ;x'/,.t.;w.' .,::.1.s.:y a)x . : , I . . ~&,,.. ,. ,- .
- >ug Ay t ;.a l
,. .w.. .! 1 k~e%.p n, $ [pd,.X".Y;&f Y # sy,-:y, ~e 9. yy:,:.w: ...,c 0 'i Md4'jjgG'fs,N q,%;;.a.;g 'Sfd b b IS N.*N * 'i.[k.4}}e [',,1 . y.,% / .**.$N$db 'h(8,(}[$'Sfh hk " h$hh . l * .,: ch. t.. , . . . ~ . . - .6- ~ 3l_ I concerns.and have any commiuJi'on decision be subjected to public scrutiny. The itandarda uhould otherwine be accumed to i govern, l
- b. An previoJuly discuuued, a change in Staff position cannot itself con u t. i t.u t e a b ac k t. i t because it is nothing more.than the Staff's view of how the underlying Cammission regulations may be couplied with. It has no legal significance. The base!ine f rom which propoced improvements must be judged is the Commiccion's regulations and the degree of protection that they require, subject only to the proposition that licenacou may be ab.le to avoid specific new regulatory requirements where ~. hey obtain a waiver. Beyond -
that, only '.he operating licence may acrve as any sort of baseline for particular reac* ors. Fut tne reasons discucced above, he ca n u . r u c *. i o n p e r m i t. d>es no- provide specific approvals from which enangec can be determined under the definition of backfit.
- 2. The question of a standard for determining whether to impose a proposed !back t i tting requi rement" is addrenced in the section on tha substant.i ve component of backfit reform. l
- a. As discussed above, the Atomic Energy Act does not authorize the commission to consider economic costs in determining whether a safety requirement should be imposed.
n . , . / , '['.,.f, f.Q,,lb.i.hThe .- - degree of justification requi red by the staf f is discussed in the section on .he t procedural .:omponent of l ' .. ? l ' m' ~., O ,:..n; .. c,- - ,^.cf# . 35 t.j. . m .. - l, i jff 6%@;y:hblg %s.e' fc ' 1,4.in , g ypftyQ:,
- w%. .f. ..b ackamp f i t .lh'#NE$. rm'E.
A& 2 y 3R,M. mu ?;iW 9 r e f o ap: . ': u, 4.wggif.gpg.gh' a m ng w g*s w.. i m pp,3Q%q*h@c.n%v.fl. wa w g, wtq:gwaq b.s ~ 9 ....w a, ,>. L , ,. .. .s.- ,e. . jg ,c.. -.y g.. gdgm.nw .c.g 4g4-.fwWe.g n e ,2.- ~ .a g -.. .c. ,m:yme m . A . w . m. v ; vn . M 8 1 2 b b k % M.;y *W ;" j$:<lkik* pW., x' ' {.. . ~ y,6p' . -J3-( c. There ahodld alwayu be a presumption in favor of the safety benefit to be derived from a backfit regulations or other improvement. Ilowever, there should be no standard for comparing such benefita tu economic contu because such a .l comparison is illegal. In addition, aa E.hiu question l Implicitly.. recognizes, it is essentially impousibic to attempt , to compare the vital but intangible bynefita of safety l improvement s againut the f alsely precise quantitative estimctes of the costs of the improvement. Congress has mandated that - safety be protected without regard to cost, and has thereby determined that no such comparison will be allowed. \ backfit ..is
- d. The only chowing necessary to justif^y a that (1) the Commission has adopted the requirement as a new regulation necedaary to protect the public health and cafety or l
(2) the improvement ia neceasaty to regain the safety protection that was intended wnen the plant was licensed but l that subsequent events have shown dirl not actually exist. As oreviously discussed, PRAs must not be used for this purpose. 1
- e. For the reasons discussed earlier, it is not appropriate to consider any changes requi ted prior to the issuance of an operating licenue as backfits. They are simply l
actions necessary to comply with Commission safety , .k r. ,~: . 'h regulations. - -( ' :: "Y ' ; A;.' .' b;yJ p; .:;,f , , .g .c .6 :.s, t.;r . f . ,. s3g.,,;a - ., 3 f N~ .e 3 ' E New r u l e ba ck f i t's , tha t . j s,%6ang es to"theTCo mm i ss ion s'N'$$$ f . o .c . 1
- u. ,y :s m ;.. . . gs,;y;;; c .
