ML20238C351
| ML20238C351 | |
| Person / Time | |
|---|---|
| Issue date: | 12/02/1987 |
| From: | Zech L NRC COMMISSION (OCM) |
| To: | Gejdenson S HOUSE OF REP., INTERIOR & INSULAR AFFAIRS |
| Shared Package | |
| ML20236X303 | List: |
| References | |
| NUDOCS 8712300213 | |
| Download: ML20238C351 (61) | |
Text
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$Q 0toog'o, UNITED STATES
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~ j NUCLEAR REGULATORY COMMISSION
.E WASHINGTON, D, C. 20$$5 k.... o#
December 2, 1987
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CHAIRMAN l
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r The Honorable Sam Gejdenson, Chairman Subcommittee on General Oversight and Investigations Comittee on Interior and Insular Affairs United States House of Representatives Washington, D.C.
20515
Dear Mr. Chairman:
Enclosed are answers to questions concerning the NRC's backfit rule that you sent on October 27, 1987. The answers to questions Sj and 6 will 4
be provided under separate cover.
i Should you have any further questions, please let me know.
Sincerely, I
k.
l Lando W. Zech Jr.
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Enclosures:
As stated cc:
Rep. Denny Smith 4
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h 300213 871202 MS NRCC CORRESPONDENCE PDR j
,s QUESTION 1 (a) Is there any information in the Federal Register publication of the Advanced Notice of Proposed Rulemaking, the Proposed Rule or the Final Backfit Rule that documents that backfitting had been a problem (i.e., that the NRC had been imposing unnecessary safety upgrades)? If so, please identify precisely where such documentation appears.
If not, please explain why not.
ANSWER Nothing in the three named Federal Register publications, or any other Federal Register publication, documents that the NRC had been imposing unnecessary safety upgrades. Backfitting was believed to be a problem not because the Commission was persuaded that there had been unwise backfits, but because we could not document that the ones which had been made were wise or unwise. The principal reason the Commission repeatedly gave for promulgating the 1985 J
revised backfit rule was that " documentation in too many cases ha[d] been non-existent or inadequate to identify and justify the safety and cost consequences of past NRC-imposed backfits." 50 Fed. Reg. 38097, 38104, col. 1 (September 20, 1985) (final rule); 49 Fed. Reg. 16900, col. 1 (April 20, 1984)
(Manual Chapter); 48 Fed. Reg. 44173, col. 2 (September 28, 1983) (Po? icy Statement on Backfitting).
]
In the midst of this uncertainty, there were indications that, indeed, some backfits had been unnecessary or even detrimental to safety.
As we reported to you in earlier testimony on backfitting, the Commissior's staff had 1
f QUESTION 1 (Continued) concluded that the stonn of backfitting after TMI had resulted in a " potential safety problem of unknown dimensions." Moreover, many Commissioners had
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become ccnvinced through visits to sites that some backfitting had been unwise. Even the most vigorous dissenter from the 1985 revision of the rule, former Commissioner Asselstine, said, "After havir.g visited a number of sites with operating plants and plants under construction, I am persuaded that there have been some instances in which the NRC staff has required changes'to plants that are costly and of dubious safety value." 49 Fed. Reg. 47034, 47039, col.
2 (November 30, 1984) (Proposed Rule).
Finally, Congress' own General i
Accounting Office concluded in a report issued two months after the 1985 i
revision of the backfit rule that there had been cases of backfits that had "resulted in questionable safety benefits..." Nuclear Regulation:
Process for Backfitting Changes in Nuclear Plants Has Improved, GA0/RCED-86-27, at 37, 37-43 (December 1985).
Despite these indications, the Commission concluded in 1985 that at least the cumulative effect of numerous regulatory actions taken after TMI was
" undoubtedly a significant improvement in safety." 50 Fed. Reg. 32138, 32143, col. 3 (August 8,1985) (Policy Statement on Severe Reactor Accidents). But even without documentary proof that some backfits had been useless or worse, no one doubted that there was a need to make sure that future backfits actually improved safety and that there was a documented basis for ary conclusion that safety was improved.
In its comments en the proposed rule, the Union of Concerned Scientists said that poorly managed backfitting "may both result in unnecessary costs and be detrimental to safety" and concluded
f QUESTION 1 (Continued) l that"[m]anagementshouldbemademoreefficient,andtheStaffshouldbemade accountable for its positions." " Comments of the Union of Concerned Scientists on Proposed Revision of the Backfitting Process for Power Reactors, l
ANPR 48 Fed. Reg. 44217", at 13. And the GA0 concluded in its December 1985 report that, with a revised rule and new management systems, "the framework for effective backfitting management is now in place." GA0/RCED-86-27 at 3.
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1 QUESTION 1 (Continuod) \\
i (b) By letter of 9/29/83, Chainnan Palladino acknowledged to Senator Mitchell that he knew of no instances of unnecessary backfit requirements (copy enclosed).
(1) Please identify all instances of unnecessary backfits occurring from September 29, 1983 to October 21, 1985.
Please explain in full why each backfit was unnecessary, i
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ANSWER.
We are not aware of any unnecessary backfits during this period. Prior to adoption of the 1985 Backfit Rule, the CRGR Charter and individual office I
procedures were used to manage backfitting of nuclear reactors. Actions judged necessary to provide adequate protection to the public health.and safety were implemented without regard for cost. Modifications proposed to improve safety beyond an adequate level were implemented when judged to be cost beneficial.
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I QUESTION 1 (Continued) '
(2) Please identify any other information from September 29, 1983 to the present on which the Commission has relied in making its determinations to issue a revised backfit rule.
i ANSWER It is not clear from your question whether by " revised backfit rule" you intend the 1985 revised rule, or the proposed 1987 revision, or both. We assume you mean both. With respect to the 1985 revision, you are in effect asking for the rulemaking record. Therefore, we are including with these answers the Certified Index which we sent to the Court of Appeals in the litigation over the backfit rule. We will, at your request, provide you with copies of any or all of the documents listed in the Index. We would add that nothing has happened since the 1985 revision to suggest that we reconsider the basis for that revision.
These reasons, of course, continue to support the clarified rule which was proposed pursuant to the court's decision on August 4, 1987.
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4 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
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UNION OF CONCERNED SCIENTISTS, et al.,
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Petitioners,
)
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v.
)
No. 85-1757
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l UNITED STATES NUCLEAR REGULATORY
)
COMMISSION,
)
)
Respondents.
)
)
CERTIFIED INDEX OF THE RECORD The U.S. Nuclear Regulatory Commission ("NRC" or 1
"Cornission") hereby certifies that the material listed and described below constitutes the administrative record underlying the Cornission action which is the subject of the instant Petition for Review.
Respectfully submitted,
}1 (
SAMUEL Z CHILK Secretary of the Corrission Dated at Washington, D.C.
this lo 7 day of December, 1985.
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BACKTITTING RULE-MAXING RECORD 4
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Occket No. PR-50 DOCKET FILE INVENTORY (49 FR 47034)
In the Matter of REVISION OF BACKFITTING PROCESS FOR POWER REACTORS y.0LUME 1 Document Docket Date of Title or No.
Date Document Description of Document 01 11/28/84 11/27/84 Federal Register Notice - Notice of Proposed Rulemaking (published 11/30/84) 02 12/31/84 12/27/84 Coments Federated Conserv4tionists of WestchesterCounty,Inc.(Cunningham)
(1) 03 01/03/85 12/30/84 Coninents Ecology / Alert (Nemethy) (2) 04 01/04/85 12/28/84 Coments Lynne Goodman (3) 05 01/22/85 01/15/85 Coments DCRE (Hiatt) (4) 06 01/24/85 undated Comments Marvin I. Lewis (5) 07 01/25/85 01/22/85 coments Sargent & Lundy Engineers (Kane) (6) 08 01/28/85 01/24/85 Coments Jchn D. Harris, P.E. (7) 09 01/28/85 01/25/85 Coments Arkansas Power & Light Co.
