ML23151A459

PR-050 - 52FR34223 - Revision of Backfitting Process for Power Reactors

ML23151A459
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Issue date:	09/10/1987
From:	Stello V NRC/EDO
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PR-050, 52FR34223
Download: ML23151A459 (1)

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ADAMS Template: SECY-067 DOCUMENT DATE: 09/10/1987 TITLE: PR-050 - 52FR34223 - REVISION OF BACKFITTING PROCESS FOR POWER REACTORS CASE

REFERENCE:

PR-050 52FR34223 KEYWORD: RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete

STATUS OF RULEMAKING PROPOSED RULE: PR-050 RULE NAME: REVISION OF BACKFITTING PROCESS FOR POWER REACTORS PROPOSED RULE FED REG CITE: 52FR34223 PROPOSED RULE PUBLICATION DATE: 09/10/87 NUMBER OF COMMENTS: 29 ORIGINAL DATE FOR COMMENTS: 10/13/87 EXTENSION DATE: I I FINAL RULE FED. REG. CITE: 53FR20603 FINAL RULE PUBLICATION DATE: 06/06/88 OTES ON COMMISSION APPROVED FINAL RULE BY A 4-0 VOTE (SRM-M880527).

TATUS OF RULE FILE~ OCATED ON Pl.

TO FIND THE STAFF CONTACT OR VIEW THE RULEMAKING HISTORY PRESS PAGE DOWN KEY HISTORY OF THE RULE PART AFFECTED: PR-050 RULE TITLE: REVISION OF BACKFITTING PROCESS FOR POWER REACTORS PROPOSED RULE PROPOSED RULE DATE PROPOSED RULE SECY PAPER: 87-204 SRM DATE: 08/21/87 SIGNED BY SECRETARY: 09/04/87 FINAL RULE FINAL RULE DATE FINAL RULE SECY PAPER: 88-102 SRM DATE: 06/06/88 SIGNED BY SECRETARY: 05/31/88 STAFF CONTACTS ON THE RULE CONTACT!: STEVEN F. CROCKETT MAIL STOP: H-1035 PHONE: 634-1465 CONTACT2: MAIL STOP: PHONE:

DOCKET NO. PR-050 (52FR34223)

In the Matter of REVISION OF BACKFITTING PROCESS FOR POWER REACTORS DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT

- 09/09/87 09/04/87 FEDERAL REGISTER NOTICE - PROPOSED RULE 09/29/87 09/24/87 COMMENT OF OHIO CITIZENS FOR RESPONSIBLE ENERGY (SUSAN L. HIATT) ( 1) 10/02/87 09/27/87 COMMENT OF SHELLEY NELKENS ( 2) 10/06/87 10/01/87 COMMENT OF SIERRA CLUB LEGAL DEFENSE FUND, INC.

(JULIE E. MCDONALD) ( 3) 10/08/87 10/02/87 COMMENT OF PETER R. MITCHELL ( 4) 10/13/87 10/13/87 COMMENT OF UNION OF CONCERNED SCIENTISTS (ELLYN R. WEISS) ( 5) 10/13/87 10/13/87 COMMENT OF NORTHEAST UTILITIES (E.J. MROCZKA) ( 6) 10/14/87 10/13/87 COMMENT OF NUCLEAR MANAGEMENT & RESOURCES COUNCIL

( BYRON LEE, JR.) ( 7) 10/14/87 10/09/87 COMMENT OF YANKEE ATOMIC ELECTRIC COMPANY (DONALD W. EDWARDS) ( 8) 10/14/87 10/13/87 COMMENT OF NUCLEAR UTILITY BACKFITTING & REFORM GRP (NICHOLAS S. REYNOLDS) ( 9) 10/15/87 10/02/87 COMMENT OF CONSERVATION COUNCIL OF NORTH CAROLINA (JOHN RUNKLE) ( 10) 10/15/87 10/08/87 COMMENT OF WASHINGTON PUBLIC POWER SUPPLY SYSTEM (G.C. SORENSEN) ( 11) 10/15/87 09/29/87 COMMENT OF COMMONWEALTH EDISON (L.D. BUTTERFIELD) ( 12) 10/15/87 10/09/87 COMMENT OF ILLINOIS INSTITUTE OF TECHNOLOGY (Z. REYTBLATT) ( 13) 10/15/87 10/07/87 COMMENT OF FLORIDA POWER CORPORATION (WALTERS. WILGUS) ( 14)