i' safety regulati'ons,'should lie.' imposed through'lruleiitaking, with- t;\$:..;p[i . AC
- . ~
. . . , . . . adG. . . . . . - V! '. ALG . ifO . f .:';f.f%g.i. ..t4< " , lu i.pcens p yyg.w ee .s' yb p near i n ' t h e 'Vyb uk r den ~6 -h f ?p r ovi.n ;th gy ;.3;;. m 3.g,qyt 'r%g .m w. f p .:. n.. : n g a s wpt> n y.s&, 2 wa .w n , u.
- c i nGl'm
- m -.
n- . BY . ,$X . ~ ~ . Q ~ \ } e:y.ax; .t , nececuary at thJi r plant H. Cat ch-up ti.syk f i r n uhuuld be implemented as auggeureil in rho accti>n on ihe proce< lural
- component of backfit retorm. ,
1
- 4. See the discundion of r$cheduling under the cection on the proceduraI componen' of boekfit tetorm.
- 5. Any appr oach t.o i mp<saing now r equi rements muut rely upon well established technical principleu. PRA's may not be employed. The threshold in all caseu remainn compliance with Conmission regulations and protection of the public health and .
safety. No " approach" to backfitting changes that principle.
- 6. In order to enhanc'e certainty .ind the overall saf ety of
~ nuclear power, as well as t.he commi ssion's and i ts Staf f's ability to addreus all of the complex issue, the Commission should resist efforr.c .o adopt alternative to backfit requirements ac,much as posaible. The only excuse chuuld be that the backtit ic not needed at the particular plant because the design"is such that it would not serve or is not needed to serve its specific intended purpose. i a 1 . r. . s , t 8 '*p .+ *f
- 4. . ,
p,,, . --4's . . .. . j a,l'). , bjf_y,, '. i,,,\, l, . ,3 . 'Ej,[i..i ; .f )l.].Q.'~rQ:y. * [5?. ' l.r f * . ? kh.f.f.k,ow,,. - .. .a . . ;, .. , '..c@q, 1., ,7Cg4'f,; '. ,..V', y i,. % - y * .J' i .., . n' $ ., 'i ' i , , , ;1.r n.%l. .j$s ,if. y3 / f ; y' .7, a t.. . .gq;p $,gy,ogyp.3.'* j,'m, ,v_.; , ; , , qy.p! &W t d_ h W. .. 6 s .c. :$y.M . y , ,- .:.M . +:':%.. lt 4 ;L91:t.!,L,. , ch;.u ;?1 '-& : ff.4Mt iivx;te,r. .y W", 2:,c: kW4...