(Er.cs) (8) 10 01/28/85 01/22/85 Coments Welles Hotchkiss (9) 11 01/28/85 01/28/85 Coments Bechtel Power Co. (Horowski)
(10) 12 01/28/85 01/25/85 Coments John D. Parkyf: (11) 13 01/28/85 01/23/85 Coments Northf.ast Utilities (Counsil)
(12) 14 01/29/85 01/28/85 Coments Carolina Power & Light Co.
(Zimerman) (13) 15 01/29/85 01/29/85 Ccmments Delian Corporation (Wood) (14) 16 01/29/84 01/28/85 Coments Edisen Electric Institute (Kearney) (15) 17 01/29/85 01/28/85 Coments C-E Pewer Systems (Scherer)
(16) 18 01/29/85 01/29/85 Coments Department of Energy (Vaughan)
(17) 19 01/30/85 01/25/85 Coments Arizona Public Service Co.
(Brunt) (18) 20 01/30/85 01/29/85 Coments Baltimore Gas and Electric (Lundvali) (19) 21 01/30/85 a/29/85 Coments Atomic Industrial Forum. Inc.
(Walske) (20)
PR-50 (49 FR 47034) 22 01/30/85 01/29/85 Coments Nuclear Utility Backfitting and ReformGroup(Reynolds)(21) 23 01/30/85 01/28/85 Coments Carolina Power & Light Company (Zimerman) (22) 24 01/30/85 01/30/85 Union of Concerned Scientists Request for Extension of Filing Coments on Proposed "Backfit" Rule (Weiss) 25 01/31/85 01/28/85 Coments GPU Nuclear (Thorpe) (23) 26 01/31/85 01/29/85 Comments Union of Concerned Scientists (Weiss)(24)
VOLUME 2 01 01/31/85 01/28/85 Coments Rochester Gas and Electric Corporation (Arthur) (25) i 02 01/31/85 01/29/85 Coments Wisconsin Public Service Corporation (Hintz) (26) 03 01/31/85 01/28/85 Coments Duke Power Company (Tucker)
(27) 04 02/01/85 01/29/85 Comments Southern Congany Services (Long)(28) 05 02/01/85 01/29/85 Comments Ebasco Services Incorporated (Horrell)(29) 06 02/01/85 01/28/85 Coments Consumers Power Company (VandeWalle) (30) 07 02/01/85 01/29/85 Coments Burns and Roe, Inc. (Brolin) i (31) 08 02/01/85 01/29/85 Coments Westinghouse Electric Corporation (Pahe) (32) 09 02/01/85 01/30/85 Coments Ouquesne Light (Woolever) (33) 10 02/01/85 01/29/85 Comments Yankee Atomic Electric Company (Edwards)(34) 11 02/01/85 01/28/85 Coments Omaha Public Power District (Andrews)(35) 12 02/01/85 01/29/85
' Coments Virginia Electric and Power J
Company (Stewart) (36) 13 02/01/85 01/29/85 Coments Pouston Lighting & Power (Wisenburg) (37) 14 02/01/85 01/29/85 Coments South Carolina Electric & Gas Company (Dixon) (38) 15 02/01/85 01/29/85 Comments Comenwealth Edison (Farrar)
(39) 15 02/04/85 01/31/85 Coments Maine Yankee Atomic Power Company (Whittier) (40) 17 02/04/85 01/29/85 Coments Icwa Electric Light and Power Company (McGauchy) (41) 18 02/04/85 01/30/85 Coments Illinois Department of Nuclear Safety (Lash) (42) 19 02/04/85 01/29/85 Comments Public Service Electric and Gas Company (Mitti) (43) b
PR-50 (49 FR 47034) 20 02/04/85 01/29/85 Comnents Stone & Webster Engineering Corporation (Bradbury)(44) 21 02/04/85 01/29/85 Comnents Florida Power & Light Company (Williams)(45) 22 02/04/85 01/29/85 Comments Niagara Mohawk (Mangan) (46) 23 02/04/85 01/30/85 Connents Philadelphia Electric Company (Boyer)(47) 24 02/04/85 01/29/85 Connents Wisconsin Electric Power Company (Fay) (48) 25 02/06/85 02/04/85 Connents Vennent Yankee Nuclear Power Corporation (Conway)(49) 26 02/07/85 02/05/85 -- - Connents Mississippi Power & Light Company (Dale) (50) 27 02/08/85 02/05/85 Connents Babcock & Wilcox (Taylor) (51)
I 28 02/11/85 02/06/85 Comments Washington Public Power Supply System (Sorensen)(52) 29 02/14/85 02/01/85 Connents Joseoh Somsel. P.E. (53) 30 02/19/85 02/08/85 Comments 1111nois Power Company (Spangenberg)(54) 31 02/21/85 02/18/85 Connents Gilbert /Connonwealth (Meek)
(55) 32 03/01/85 02/27/85 Comnents Boston Edison Company (Harrington)(56) 33 03/07/85 03/05/85 Comments Southern California Edison Company (Medford) (57)
Comittee on 34 03/29/85 03/12/85 Comments NRC Advisory (Ward) (58)
Reactor Safeguards 35 09/18/85 09/17/85 Federal Register Notice - Final Rule 1
%KI7 I}LI 11NENTOP.Y OCCiti"o.
'R-50 (48 FR 44217)
In the Mitter of b
f REVISION OF 8ACKFITTING PROCESS FOR POWER ' REACTORS YOLUME 2
- c; ent.
Oc: Re:
Ct.;e of Ti:)e er o.
Da te Docume-nt Descri ction of Documer.t 11/01/83 10/28/83 Coments Standardized Nuclear Unit Power Plant System 01 (Nicholas A. Petrick)
(27) 02 11'/D1/83 10/28/83 Coments South Carolina Electric and Gas Company (O. W. Dixon, Jr.)
(28) 03 11/02/83 10/28/83 Coments. Westinghouse Electric Corporation (E. P. Rahe) (2 04 11/03/83 10/31/83 Coments Rochester Gas and Electric Corporation (John E. Maier)
(30) 05 11/03/83 10/27/83 Coments The Cleveland Electric Illuminating Company (Murray Edelman).
(31)
(32) 06 11/03/83 10/30/83
. Coments Marvin I. Lewis 07 11/03/83 10/28/83 Comments Duke Power Company (Ha1.8.. Tucker)
(33) 08.,,
11/04/83 10/JB/83 Comments Alabama Power Company (F. L. Clayton, Jr.)
(34) 09 11/4/83 10/31/83 Coments Louisiana Power and Light Company (K. W. Copk) (:
10' 11/04/83 10/28/83 Coments Portland General Electric' Company (Bart Withers)
(36)
P 11/07/83~
11/02/83 Coments Public Service Company of Indiana (S. W. Stiields (37) l E:_
!E -y 12 11/10/83 11/04/83 Coments Patrick Merlee (38) 11/10/83 10/28/83 Coments Northeast Utilities (W. G. Counsil)
(39) 14 11/15/83 11/03/83 Coments Wisconsin Environmental Decade (Peter Anderson &
Leslie Amrhein)
(40) 15 12/05183 11/28/83 Coments Public Service Electric and Gas Company i
(R. L. Mit:1)
(41) 16 12/07/83 12/06/83 Coninents Harmon & Weiss (Jordan) (42) (see Consnent No. l' l
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DOCKET FTLE INVENTORY Occket No. PR-50 (48 FR 44217) l In the Matter of REVISION OF 8ACKFITTING PROCESS FOR POWER REACTOP.S VOLUME 1 Document Docket Date of Title or No.
Date Document Description of Document 01 09/26/83 09/22/83 Federal Register - Advance hetice of Proposed Rulemaking (published 09/28/83) 02 10/24/83 10/19/83 Coments Susan L. Hiatt (1) 03 10/27/83 10/23/83 Supplemental Comments Susan L. Hiatt (2) 04 10/27/83 10/24/83 Corinents Bechtel Power Corporation (H.O.