DOCKET NO. PR-050 (52FR34223)

DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT 10/15/87 10/05/87 COMMENT OF ROBERT C. ERDMANN ( 15) 10/15/87 10/07/87 COMMENT OF GEORGIA POWER COMPANY (L.T. GUCWA) ( 16) 10/15/87 10/12/87 COMMENT OF MARVIN I. LEWIS ( 17) 10/16/87 10/12/87 COMMENT OF WESTINGHOUSE ELECTRIC CORPORATION (WILLIAM J. JOHNSON) ( 18) 10/16/87 10/13/87 COMMENT OF BALTIMORE GAS AND ELECTRIC (JOSEPH A. TIERNAN) ( 19) 10/19/87 10/07/87 COMMENT OF CUYAHOGA COUNTY CONCERNED CITIZENS (CHRIS TREPAL) ( 20) 10/19/87 10/11/87 COMMENT OF BETTY JOHNSON ( 21) 10/19/87 09/10/87 COMMENT OF WELLS EDDLEMAN ( 22) 10/19/87 10/09/87 COMMENT OF MARVIN I. LEWIS ( 23) 10/19/87 10/16/87 COMMENT OF NUCLEAR INFORMATION & RESOURCE SERVICE (STEPHANIE MURPHY) ( 25) 10/19/87 10/16/87 COMMENT OF FLORIDA POWER & LIGHT COMPANY (C.O. WOODY) ( 26)

- 10/20/87 10/09/87 COMMENT OF CONSOLIDATED EDISON CO.OF NEW YORK, INC.

(MURRAY SELMAN) ( 27) 10/21/87 10/19/87 COMMENT OF TENNESSEE VALLEY AUTHORITY (R. GRIDLEY) ( 28) 10/22/87 10/20/87 COMMENT OF PUBLIC CITIZEN - CRITICAL MASS PROJECT (KEN SOSSONG) ( 29) 11/13/87 11/13/87 LTR NUCLEAR UTILITY BACKFITTING & REFORM GROUP (REYNOLDS) RE COMMENTS IN REPLY TO THE COMMENTS OF OCRE, INC. FILED ON 9/24/87 (SEE COMMENT #1) 11/19/87 10/15/87 COMMENT OF NEW YORK POWER AUTHORITY (JOHN C. BRONS) ( 24) 06/01/88 05/31/88 FEDERAL REGISTER NOTICE - FINAL RULE

j) s

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DOt KETEO USNRC NUCLEAR REGULATORY COMMISSION '88 JUN -1 P1 :oa 10 CFR PART 50 OFF !G;._ ~F >.;.1 1 i!:i-< .*

OOCKt I iN * <:,, ,

• REVISION OF BACKFITTING PROCESS FOR POWER REACTOR&A'\-~-- *\ c,.

AGENCY: Nuclear Regulatory Co1T1T1ission.

ACTION: Final rule.

SUMMARY

The Nuclear Regulatory Corm1ission is promulgating an amended rule which governs the backfitting of nuclear power plants. This action

• . ;~*~- , t~_ r

. . .3ary

. in order to have ,1 backfit rule which unambiguously conforms with the August 4, 1987 decision of the U.S. Court of Appeals for the District of Columbia Circuit i~ Union of Concerned Scientists, et al., v.