- '.cK5 L - .t.),QQ ,;f y& *' $pk
>n k.k'Q.- ,,jh7, ' .c ,8, . y ; wgogr.y% f pgy_p',q u g, m a .<..a . x J.k {'t .- ~ ~ IM. 1 i l' , e 1 i t, o s i, I .9< 6 \ p t-q United States of America tiuclear Regulatory con 3 mission 1 ) Revisior; of Backfitting Process ) for. Power Reactors, ) tio tice "o f Proposed ) Rulemn king , 10 OFR Parts 2 and 50 , ) 49 Fed.- Reg. 47034 ) ( flo v . 30, 1984) ) t Union of Concerned Scientists g ments on Propoced "Eackfit" Eule i The ' Un io'i' o f tonce r ned Scientists has provided !!RC with l d-tailed comments on t 's two previous proposals in the series on "backfi.ts." "Commen tc o D the Cnion ci Concerned Scientists on . ] Proposed Revision of the:.Lackfitti.nd Process for Power Reactors, . A"PR 48 Ped. Re g . 44217, C c ". . 28, 1983 (hereinafter "';C S 1983 3 Comments") and " Comme n ts by l;n ion o f Conce rned Me ien tis tc on j' i Revision of Eacxfi~tting Process for Power Reactors, 49 Fed. Rec. - i 16 9 0 0,, A n e 4, 1984 (hereinafter "CC3 198 4 Comme nts") . Those comments are attachec and incorporated here witt and will not be repeated. This document deals primarily with questionc raised by the most recent rederal Register notice. The questions posed in the notice are d iscussed below : i e ). b m
- f. s o
) 7,L c c: ;4" ~(' }7'n'? (: Vj . 99 1. should'S150.109 also apply to backfitting: imposed throug h t r rulemaking?. ~ <r- t.
- .Q '
f (No , Section 50;109Lshould.,not' apply 1to-rulemaking, if ittis w adopted. in. either the form proposed by the' NRC or' that advocated .by thesindustry.. ' As ' wei hav e demons tra ted ,. the'- Atomic Ene rgy'. Ac t M does'not' permit the consideration of cost'in determining' minimum ' safety standards,1 .much"less does it permit:the.use of a cost-benefit standard'~such-as that contained in the. proposal . 'which? skews the' determination against safety by requiring "that 'thefi ncreased1 protection will clearly. exceed the direct and indirect cost of implementation. of the f acul ty." 49. Fed. Re 9 . - . 4 7 0 3 5 , . Co l . 3. 4 Mor can an ~" appeal" -to.the CDC be permitted from a . requirement imposed by rule. The legalirequirements applicable to rulemaking are' contained in the Federal Administrative Frccedure.Act, 5 USC 5 553.. Licensees participate f ully in such decision making, which provides aJfull forum for them to openly present all f acts and arguments in their favor in the context of a legal process which theLlaw-requires to be open to public scrutiny-and comment. The Commicsion may not c i r cum ve n t that process by1 permitting " appeals" outside of the public forum to 'its Ef;ecutive Director. Such a process would clearly be ./ f # illegal. If licensees quarrel with a rule they may appeal it to court. If their quarrel is based on new informa tion, they may file a rulemaking petition or, if appropriate a request for ,q,- , *B 'l gr ya $' c UCS 1983. Comments, p. 4-7; UCS 198 4 Comments , p. 5 J ,f* t-I . .. 5l: _ _ _ _ _ _ _ _ _ _ e a mph.. v +, , w * . -w ft3--- +y-^3<p. - ' &; ' \ _ G y g.- , .s y se .f, ,;[ M ir Q a wA . a .; , .-3 . @, f f . . .W , , jj.k j Mesemptions The re.'is: no dea r th of ..lawfu11 and e f f ective .means L f or L lice ns,e to.presentltheirl positions.to the Commission.- 4; . . u. .s < '
- c. S'. 50.109 limit backfitting to backfits " imposed
~ c/1 Y l2. Should by -rule, regulation: or. order?. If the imposition of , ti gl 'backfits is not limited'to rule,1 regulation or order, what-other mechanisms should be' employed? 3. The'obvaous purpose or.this provision proposed'by the . industry is to. make ,the' process of ' correcting saf ety problems so-i ' cumbersome as to stop . it completely. It -is v i t tually unk'nown f o.r. o the NRC to complete a rulemaking' inLless than a'. year ; most take ~ b Moreover, in combination with the industry's much longer. 'de fini tion of " regulatory - requirements"- (The - so--called " impact" / . approach) ; othe ef fect would undoubtedly be to eliminate the - t. bondition%hich the Supreme Cour t' f ound legally ; necessary to l[ h l> Justifyftwp-stage licensing. The Supreme Cour t approved a \ licensing process whien permits. construction to go forward with .i L unresolved safety issues and on the basis of preliminary designs j i chly'on the understanding that "the Commission is' absolutely denied any3 authority to consider (the utility's] investment when m. 7q acting-upon an application for license for operation." Powe r .4' 1 Feact:r Development Co . v . Union, 367 U.S. 396,-414 (1961). If J. f' thel prospect of any change at all after the granting of a gon.truction s permit to whr.t licensee intended, must be justified n, by elab' orate cost-benefit analysis and must be g _ a M ., UCS believes that even the NFC's proposed approach violates the ; conditions necessary for approval of two-stage licensing. 'However, the inductry's proposal is so overreaching in this c , r thgard.as to leave no room for reasonable argument. i' d I I ) , t k. 6 - - - - - _ _ - - . _ - ?