Reinsch)(3) 05 10/28/83 10/26/83 Coments Florida Power & Light Company (J.W.
Williams, Jr.) (4) 06 10/28/83 10/27/83 Coments from Lowenstein, Newman, Reis &
Axelrad (Reis) (5)
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07 10/28/83 10/27/83 Coments Hunton & Williams (Ellis) (6) 08 10/28/83 10/27/83 Coments Southern California Edison Company (Medford) (7) 09 10/28/83 10/27/83 Coments C-E Power Systems (Scherer) (B) 10 10/28/83 10/26/83 Coments General Electric (Sherwood) (9) 11 10/28/83 10/28/33 Coments Union cf Concerned Scientists (Jordan / Weiss)(10) 12 10/28/83 10/28/83 Coments Stone & Webster (Bradbury) (11) 13 10/28/83 10/28/83 Comments Edisen Electric Institute (Kearney) 1 (12) 14 10/31/S3 10/27/83 Coments Yankee Atomic Electric Company (Edwards) (13) 15 10/31/83 10/28/83 Coments Department of E(ergy (Griffith) (14) 16 10/31/83 10/26/83 Coments Housten Lighting & Pcwer (Wiserburg)
(15) 17 10/31/83 10/28/83 Corrents Carclina Power A Light (S mrerman) 1 (16) j 18 10/31/83 10/27/83 Coments Indiana Sassafres Auduben Society (Frey) (17) 19 10/31/83 10/27/83 Coments Ebasco Services (Saldarini) (181 20 10/31/83 10/28/83 Coreents North Carolina Public Irterest Research Group (Eddlerar.) (19) 21 10/31/83 10/27/83 Comments Hugh A. Tcwsley (20) 22 10/31/83 10/27/83 Coments Lynne S. Goodman (21) 23 10/31/83 10/28/83 Coments Consumers Pcwer Company (CeWitt) (22'-
24 10/11/83 10/28/83 Coments Vermont Yarkee Nuclear Power Corporation (Gaines) (23) 25 10/31/83 10/28/83 Careents Atomic Industrial Forum (Walske) (24) 25 10/31/83 10/28/83 Cerrents Nuclear Utility Backfitting and Refor-Group (Reyrolds) (25) l l
27 10/31/83 10/28/83 Comments Commonwealth Edison (Farrar) (26)
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O ZIT tit'! I W INTop,y Doch ei :'o.
PR-50 (48 FR 44217)
In the F. ::er of I
REVISION OF BACKFITTING PROCESS FOR POWER 'REACTOP.S i?=
- YOLU:'.I 2
- ~ ~.7 2 n ;
Dockt; Otit of Titie er 1
Date Docume.n; Descristien of Dogg,37,;
01 11/01/83 10/28/83 Comments Standardized Nuclear Unit Power Plant System (Nicholas A. Petrick)
(27) 02 17/DT/83 10/28/83 Connents South Carolin6 Electric and Gas Company (O. W. Dixon, Jr.)
(28) 03 11/02/83 10/28/83,,
Comments Westinghouse Electric Corporation (E. P. Rahe) (2 04 11/03/83 10/31/83 Comments Rochester Gas and Electric Corporation (John E. Maier)
(30) 05 11/03/83 10/27/83 Comments The Cleveland Electric Illuminating Company (Murray Edelman)
(31 )
(32) 06 11/03/83 10/30/83 Comments Marvin I. Lewis 07 11/03/83 10/28/83 Comments Duke Power Company (Hal B. Tucker)
(33) 08.
11/04/83 10/j8/83 Comments Alabama Power Company (F. L. Clayton, Jr.)
(34)l 09 11/4/83 10D1/83 Comments Louisiana Power and Light Company (K. W. Copk) (:
10' 11/04/83 10/28/83 Comments Portland General Electric Company (Bart Withers)
(36)
I' 11/07/83 11/02/83 Comments Public Service Company of Indiana (S. W. Shields 55i (37)
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12 11/10/83 11/04/83 Comments Patrick Merlee (38) iSEEE 11/10/83 10/28/83 Comments Northeast Utilities (W. G. Counsil)
(39) 14 11/15/83 11/03/83 Comments Wisconsin Environmental Decade (Peter Anderson &
Leslie Amchein)
(40) 15 12/05/83 11/28/83 Comments Public Service Electric and Gas Company (R. L. Mit:1)
(41 )
16 12/07/83 12/06/83 Comments Harmon & Weiss (Jordan) (42) (see Comment No. '..
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i UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
)
UNION OF CONCERNED SCIENTISTS, et al.,
)
)
Petitioners,
)
)
v.
)
No. 85-1757
)
UNITED STATES NUCLEAR REGULATORY
)
COMMISSION,
)
)
Respondents.
)
)
SUPPLEMENTAL CERTIFIED INDEX OF THE RECORD The U.S. Nuclear Regulatory Commission ("NRC" or
" Commission") hereby certifies that the material listed and described below is part of the administrative record underlying the Comission action which is the subject of the instant Petition for Review.
l Re ectfully sgbmitted, h
w
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/"SecretaryoflJ.
SAMUEL CHILK the Conmission Dated at Washington, D.C.
/(
this (( " day of January, 1986.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMISSION Union of Concerned Scientists.et al. v. USNRC U.S.C.A. 0.C. Circuit NoT 8571757 Date of Document Title or Description of Document 10/79 Report of the President's Commission on the Accident at Three Mile Island, j
11/3/82 SECY-82-447, Draft Report of the Regulatory Reform Task Force, l
" Discussion" and Part I, Chapter 3, " Proposed Rulemaking on Backfitting."
3/22/83 Report of the Ad Hoc Conmittee for Review of Nuclear Reactor Licensing Reform Proposals on Administrative Reform. Proposals of the Regulatory Reform Task Force.
7/7/83 Letter from Atomic Industrial Forum to Commission Containing the Forum's Then Most Recent Proposal for a Backfitting Rule.
8/5/83 SECY-83-321, the "NRC Manual".
9/28/83 Commission Policy Statement on Revision of Backfitting Process for Power Reactors, 48 Fed. Reg. 44173.
12/9/83 SECY-83-505, NRC Feasibility Study of Applying Backfit Controls to Construction Permit Holders and Operating License Applicants 4
1/6/84 Commission-Approved Charter of the Committee to, Review Generic Requirements, Revision 1.
5/4/84 Memorandum from the Commission's General Counsel to the Commission on the Extent to Which the Commission May Consider Costs in Deciding whether to Backfit.
5/84 NUREG-ER-0058, Rev.1, Regulatory Analysis Guidelines of the United States Nuclear Regulatory Commissior..
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CERTIFICATE OF SERVICE I certify that on January 17, 1986 copies of the foregoing " Supplemental Certified Index of the Record" were mailed to the followine:
Diane Curran, Esq.
Ellyn R. Weiss, Esq.
Harmon & Weiss 2001 S Street, N.W.,
Suite 430 Washington, D.C.
20009 Jacques B. Gelin, Esq.
Robert L. Klarquist, Esq.
Appellate Section Land and Natural Resources Division U.S. Department of Justice Washington, D.C.
20530 i
Nicholas S.
Reynolds, Esq.
i Sanford L. Hartman, Esq.
Bishop, Liberman, Cook, Purcell & Reynolds 1200 Seventeenth Street, N.W.
Washington, D.C.
20036 STEVEN r. CROCKETT Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 (202) 634-1465
QUESTION 1 (Continued) (c) Chairman Zech testified that the NRC Action Plan developed as a result of the TMI-2 accident is. documentation of problems with the backfit process prior to the present backfit rule (p. 65 of hearing transcript).
(1) Could you please identify.specifically where in the TMI action plan it demonstrated that backfitting was a problem?
(2) To the extent that the TMI Action Plan demonstrated that backfitting was a problem, was this information referenced in any of the Federal Register.
publications relating to the backfit rule? If not, why not?
i (3) Was the TMI Action Plan referenced in any of the decision documents for the backfit rule? If so, please identify specifically which ones.
If not, please explain why not.