U.S. Nuclear Regulatory Conmission. This ~ction is intended to clarify uhen economic costs may be considered in backfitting nuclear power plants. The final rule as set out in this document is substantially the same as the proposed rule (52 FR 34223; September 10, 1987).

EFFECTIVE DATE: July 6,. 1988 * .

~

• r **HHER INFORMATION CONTACT:

(

Steven F. Crockett, Office of the General Counsel, U.S. Nuclear Regulatory Col'11Tlission, Washington, D.C.

20555. Phone: (202) 492-1600.

SUPPLEMENTARY INFORMATION:

Background

On September 20, 1985, after an extensive rulemaking proceeding which included sequential opportunities for public colllllent on an

,t\~\i advanced notice of proposed rulemaking (48 FR 44217; Septemb 28, 1983) Jj

( 5>Ff- 2..0603) ;-;2., F-Yl Jlf 2.2.

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2 and a notice of proposed rulemaking (49 FR 47034; November 30, 1984), the Co111T1ission adopted final amendments to its rule which governs the backfitting of nuclear power plants, 10 CFR 50.109 (50 FR 38097; September 20, 1985). Backfitting is defined in some detail in the rule, but for purposes of discussion here it means measures which are directed by the Co111T1ission or by NRC staff in order to improve the safety of nuclear power reactors, and which reflect a change in a prior Commission or staff position on the safety matter in question.

Judicial review of the amended backfit rule and a related internal NRC Manual chapter which partially implemented it was sought and, on August 4, 1987, the U.S. Court of Appeals for the D.C. Circuit rendered its decision vacating both the rule and the NRC Manual chapter which implemented the rule in part. UCS v. NRC, 824 F.2d 103. The Court concluded that the rule, when considered along with certain statements in the rule preamble published in the Federal Register, did not speak unambiguously in tenns that constrained the Commission from considering economic costs in establishing standards to ensure adequate protection of the public health and safety as dictated by section 182 of the Atomic Energy Act. At the same time, the Court agreed with the Coomission that once an adequate level of safety protection had been achieved under section 182, the Comnission was fully authorized under section 1611 of the Atomic Energy Act to consider and take economic costs into account in ordering further safety improvements. The Court therefore rejected the position of petitioners in the case, Union of Concerned Scientists, that economic costs may never be a factor in safety decisions under the Atomic Energy Act.

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3 Because the Court's opinion regarding the circumstances in which costs may be considered in making safety decisions on nuclear power plants was completely in accord with the Commission's own policy views on this important subject, the C011111ission decided not to appeal the decision. Instead, the Comnission decided to amend both the rule and the related NRC Manual chapter (Chapter 0514) so that they conform unambiguously to the Court's opinion. On September 10, 1987, the Co1T111ission published proposed amendments to the rule (52 FR 34223) and provided for a corrrnent period ending on October 13, 1987. 1 In this rulemaking the ColTITiission has adhered to the following safety principle for all of its backfitting decisions. The Atomic Energy Act conmands the Co1T111ission to ensure that nuclear power plant operation provides adequate protection to the health and safety of the public. In defining, redefining or enforcing this statutory standard of adequate protection, the Conmission will not consider economic costs. However, adequate protection is not absolute protection or zero risk. Hence safety improvements beyond the minimum needed for adequate protection are 11n its corrments on the proposed amendments, the Union of Concerned Scientists asserts that the Federal Register notice of the proposed amendments was technically defective. UCS argues that since the Court had vacated the entire rule, the Federal Register notice should have proposed enactment of an entire, amended, role, rather than simply amendments to the vacated rule. In weighing the technical merit of UCS' argument, it should be noted that as of the date of the Federal Register notice, the mandate of the Court had not yet issued and the rule was thus still legally in effect. However, the more important consideration is that the notice clearly revealed the Conmission's intent to reissue the backfit rule once it had been confonned to the Court's decision. UCS understood this intent and took the opportunity to resubmit the corrments

[Footnote Continued]

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4 possible. The CoDlllission is empowered under section 161 of the Act to impose additional safety requirements not needed for adequate protection and to consider economic costs in doing so.