- o. . 4 t
I imposed by rule, the Commission will have fractured the under-pinning of this crucial precedent. The unintended consequences could be precisely the opposite of what NRC desires.
- 3. Should a documented analysis of a proposed backfit come before the backfit is issued or only after an affected licensee lodges an appeal? i There should be no requirement for a detailed analysis unless the licensee appeals. Such analyses in the absence of an appeal would be an utter waste of time and resources. In a period when NP.C's budget is greatly restricted, such waste cannot be justified. We cannot imagine any rational reason for s ug ge s t i ng otherwise except perhaps the hope that the prospect of being required to run a time-consuming obstacle course, particularly wnen manpower r.esources are limited, might itself deter staff from proposing cafety improvements.
- 4. Should backfitting be defined as the impositi'on of new regulatory requirements or the modification of previous requirement (the cause) or defined as a " modification or addition required by the Commission to the facility or to the s t r uc t u r es , systems or components of such f ac i. l i ty , the design thereof, or the procedures or organization required to construct or operate such facility" (the e f f ect) . What is 4 the basis for this position? l j
i UCS believes that neither definition is appropriate, for i l UCS 1983 Comments, p. f reasons we have previously specified. 10-30. Both would include within the definition of back#it changes made between the issuance of the construc tion permit and i tne operating license. Since the construction permit is granted l 1 l by l upon the basis of only preliminary designs and therefore, ) I ] definition, is not and could not be predicated upon a f ull NRC j review of safety questions, the resolution of safety issues j before the operating license is issued are not "backfits." ! Moreover, it is not clear that even the staf f's definition t l recognizes the crucial distinction between actions necessary_ to j bring licensees into compliance with currently existing minimum safety standards ( i.e . necessary to meet the current rules) and those which address a problem not addressed in the current rules impose a "new" minimum saf ety standard) . The former are (i.e. \ not fairly considerea "back f its" since they are necessary to meet pre-established standards. Wh ile the staff excludes f rom the definition of " regulatory , ~ requirements" rules, regulations and orders "to require compliance with the Commission's rules, regulations and orders," the absence of any explanation of the meaning and scope of this exclusion in the explanatory material and its limitation to rules Any regulation and orcers raises questions about what is meant. rule should clearly and f forthrightly address this issue. If forced to choose between the two alternative definitions of " regulatory requirements" offered, the :;RC's is preferable. Indeed, the industry's definition is so overreaching as to be absurd. It would quite simply include any change to what the licensee intended to do, regardless of whether the licensee's intentions met the MRC's rules which are the minimum necessary for safety, whether the safety issue in question had ever been f addressed at all prior to issuance of the cons truc tion permit, or j f whether the licensee's intentions had even h-l c i l- i . 4 I I been known or could have been known to NRC at the time of the ' to a c .p . r ev iew. Adoption of such a rule would amount 1 near-total abdication by NRC o f its fundamental responsibility to determine what is necessary for safety and to require that it be done. As we have stated above, UCS believes that the backfit definition proposed by the industry is inconsistent with the Atomic Ene rgy Ac t, i
- 5. The industry's proposed standard for justification of a !
backfit is " substantial improvement in the overall safety of the plant considered over its remaining life." Is it appropriate to include the concept of "over its remaining life?" What other standard could be used? It is not appropriate to includ e the concept of "over its remaining life" for the.following reasons:
- 1. Such an analysis can only be based on probabilistic risk assessment. For the reasons previously g iven, that methodology is not appropriate to this application. UCS 1963 Comments, pp. 7-9.