ANSWER Chairman Zech cited the NRC TMI Action Plan, NUREG-0660, Vols. -1 & 2 (May 1980) as documentation not of useless or dangerous backfits but rather of the immense scope and potential lack of proper management of the backfitting that took place after TMI. The Action Plan was, after all, in large part the
QUESTION 1 (Continued) staff's recommendations for, not its post-implementation review of, most of that backfitting, and therefore could not serve as documentation of misjudgment in backfitting.
The Chairman intended only to give some indications not only of how much backfitting had been done after TMI but also of how easily a project of such magnitude could be implemented with insufficient documentation and justification. Thus, there was a need for policy direction and a more formal process to be followed in conducting the analysis needed for backfitting decisions.
QUESTION 1 (Continued) (d) Do you agree that when the Commission proposes a major fix that it has an obligation to spell out what is broken and how it got that way?
(e) Before the Comission goes any further in addressing the backfit problem, shouldn't you document the problem and its causes in the Federal Register.
ANSWER The agency has an obligation to explain why it is promulgating a given rule or taking a plant-specific action, and in the case of the 1985 revised backfit rule, we fulfilled that obligation.
The questions incorrectly assume that the "backfitting problem" was that we had been imposing useless or dangerous backfits and that therefore we have been remiss in not publishing in the Federal Register a list of misjudgments.
Although the GA0 has developed a list of what it called backfits of " questionable safety benefits", we emphasize again that we revised the backfit rule in 1985 because we had found that the backfits which had been carried out had been insufficiently documented and justified and we wanted to assure that future backfits actually contributed to safety.
We repeatedly stated our reasons for revising the rule in various Federal Register Notices, and there was wide-spread agreement that we needed to reform the backfitting process.
See the cuotaticrs and citations in our answer to Subpart "a" of Question 1.
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OUESTION 2 How many backfits did'the Commi; sic, impose eiet year from 1980 to the present?
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(a) Please provida a breakdoqb for eb:5 year of the number an'd type of generic teckfits, snd tos Aimber and type of plant-speciffx bach'its, f
ANSWER J
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In March of 1986, the NRC issued its first report to Congress wn Changes fp i
p, Systers, Compcnents, Structures, Fj:ocedures, Organization or Designgt _
f Operating Power Plants Imposed by NRC in response to House Repw/t c9-L;T.,
i 8 This report listed four generic backfits and oae plant-specific baskfi; imposed during calendar year 198E. Almcst 300 acthns were required ( ?
operatingreactosbygenericcomhonicationsdiscuss3dinthisreport.'The actions addressed the auxiliary feedweter and reactor protective sys2et. : and safetysystemmoto'cperatedvalves.~In/pebruaryof1987,theNRCissuebthe report for calendar year 1986 which list 2d five generic backfits I.nd two plant-specific backfits imposed by NRC., A tot.;' of over 400 actions p<e t' recuired of operating reactres t / generic cot;runications and rules discusset in this report. These actions ir.vcived plant physical pr.c.ection $ searches of individuals, the emergency core cooling system, and sa fety :sy9 ai instrumentation. The report for calendar year 1987 wiCl bd p<cilable in
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early 1988.
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OUES! ION 2'IC.;ntinued) 2-The staff did not keep centralized records of generic or plant-specific U
batkfits imposed prior to ~iinplementation of the backfit rule.10 CFR 50.109 in
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September 1985 and there is no breakdown for each year of the number and type of generic and pi:f;it-specific backfits imposed during the period from 1980 through 1984.
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OUESTION 2 (Continued) \\
(b) Please identify the source for each set of numbers.
, ANSWER 1.
Letter from Nwizio J. Palladino (NRC) to the Honorable Tom Bev111 (United States House of Representatives) dated March 4,1986.
2.
Letter fern Lando H. Itich, Jr. to the Honorable Tom Bevill (United States Fouse of Representat.ives) dated February 13, 1987.
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OUESTION 2 (Continued)
-S-(c)
Is any of the information that you provided to Chairman Bevill in your letter of February 13, 1987 inaccurate? If so, please identify and explain the reason for each inaccuracy?
ANSWER We are not aware of any inaccuracies in our letter to Chairman Bevill dated February 13, 1987. Discussions at the October 14 hearing suggested confusion over the distinction between the term plant-specific backfit (meaning a backfit action initiated and imposed in response to circumstances or concerns associated with one specific operating plant) and the implementation at a single plant of a generic backfit action / decision by NRC.
Failure to recognize these distinctions may have led to a question regarding the accuracy of the referenced letter to Chairman Bevill. As we stated in the answer to question 2a the February 13 report describes generic _ requirements which resulted in over 400 actions being taken at individual operating reactors. These requirements are not tracked as plant specific backfits ana, therefore, do not appear in this report as plant specific modifications.in the
" Plant Specific Backfit Tracking System."
Apparently, there was also some confusion at the October 14 hearing regarding the information contained in the February 13, 1987 letter and the f'gures referred to by Chairman Zech for the last 19 months of CPGR operation.
The data to which Chairman Zech was referring compares various types of issues, I
l l
l
QUESTION 2 (Continued) including backfits, reviewed by the CRGR during their first and most recent 19 months of existence. This data is different from that contained in the February 13 report in that it pertains to a longer time period and refers to requirements not yet imposed but those reviewed by CRGR.
l In summary, we are not aware of any inaccuracies in the February 13, 1987 letter.
I l
I i
1 i
QUESTION 3 Are there any rules, other generic backfits, or any plant-specific backfits that the NRC issued prior to October 21, 1985 that would not have satisfied the final backfit rule published in 19857 If so, please identify each, and explain why it would not have satisfied the backfit rule.
ANSWER We have not determined whether or not there are any rules, other generic backfits or any plant-specific backfits issued prior to October 21, 1985 that would nct have satisfied the final backfit rule published in thr.1985 rule since the regulatory analysis required by 10 CFR 50.109(c) was not in place during this time. Without having performed this analysis and having made the backfit determination of 10 CFR 50.109 (a)(3), we cannot conclude with-certainty whether any of these actions would not have satisfied the final.
backfit rule. However, the backfit rule for the most part simply codified backfit criteria contained in the CRGR Charter and made them applicable to both ger.eric and plant-specific backfit evaluations.
In general it would be expected that any backfit imposed (and net successfully appealed) from November 1981 to present would satisfy the backfit rule. As stated in the response to Question 128, however, the volume of requirements imposed immediately after the TMI-2 accident did not receive a disciplined backfit analysis and had created a potential safety problem by redirecting licensee resources from necessary ongoing routine safety related tasks,
l QUESTION 4 Since the U.S. Court of Appeals (D.C. Cir.) vacated the entire backfit rule (U.C.S. v. NRC), why did the NRC only re-propose a portion of the revised rule?
ANSWER The September 10, 1987 Federal Register Notice announcing a proposed revision to the backfitting process was technically correct in proposing amendments to the 1985 version of the rule because as of September 10 the mandate of the Court of Appeals, which has the actual legal effect of vacating the rule, nad not yet been issued by the Court.
Nonetheless, more importantly, the Notice clearly put the public on notice that the Comission intended to reissue a backfit rule.
Indeed, UCS took the-opportunity to resubmit the comments it had submitted curing the rulemaking 1
leading up to the 1985 revision. To the extent that the Notice spoke of amending the rule rather than reissuing it, the Notice may have helped commenters focus on the differences between the proposed rule and the vacated l
rule, the differences being the most important aspects of the proposed rule, given the Court's decision.
In any event, i' the Comission adopts firal clarifications to the rule, the entire rule will be republished f or codification in the Code of Federal Regulations.
l
QUESTION 5 Clearly the term " adequate protection" is critical in the backfit rule.
(a)
Is the term " adequate protection" defined anywhere in the NRC regulations? If so, please provide the citation.
(b)
Is " adequate protection" defined anywhere in the NRC's procedures or guidelines? If so, please provide the citation.
(c)
If " adequate protection" is not defined in NRC's regulations or guidelines, why is it not defined?
(d)
If " adequate protection" is defined in NRC's regulations 1
or guidelines, why is this definition not made specifically applicable to the backfit rule?
ANSWER The phrase " adequate protection is presurrotively defined by the whole body of -
the NRC's regulations, guidance, and procedures.
As the Commissier has saic on many occasions, compliarce with the Commission's regulations and guidarce "should prcvide a level of safety sufficient for adecuate protect 1on of the public health ard' safety anc common cefense and security uncer the Atomic Energy Act."
49 Fed. Reg. at 47036, col. 2 (Proposed Rule); see a:so 50 Fed.
Reg. at 38101, col. 3 (Final Rule); 51 Fed. Reg. 30023, col.1 ( August 21,
OVESTION 5 (Continued) 1986) (Policy Statement on Safety Goals). An essential point of having regulations is to flesh out the " adequate protection" standard entrusted to us by Congress. See UCS v. NRC, Opinion at 20-21. Thus, the 1970 backfit rule, the 1985 revision, and the present proposed revision all set out, as the first exception under the rule, the " compliance exception".
Plants in compliance with the regulations are presumed to provide adequate protection; thus plants out of compliance may be backfitted without findings of a " substantial increase" in protection or a " justification" of costs.
However, " adequate protection" is only presumptively assured by compliance.
As the Commission said in promulgating the 1985 revision, the presumption may be overcome by, for instance, new infomation which indicates that improvements are needed to ensure adequate protection.
50 Fed. Reg. at 38101, col. 3.
Thus both the 1985 revision and the proposee revis on centain d
exerrptions for backfits necessary to assure adequate protection (or, equivalently, "nc undue risk").
But there exists no generic definition of " adequate prctection" as that phrase is used in the second exception in the 1985 and proposed revisiccs, where it is something more than compliance. The NRC is actively seeking ways to implement its general safety goals, see 51 Fed. Reg. 30028, (August 21,1926)
(Policy Statement on Safety Goals), and this ef#crt includes an effort to establish a more general definition.of "adecuate protection".
However,-given the state of the art in safety assessment, it is not reasonable to g1ve a quantitative definition of "acecuate protection".
Wher E, as in the cases certemplated by the secord exception, neither quantitative criteria r.cr
QUESTION 5 (Continued) deterministic regulations define " adequate protection", the agency must fall back on the exercise of engineering judgment in specific cases, which we, acting as the quasi-judicial body we are, and in accord with the time-tested manner of the comon law, must fashion into a well-reasoned, self-consistent, and factually well-supported whole which can withstand challenge under the applicable requirements of the Administrative Procedure Act.
See Nader v.
Ray, 363 F.Supp. 946, 954-55 (D.D.C.1973) (detennining wnat constitutes adequate protection calls for exercise of discretion in a judgmental process very different from acting in accord with a clear, non-discretionary legal duty). As UCS said in its comments on the proposed 1985 revision of the rule,
"[u]ltimately, the determination of what standards must be met in order to provide a reasonable assurance that the public health and safety will be protected comes down to the reasoned professional judgment of the responsible official."
" Comments of the Union of Concerned Scientists on Proposed Revisien of the Backfitting Process for Power Reactors, ANPR 48 Fed. Reg. 44217", at 9.
See also 49 Fed. Reg. at 47036 (Proposed Fule) (judgment essent4al in the application of the " substantial increase in overall protection" standard).
Nonetheless, not every decision about whether costs may be considered in the backfitting process depends on a case-specific determination of what adeouate protection requires.
The decision whether costs may De considered depends in the first instance or whether the proposed backfit is required for ccep'iance with the NDC's rules and crders or the licensee's written ccen,itments.
Crly if the proposed backfit recuires more than compliance need case-by-case judgment about adecuate protection be exercised.
QUESTION 5 (Continued) (e) In Union of Concerned Scientists v. NRC, (D.C. Cir.),
the Court found that:
We think that the vulnerability of the rule to this and other impermissible interpretations compels our vacating the rule.
In our view,. the backfitting rule is an exemplar of ambiguity and vagueness; indeed, we suspect that the Comission designed the rule to achieve this very result. The rule does not explicate the scope or meaning of the three listed
" exceptions."
l In short, the rule does not speak in tems that constrain the Comission from operatino outside the bounds of the statutory scheme.
(Pages 22-25) emphasis added.
l In the face of the Court's concern that the backfit rule does not explain the scope of its exceptions, I
one of which is that a backfit is necessary to achieve adequate protection, why did the-NPC not define adequate protection?
(f) Was it not the Court's intention that the NRC define this term, among others?
OVESTION 5 (Continued) l l
ANSWER As explained in our answer to Subparts "a" through "d" of this Question, we have given no generic definition of " adequate" protection because no such generic definition is possible at the present time. However, also as explained above, the Comission has given a presumptive definition of " adequate protection" in the whole body of Comission regulations and guidance, and unless the Comission's safety goals efforts yield a generic definition of " adequate protection," the Comission of necessity proceeds in a reasoned, case-by-case fashion for situations not covered by the regulations or guidance.
Given this necessity, the Court could not have intended that the NRC define
" adequate protection" in any revision of the backfit rule, and there is nothing to the contrary 'n the Court's opinion. We must emphasize the core of the Court's decision:
reviewing the exceptions in the rule and various statements in the Federal Register notice accompanying the rule, the Court said, "We conceivably could read the terms of this rule to comply with the statutory scheme we have described above [that is, a scheme in which economic costs can play no part in establishing what adequate protection requires]."
Opinion at 23. The Court said this despite the lack cf any summary, general, "cbjective" definition of " adequate protection" in the rule.
However, the court then goes on to say, " Statements that the Commission has made in promulgating the rule and in defending it before this court, however, disincline us from interpreting the rule in this fashion." Opinion at 24.
Again, it is not the lack of a definition of adequate protection that disinclines the Court from saving the rule, but rather certain statements the Cemission had made which seemed to suggest that the Comission might consider economic cost when deciding what adequate protection required.
QUEST 10N 5 (Continued) The Court does criticize us for not explicating the " scope or meaning'of the three listed exceptions", but, again, given the necessities we face in trying to implement the " adequate protection" standard, the Court cannot have been calling for a definition of adequate protection, but rather for something like our comments above on the relation between the first two exceptions in the proposed revised rule. See our answer to Subparts "a" through "d" of this Question. Certainly in all the places where the Court discussed the standard, the Court never said that the rule must contain a definition of the' standard.
Moreover, such a definition was not an issue in the case. Only after the Court affirmed that costs had a proper but limited place in the NRC's decisionmaking, did the Union of Concerned Scientists call for a " definition" of adequate protection. Last, the Court surely knows that of all the important safety actions the Commission has taken, most are far more important than whether costs are considered in backfitting, and ultimately depended, at l
least in part, on the Commission's judgment as to what adequate protection l
required.
J
OUESTION 5 (Continued) (g) The Court held that the fiHC may not consider costs in requiring utilities to achieve adequate protection.
Absent a definition of adequate protection, hcw does the rule constrain the Commission from operating outside the bounds of the statutory scheme?
i ANSWER The Commission is constrained in the same way that any administrative body is constrained when it must make its decisions in a reasoned manner, on the basis of expert judgment and precedent. In this regard, see our answer to Subparts "a" through "d" of Question 5.
t
OUEST10N 5 (Continued) (h) What is the meaning of " adequate protection"?
(1) Absent a definition of " adequate protection,"
how is the NRC staff supposed to know when it l
must apply the full backfit analysis to a proposed backfit?
(2) What criteria should the staff apply in determining whether a proposed backfit is necessary for adequate protection?
(3) Why are these criteria not expressly stated in the backfit rule?
ANSWER As we have saic already in response to earlier parts of Question 5, safety assessment does not permit dictionary definitions of " adequate protection".
We could, of course, say that " adequate protection" is not :ero risk, is the same as no undue risk, has long-term and sbcrt term aspects, and is the level of safety the Atomic Energy Act requires for initial ard continuec operatior of a nuclear power plant.