- 2. The concept creates an incentive for delay and obstructionism and rewards those who delay the most.
j
- 3. "Be ne f its" are cur rently expressed by MRC in terms of l annual average dose " avoided". This is inconsistent with the
] concept of " remaining life"; one cannot have it both ways. )
- 4. The concept does not account for the fact that problems caused by aging and deterioration of equipment are likely to increase as a plant ages. t;o r eove r , the older vintag e plants i
have already been grandfathered from many newer l I i l 1 l ' L safety standards and thus are likely to be more dangerous u than-the newer ones. Application of this concept would ! y aggravate that disparity.
- 5. As a general principle we see no justification in law or sound: policy for subjecting the people around older plants to greater risk that those who live around newe r plants, ye t the concept would do precisely that.
- 6. To what extent may the Commission consider costs, .
includ ing - economic costs in backfitting decisions under the i standards and processes proposed in S 50.109? What is the basis l for the position stated? See UCS 198 4 Comments , pp. 4-5; UCS 19 8 3 Comments , pp. 3-7. It is also the opinion of NRC's General Counsel that costs cannoE , J yenerally be considet d in determining compliance with l regulations. H. Plaine to Commissioners, Memorandum Sub ject: Consideration of Costs f or Sack f itting and Other Sa fe ty Rela ted Costs in "RC Processes, p. 4ff, May 4, 1984. l The NRC suggests that, unless costs can be considered, "the regulatory process takes on the characteristics of a quest for a risk-free plant." 49 Ped. Reg. 47036, Col. 2. Th is asser tion is I based explicitly on the " premise" that all plants meet or will 3 The Commission may be interested to know that eJon without authorization, CRGR is currently using the concept. When l reviewing the sta f f's proposed ATWS r ule, CEGR "s ug gested" that certain plants "may have reached an age where the benefits of full implementation of the ATWS rule might notMinutesjustify the costs of CRGR involved." V. Stello to W. Dircks "
Subject:
Meeting 34," hay 4, 1983.
t v .: . L ia k L ' meet all current rules even without the backfit being
' Ij[. , . Co l s . 1-2. That' premise does not accord with
. considered.
L ireality. As weLhave. demonstrated, the' vast majority of.
"backfits" have been required to ensure that' plants meet 1the basic:rul'es in effect at the time they were licensed.' UCS 1983' l
Comments, pp. 10-18. This~ fact has never been d'isputed by NRCLso
.far as.we are aware, a lthoug h it is totally at odds with the
" premise"' necessary to the Commission's' assertion that_ it may
' balance costs against benefits.
It ~ is manif estly d disingenuous to suggest. that URC has been or is in the business of ordering. changes that go beyond those nececcary for safety. It1may have made mistakes ('in both d i rect ions) in deciding what was necessary, but it has uniformly
- purported to' apply the " reasonable assurance of safety" standard.- It has not ordered licensees to spend money to make changes unless it believed them to be necessary to meet that standard.
First, comments ; A few other questions should be addressed. are asked on the advisability of imposing the backfit standard on licens,e amendments. In UCS's view, such an application would-be contrary to law. The Atomic Ene rgy. Ac t . f or bids a license to be issued if it health and safety of the would be " inimical to the . . . See also S 2232(a). These public." 42 U.S.C. S 2133(d). provisions are implemented by 10 C .F.R. S 50.57(a) which _j
}p - , , s _9_
-n rec;uires' the. NRC.Lto find' that 'the: f acility will operate in conformance with;the rules.andLthat there is reasonable assurance 1 3
1 Lthat the.publ'ic health'and safety will not be endangered' x License amendments are governed by the same standards.
- t h e r e by, .-
10 CFRL 5 50.92(a) . .There.is no warrant.in the law to allow a l
- License'e to accomplish by' amendment what it could notfaccomplish
- P by application of the standards which apply to the initial
'1'i c e n s e .