Such definitions would not,. formula-like, without the intervention of informed human judgrrent, auterratically say "yes" or "no" to the cuestion, "may costs be. considered here".
i
QUESTION 5 (Continued) The staff shall have to continue doing what it has been doing since the beginning of the licensing and regulation of the commercial nuclear industry:
The staff shall have to continue trying to make public, reasoned and consistent judgments.
A, if not the, principal aim of the backfit rule was to centralize responsibility and document the bases for such decisions, and thus increase the chances that such decisions will form a reasoned and coherent body of decisions on backfitting.
QUESTION 5 (Continued) (1) Given its importance in the backfit rule, wouldn't it be useful to define " adequate protection" and seek public coment on the definition?
ANSWER Of course, the public has a very active role in making the Commission's rules, which, taken as a whole, presumptively define adequate protection. Moreover, the public may petition the Commission, and comment in other established ways, concerning any Comission decisions which involve a notion of. adequate protection which is not fully spelled out by safety regulations or guidance.
The Comission has already sought extensive public coment on its safety goals and their implementation, an effort which may some day lead to a generally applicable definition of adequate protection and other key phrases in the Atomic Energy Act and the Commission's regulations.
QUESTION 7 In order to require a backfit, the NRC staff must perform a detailed analysis'and demonstrate that 1) there will be a-substantial increase in safety and 2) the benefits justify the costs.
(a) Therefore, even if there will be a moderate increase.in safety and the benefits outweigh the costs, the backfit will not be allowed because there is not the required
" substantial increase" in safety.
How do you justify this?
ANSWER It is by no means clear that "mederate" increases in safety would be blocked by the " substantial increase" standard.
As the Commission said on two occasions during the backfit rulemaking, Under such a standard, the Commission woulo not ordinarily expect that safety improvements would be requirec as backfits which result in an insignificant or small benefit to public health and safety...
On the other hard,-the standard is not intended to be' interpreted in a manner that would result in disapprovals of worthwhile safety-..,
improvements.
QUESTION 7 (Continued) 49 Fed. Reg. at 38105, cols. 2-3 (Final Rule), quoting 49 Fed. Reg. at 47035 (Proposed Rule) (emphasis added). As the quoted statements indicate, the principal aims of the substantial increase standard are to assure both that the improvements are indeed improvements and that they are not trivial. These aims recognize that trivial improvements would divert licensee attention from ongoing operations and maintenance of plant safety to address a new requirement. There has long been agreement among the Commissioners on this point. As former Commissioner Asselstine said in another context, " changes which would only result in trivial safety improvements need not be pursued."
50 Fed. Reg. at 32150, col.1 (Severe Accident Policy Statement). After all, the " substantial increase" standard is the oldest part of the backfit rule, having been the principal standard in the 1970 version of the rule. Moreover, the appropriateness of this standard was not in issue in the litigation over the rule.
l
_ _ = _ _ _ _ - _ _ _ -
OUESTION 7 (Continued) J (b) Even if there will be a substantial in:rease in safety, if the costs to the utility slightly outweigh the benefits to public safety, the backfit will be rejected.
How do you justify this?
ANSWER The question incorrectly assumes a precision of quantification of both costs and benefits which the rule not only does not call for but also is not possible. Moreover, the rule says that the costs must be justified, but does not say how.
It certainly does not say that the benefits must all be quantified and must outweigh by some margin the costs.
To the contrary, even before a proposed revision to the 1970 rule was published for comment, the-Commission explicitly rejected a cost-benefit stancard that would have recuired that no backfit be imposed unless the benefits of the backfit clearly exceeded its costs. Commission meeting, September 6, 1984, Tr. at 68-70.
See also, in your possession, the May 21, 1986 OGC memorandum, at 2-3, which makes these points and discusses more generally the role of qualitative judgment in balancing costs and benefits.
k QUESTION 8 By letter of February 13, 1987, Chairman Zech told the Congress that the NRC had required one-generic backfit and ne plant specific backfits in the first calendar year of operation. Are you satisfied with a rule that permits virtually no backfits in its first calendar year of operation?
l ANSWER Your characterization of the February 13, 1987 letter to Congress in not correct. As discussed in the. response to question 2a, five generic backfits and two plant specific backfits were imposed during calendar year 1986.
Those backfits, as reflected in the February 13, 1987 letter are:
Generic:
1.
Amendment to 10 CFR Part 50 concerning physical protection of nuclear power plants; I
2.
Amendment to 10 CFR Part 73 cn searches of individuals seeking access to protected areas; 3.
Request for Licensee reports on actions to address rainimum flow logic problem that could. disable Residual Heat Removci (RHR) pumps; 4.
Request for testing of static "0" ring differential pressure switches; and
QUESTION 8' (Continued) 5.
Request for report on corrective actions and instructions to operators concerning potential failure of multiple Emergency Core Cooling System (ECCS) pump due to single failure of air-operated valve in minimum low recirculation line.
Plant Specific 1.
Order modifying FERMI-2 licerse in connection with an inadvertent-l criticality; and 2.
Order confirming commitments on pipe crack issues at Peach
'j Bottom-3.
The section in the letter to Congress entitled " Plant Specific Backfit Track System" did not reflect the two plant specific orders referenced above because those orders were judged. to be necessary for adequate protection of the public health ard safety and did not recuire a backfit analysis.
The plart specific backfit tracking system tracks those plant specific backfits l
that reauire a backfit analysis and/or staff regulatory positions which are challenged by the licensee.
The Commission never intended the backfit rule to prohibit backfitting.
Rather, it intended the rule to establish assurance that backfits actually have a positive, rather than a negative, impact on sefety and that backfittirg that goes beyond adequate safety provides substantial safety benefit with respect to the ccst so that the effect of resources expended for safety it.9provement is maximized.
QUESTION 9 (a) Was the NRC staff complying with the original backfit rule published in 1970 during the time it was in effect? Please identify all instances in which the staff did not comply with the rule.
ANSWER Since there were no specific backfitting records maintained during the referenced time period, we have.not determined whether or not the staff' complied with the original backfit rule in each instance where modification was imposed on a plant or the industry.
The Commission is confident that when the staff is given appropriate guidance from the Commission, the staff implements the guidance.
Nor.etheless, prior to the backfit rule of 1985, staff was not required to address each issue in a disciplined way and there was evidence that the industry was being inundated with required changes in sufficient quantity to create a pctential safety i
problem.
(See response to Q12).
CUESTION 9 (Continued) (b) When the Commission was considering the (1985) backfit rule, the accusation was made at Commission meetings and elsewhere that the staff was not complying with the prior rule.
(1)
If the NRC staff had been ignoring the prior i
rule, would the staff be rmre likely to follow I
another rule rather than a policy statement explaining the prior rule?
I (2)
If so, why would you ever issue management directives?
i ANSWER Apparently, the question is intended to suggest that, if indeed the staff did not comply with the 1970 rule, the reason was lack of guidance on how to comply with it, a lack best corrected not by another rule but by management documents interpreting the rule for the staff's guidarce.
The question is another way of asking, "Why did the Commission not simply issue guidance on the 1970 rule?" We answer that questico in our responses to Question 11 and its various subparts.
Suffice it to say here that the Comm4ssion did in fact issue management directives as part of its reforms of the backfitting precess, see 49 Feo. Reg. 16900 (April 20, 1984) (Manual Chapter 0514 and Staff Drocedures), but the Commission also went on to issue a revised rule.
1
QUESTION 10_
By memorandum of 5/17/85 (copy enclosed), the Director of the Office of Nuclear Reactor Regulation wrote to the Deputy Executive Director that:
"We continue to believe that management of staff activities should be done through the NRC manual chapter and office procedures and not through rules.
He concluded:
"We reconsnend that you inform the Regulatory Reform Task Force [RRTF] that the proposed final backfitting rule is unnecessary and counterproductive; that the staff is taking strong and effective steps to control the normal review and backfitting procedures; and that the new manual chapter and office procedures j
should be given the opportunity to work."