Additional . comment 11s; necessary on the cost-bene fit analysis mandated by the proposed S 50.109(d) (1-7) ._ Even were it
. permissible to consider costs, the proposal does so i.n.a way that is grossly blaced in 'f avor of' costs as' against benefits. As Commissioner Assulatine' notes, every conceivable cost is counted,
~
f
'but -an entire and very substantial class of benefits is inexplicably excluded; n ame ly , the avoidance of the monetary costs associated with an-accident, such as damage to the plant, i
'of f-si te p roper ty damage , the direct and indirect costs of evacuation, relocation, decontamination, and possible-compensatory damages Ecr harm to members'of the public. Even for
.the TMI-2 accident, which is far f rom the wo r s t-case , o f f-site 3 I
1 i insurance claims totaled 31.25 million dollars as of March, s I 1983. NUREG-0957, "Th e Pr ice-Ande r son Ac t- The Th ird Decade. " GPU estimates that cleanup will cost over.1 billion dollars. The g ! I' . total costs of an accident involving substantial off-site i releases could easily be in the billions of dollars. It is an obvious inequity to count even suc h " costs" as NRC 1
p}
<e - <
.- _10 W
resource expenditures'against'a backfit but refuse to considerJin
~
f avor. of ta' backfit' the full benefits. associated with avoiding an accident, .nor- has NRC attemp ted to provide a Lreason for this.- It isl arbitrary and-without justification.
~
h
' Comments on Commissioner Asselstine's Proposal In genera'1, UCS endorses Commissioner Asselstine's analysis of the backfitting issue and believes that his. proposal for a backfitting standard comen very close to the . approach required to accomodate the law to the historical realities of NRC licensing
, and sound policy.' We believe that two matters deserve further consideration.
F i r s t ', Commissioner Asselstine would prohibit consideration"~ i of monetary costs at the operating license stage only for :
~
.backfits.related to'"sa.fety matters that were 'left unresolved at i
the time of issua'nce o f the construc tion pe rmi t." 4 9 Fed. Eeg. 47041, Col. 1. Unfortunately, the current construction permit review process does not permit a reliable determination of which icsues were or were not " resolved" or, if purportedly " resolved," what facts were considered in reaching the resolution. For i example, it might well have been argued that environmental : I qualification was " resolved" for . all construction permits since all wcre theoretically supposed to be in compliance with GDC 4. Nor do we believe that all such cases would alternatively be encompased within the " mistake of fact" exclusion contained in Commissioner Asselstine's S 109(b) (3) . Deyond mistakes of fact, I 1 j the problem lies also in the superficiality of the review.
L2, i
. UCS beleives that so long as c.p.'s are to be granted on the basis of preliminary design concepts, it is not leg it ima te to consider as "backfits" changes required between the c.p. and the operating license or to consider costs at that stage.
Secondly, Commissioner Asselstine's proposal does not provide for formal public participation in backfitting decisions; only the licensee is provided an opportunity to comment.4 UCS believes tnat the decision making process should be open and accessible to all persons who might be affected. UCS 1984 Comments, pp. 8-11. l l' Conclusion for the reasons stated above, UCS urges the Commission not ta adopt the proposed rule. It would greatly improve over current practice by requiring the cost-benefit analysis used by CRGR to be public in cases where CRGR disapproves a backfit. By
,. -- l,
&-l llf\,, f. i i
Ellyn E. We is s ! 11a rmon , We iss & Jordan f
~
General Counsel Union of Concerned Scientists 2001 S Street, N.W. l Suite 430 Washington, D.C. 20009 (202) 328-3500 dated: January 29, 1985 l I}}