1 (a) Were the new manual chapter and office procedures given the opportunity to work prior to issuance of the final rule?
(b)
If so, how were they given this opportunity and what were tne results?
If not, why not?
(c) Was the recommendation cf the Director of fiRR regarding communication with RRTF followed?
(d)
If so, how?
If not, was this decision documentec?
Please provide us with ary such docurrentation.
QUESTION 10 (Continued) ANSWER The new Manual Chapter and office procedures were developed to complement the anticipated, as well as the existing, rule. They were not developed to be implemented independently of a backfit rule. They were issued internally and explained to the staff prior to issuance of the final rule.
The recommendations and opinions of the Director of the Office of Nuclear Reactor -
Regulation were made known to the Regulatory Reform Task Force and to the I
Connission. His opinions were, in fact, noted to the Commission during +. heir meeting on June 26, 1985 (see pages 59 and 60 of the transcript, attached).
The Cunmission subsequently decided to issue the rule.
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think they're so overwhelming that we can't fix it up As a 2
matter of fact, if we went with the rule the way at is, i
3 thenk we couid come out and iive happiIy and do our Jeb If 4
we did the way the proposed change is, i think we'd have to 5
make a little bit of modification to make it work, but I think 6
it could be made to work 7
I am concerned just a little bit about when we say l
l 8
avsluation before you ask for informatlen, because as a design 9
enginser, I remember sec.etimes wanting information when I just 10 wasn't quite satisfied that something was right And t h*a t ' s 11 why when I got te that part, I tended to say, weli, give me the basis for it or give me the reason der 12 the basis for it 1?
et I'd say, if that's the evaluation, than that's fine l
l 14 and i*m wiiling te buy evaivatien, if that*s tho wiiI es ino 15 Commission I'd be inclined to mayoo change it to "tho bas,s 16 fer," byt I'm even wiliing te put a feetneto aftor 17
" evaluation," and say " bases (or 19 But I think we've got a rule t r. u t has a nur>b er et 19 very important c e n.pon en t s, and I'm interostod in 20 Commissioners' c ene.an t s er questions, se that these matters 21 can be addressed 22 i den't know af the Cev,'sJ en wants te noAr f"M 23 anybody eise at thas point 24 mp DiPCKs May I just cla is y the receed. theug '
l 25 CHulRMAN poLLADINO Yes Attachment to Q100 L__________.
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MR. DIRCKS:
I got a note saying that Harold did not 2
support he did suggest that the rule was not needed, and I 3
wanted to get that clear.
A CHnlRMAN PALLADINO-Well, unfortunately we have a 5
rule.
6 MR.
DIRCK3:
You would not disagree, I think, en the 7
decisionmaking framework aspect that I talked about 9
COMMISSIONER ZECH:
I would suggest, since we have 9
Vic Stello at the table, maybe Vic would like to say sometheng l
10 to us.
l It CHAIRMAN PALLADINO We'd welcome his comments.
12 Col 1M l 3S I ONER BERNTHAL On the other hand 13 CLaughter 3 14 f1R STELLO I think I'd rather not, but --
15 CLaughter.3 16 MR STELLO:
The question was asked in terms c4 17 what's been said here represents Sta44 vsow or ECO views i
18 at least ought to describe what we've been deeng briedly a ri d 19 how we have assured curselves that we nad agrearent et tre 20 s t a,' f te ge (erward, and that was in nrticioutsen tnat p e r r. a c s 21 tne C ere s s a i in would get a rule eut quickty 20 Bac*
+n February wnen tney s e r. t us seme inctructi;rs
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and told the EDO get clicking, we devolepod a m a r.u a l chapter 24 nepetutly just to start to move to develop the procedures tnat 25 would be necessary to e##ectively manage the backfit process Attachment to Q10D j
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k 12 fn preparing the ctmen t s back to Tourtelletto, 1?
wnsch Jim get, I beiseve, in May, the respenso of all of the 14 e## ices was, sought in agroeeng en how te re7 pend back to 15 Tourteiiette.
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QUESTION,Il
. In response to questions from the Congress, published on r
. April 17, 1987 (copy enclosed), the NRC stated:
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,S QUESTION 11 (Continued) 2-T (a) In light of this assertion, why did the NRC net simply clarify the regulation through
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Is the NRC's rationale for this decision
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ANSWER 3
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3 The Commission did not simply issue guidance'on the rule for the same reason that the 1970 rule took the form of a rule' rathe% than guidance -- indeed, for the same reascn that the Commission ever issues rules:
as former Chairman Palladino said when the 1985 revision was promulgated, "[t]he decision to incorporate controls into a rule will mein that the Commission l car, be held accountable in the future for how it implements those controls.
- Furcher, the decision to adopt a rule also means that modifications of the controls will inv0 ve public participation." 50 Fed., Peg. at 38104, col. 2 (Final Pule).
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Mgreover, to the extent that the lack of specificity W ~ the 1970 rule
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1 der.tributed to the backfitting problem, the ru'e reeded to be revised.
Otherwise,therewouldhavebeenneedlesslylengthy[debateonwhetherthe guidance issued for the 1970 rule was consistent with the rule. Only the rule is legally birdkg.
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OUESTION 11 (Continued) (c)
If the need was for clarity, (1) why did the NRC change the burden of proof from the industry to the staff?
(2) why did the NRC change the standard for imposing backfits?
(d)
Is the NRC's rationale for this decision documented anywhere? If so, please identify the source.
ANSWER The rule did not change the burden of proof.
The " burden of proof" would be allocated in adjudicatory proceedings in accordance with 10 CFR 2.732 or other applicable procedural regulations.
Indeed, no version of the backfit rule even assigns the burden, let alone charges it.
Throughout the law, the burden of proof is assigned by a constituted authority to determire who prevails when a standard of proof is not met.
But the 1985 revision of the cackfit rule does not specify a standard of proof in the usual sense; it i
says nothing like, "no backfit shall be imposed unless the staff proves l
teyond a reasonable doubt that...", or even, "urless the staff proves by a clear preponderance of the evidence." The rule required only that tackfits l
of wnatever stripe, whether for compliarce, or for a level of protection 1
which was more than compliance calleo for, be justified, either by a l
QUESTION 11 (Continued) " documented and systematic analysis" following the factors listed in the rule, or, in the case of backfits required for compliance or adequate protection, a documented evaluation showing why the backfit was required for the sake of compliance or adequate protection. Of course, these requirements impose certain " burdens" on the staff, but they are not " burdens of proof" and have in no sense been shifted from the licensee, for it was never the case that the licensee was obligated to analyze the impact of a proposed backfit but the staff not. The requirements the rule imposes on the staff are simply the burdens of rational decision-making. The Union of Concerned Scientists long ago proposed that the staff be required "to justify all backfits..." [T]his requirement... would contribute to rational decisionmaking..." "Coments of the Union of Concerned Scientists on Proposed Revision of the Backfitting Process for Power Reactors, ANPR 48 Fed.
Reg. 44217", at 20-21; see also id. at 28-29.
If the Commission were prevented from ever issuing a revised backfit rule, :he Commission would probably continue to act as if the rule were in place, for it could not rationally overlook the factors the rule requires to be considered.
- However, without a rule, the Commission could not so easily be held accountable for its backfitting decisions.
We changed the standards in 1985 for imposing backfits simply because, generally speaking, we thought ratior.al decisionmaking recu red those d
l changes. More particularly, we changed the exception provision of tne 1970 rule because we wanted to make clear that we had the power to recuire backfits for the sake of adequate protection even when a plant was ir. full compliance with the NRC's rules and orders. Morever, we listed facters to be ccrsidered before a backfit was imposea because we could not imagine that we
OVESTION 11 (Continued) should not consider those factors; shall we impose a backfit before we know whether it will reduce risk, or expose workers to more radiation than is saved the public, or so burden the NRC as to detract from its mission, or substantially increase the probability that operators will comit material errors? Last, we made cost a consideration for backfits which go beyond adequate protection because "[w]ithout cost as a competing consideration in these circumstances, the regulatory process takes on the characteristics of a quest for a risk-free plant -- an unreasonable objective contrary to the overall intent of the Atomic Energy Act and the public interest." 49 Fed.
Reg. at 47036, col. 2 (Proposed Rule).
No Commissioner maintained that cost did not have a proper role in backfitting decisions. See, for instance, former Commissioner Asselstine's proposed cost-benefit standard, id. at 47041, 1
col.1, and UCS v. NRC affirms the Comission's judgment that cost is an appropriate consideration when deciding whether to backfit beyond adequate protection. On these and other points, we commend to you our many and lengthy Federal Register notices on backfitting, which are listed in the Certifiec Index attached to these answers.
.e QUESTION O (Continued) (e) Is it the intention of the NRC for utilities to have the ability to sue the NRC in court to enforce (1) the procedural requirements of the backfit rule?
(2) the substantive provisions of the backfit rule? Please explain your answer.
ANSWER The failure of the agency to conform its actions to the procedural of l
substantive provisions of the backfitting rule could form the basis for a challenge to agency action on judicial review under section 189b of the Atomic Energy Act, as amended, 42 U.S.C. 2239(b), end the Hcbbs Act, j
i 28 U.S.C. 2342.
Thus, to the extent that agency action to grant, amend, j
suspend or revoke a license was based on the backfitting rule, a litigant I
I might challenge the agency's backfitting determination under section 10 of the Administrative Procedure Act, 5 U.S.C. 706.
For example, a utility licensee might seek judicial review of a final NRC order or regulaticr imposing a license modification, or an intervenor in a licensing preceeding might seek review of the declination to impose a safety improvement, which was based on a backfitting determination. These possibilities derive from the existing framework for adjudication anc rulemaking, and judicial review-t*ereof, under the Atomic Energy Act and would apply whenever e licensee or other third party challenges NRC actions that allegedly co not conferm to NRC regulations.
QUESTION 11 (Continued) l (f)
If added discipline was necessary, why was a rule more appropriate than a policy statement or other l
management directive?
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ANSWER If added discipline had been the only goal of the 1985 revision of the rule, management directives might have been sufficient. However, as we have said-in response to other Subparts of this Question, the revision had other goals
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also, such as public participation in the revision and any later revision there might be, and accountability to the public for adherence to the revised standards, R
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OVESTION 12 How does the NRC decide in any given situation whether it is going to issue a rule or a policy statement?
(a) What factors do you consi6er in making this determination?
ANSWER 1
There are no set guidelines for determining whether a rule or a policy statement is more appropriate for dealing with a particular issue. However, the factors considered would include the specific nature of the regulatory objective, the number of approaches available to achieve this objective, the sufficiency of existing policies, rules or other requirements, the existence or lack of industry initiatives pertinent to the subject, the need to be timely, and resource availability.
Policy statements may be particularly useful in dealing with emerging regulatory issues where the optimum approval may be initially uncertain or
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with broad issues where a variety of approaches are available, each having equal merit depending on the licensee's individual circumstances. Rules are appropriate where the agency is prepared to articulate a uniform and precise scheme of regulations. With a policy statement the Commission can meritor the progress toward certain goals after initial coordination with the industry.
This approach allows the development work to proceed using primarily industry resources without prematurely committing to a regulatory solution anc thereby unduly limit the agency's flexibility.
Such an approach woulc conserve NRC resources and would normally be more timely than rulemaking to initiate
QUESTION 12 (Continued) regulatory improvements. While the rulemaking process can be a lengthy one it is designed to assure a full development of the issues and a fair consideration of opposing views.
In general we believe the rulemaking process does serve those functions and its success may be enhanced in appropriate circumstances if preceded by use of policy statements.
Industry work based on a policy statement is of course subject to careful oversight by NRC so that at any time we may choose to institute a rule if we are not satisfied with industry programs.
It should remain clear that nothing in a policy statement limits the authority of the NRC to issue orders, call enforcement meetings, suspend licenses or take other enforcement actions when regulatory requirements are not met or a safety problem is found.
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QUESTION 12 (Continued) (b) On the basis of what factors did you decide to issue a backfit rule? How did you apply these factors in deciding to issue a rule?
ANSWER The factors considered in 1984 and in 1985 when determining the need for a new backfit rule were the nature of the regulatory objective and the status and adequacy of existing rules and procedures. The first backfit rule,10 CFR 50.109, was issued by our predecessor, the AEC, in March 1970. The backfitting, or modification, of a license or facility as new information became available was previously recognized as a necessary aspect of reactor regulation by the AEC. As reactor designs evolved, regulatory guidelines and criteria also evolved. Following the TMI-2 accident, a large number of design and operating requirements were imposed by the NRC on the entire irdustry.
These requirements demanded added licensee resources and tended to redirect licensee resources from necessary ongoing routine safety-related tasks.
j following a 1981 survey at 12 major utilities to determine the overall safety impact of imposing this large number of requirements over a relatively short r
period, it became clear that a potential safety problem had been created and that the centrol of the issuance of new NRC requirements was inadequate. The 1970 backfit rule was not meeting the regulatory objective of imposing a disciplined approach to the backfitting process. By November 1981 in recognition of this reed, the Comission had established the Committee to 1
Review Generic Requirements to review all proposals by the staff for new generic requirements and to provide recommendations to the EDO on their disposition.
OUESTION 12 (Continued) proposals by the staff for new generic requirements and to provide recommendations to the EDO on their disposition.
By late 1984, the NRC proposed a revised backfit rule for public coment that embodied and codified much of the disciplined evaluations the CRGR was already doing, and that provided the general principles by which the staff was to manage plant-specific backfits that were not being reviewed by CRGR. Adoption of the backfit rule in September 1985 reaffirmed in a visible, disciplined, and mandatory way the Comission's commitment to improved control of backfitting. The use of a rule rather than a policy statement was judged to be the appropriate regulatory vehicle since a rule was already in place and the experience gained from the interim backfit management procedures which had been used for several years would allow issuance of direct and precise requirements regarding actions to be taken by the staff.
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OUESTION 12 (Continued) (c) On the basis of what factors did you decide to issue a Fitness for Duty Policy Statement? How did you apply these factors in deciding to issue a policy statement?
ANSWER The Fitness for Duty Policy Statement, issued in August 1986, deals principally with licensee programs dealing with use of alcohol and drugs in I
licensee facilities. NRC staff initially proposed a rule on this issue. The l
industry, through its NUMARC and INPO, proposed to the Conmission that the industry be allowed to address the issue within guidelines set by the Concission with the goal of achieving a level of excellence beyond that which the Commission might achieve by rule. The Commission chose to allow NUMARC to accept this challenge, based on several factors.
It was believed that NUMARC had the ability to address the issue better with the flexibility of a policy statement, given the limited staff expertise available in NRC and given the variations in the nature and degree of the problem from site to site (e.g.,
cultural differences, differing state laws, union contracts, etc.). There are many options available in designing a drug program ano, with limited industry experience with drug programs, there was not a great deal of data available on which the NRC would rely in requiring a specific program at all licensee sites.
In addition, the Comp.ission believed that industry must accept greater responsibility fer improving their own cperations. Given the gereral nature of the proposed rule in 1984 and the emerging national debate, legal anc constitutional issues on drug testing, the Commission chose to recognize and encourage the industry's initiative in self-managerent by accepting a program l
which, except for the matter of enforceability by NPC, was actually more 1
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QUESTION 12 (Continued) detailed and comprehensive than the rule proposed by the staff. The final Policy Statement accepting the industry program, including the Commission's expectations on testing and disciplinary measures, was written by the Commission and those provisions were agreed to by NUMARC.
The NRC has been carefully watching the industry in this effort to evaluate how the Policy Statement has worked. Shortly, the Commission will review industry progress and will determine whether to continue with the Policy Statement or move forward with implementation of a rule.
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