The 1985 revision of the backfit rule, which was the subject of the Court's decision, required, with certain exceptions, that backfits be imposed only upon a finding that they provided a substantial increase in the overall protection of the public health and safety or the conman defense and security and that the direct and indirect costs of implementation were justified in view of this increased protection. The amended rule, set out in this document, restates the exceptions to this requirement for a finding, so that the rule will clearly be in accord with the safety principle stated above. Particularly in response to the Court's decision, the rule now provides that if the contemplated backfit involves defining or redefining what level of protection to the public health and safety or colTITlon defense and security should be regarded as adequate, neither the rule's "substantial increase" standard, nor its "costs justified" standard, see§ 50.109(a)(3), is to be applied. (See

§ 50.109(a)(4)(iii).) Also in response to the Court's decision, see 824 F.2d at 119, the rule now also explicitly says that the Co1T111ission shall always require the backfitting of a facility if it determines that such regulatory action is necessary to ensure that the facility provides

[Footnote Continued]

it had submitted during the rulemaking leading up to the 1985 revision of the rule. In any event, the COITITlission is publishing the entire rule in this document.

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5 adequate protection to the health and safety of the public and is in accord with the comnon defense and security.

On instruction from the C01T1Tiission, the NRC staff has amended its Manual chapter on plant-specific backfitting to ensure consistency with the Court's opinion. Copies of the revised chapter are available for public inspection in the Corrmission's Public Document Room, 1717 H Street, NW., Washington, DC 20555. 2

- Response to Corranents COITITlents were received from 12 utilities, one Federal agency (DOE},

one vendor, seven individuals, seven citizens' groups, and two industry groups. Lengthy and detailed co1J111ents were submitted by the Union of Concerned Scientists {UCS} and the Nuclear Utility Backfitt1ng and Refonn Group (NUBARG). Both organizations were active in the rulemaking which led to the 1985 revision of the rule. The conments submitted by these two groups encompassed most of the c01T111ents made by others. Below, the Colll11ission paraphrases the chief comnents and responds to them. The Comnission has given careful consideration to every corrment. The 2Several cOlllllenters argue that the revised Manual chapter should undergo what amounts to notice and conment rulemak1ng. However, the Manual chapter, if it is a rule at all, is a rule of agency organization, procedure, or practice, and therefore is not subject to the notice and c011111ent requirements of the Administrative Procedure Act. See 5 U.S.C.

§ 553(b}(A); see also§ 553(a)(2). The Conmfss1on dfd publish for comnent an earlier version of Manual Chapter (49 FR 16900; April 20, 1984}, but that version was already in effect when ft was published for

[Footnote Continued]

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6 original comnents may be viewed in the NRC's Public Document Room in Washington, DC.

• Adequate Protection" The great majority of the coumenters raised issues about the rule's use of the phrase "adequate protection*. This phrase is used in the rule's exception provisions. See§ 50.109(a)(4). Generally, the rule requires, among other things, that ft be shown for a given proposed backfit that implementation of the backfit wou*ld bring about a "substantial increase 11 1n overall protection to public health and safety, and that the direct and indirect costs of the backf1t are justified by that substantial increase. See§ 50.109(a)(3). However,§ 50.109(a)(4) also requires that these two standards not be applied in three situations:

First, where the backfit is required to bring a facility 1nto compliance with NRC requirements or the licensee's own written corrmitments; Second, where the backfit is necessary to ensure that the facility provides adequate protection to the health and safety of the public and is in accord with the conmon defense and security; and

[Footnote Continued]

comnent, and it was published for comnent only because the Conmission was sti 11 in the process* of making fundamenta 1 changes to the backfitting process and wanted comnent on the procedures then in effect. See 1d.

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7 Third, as noted above, where the backfit involves defining or redefining what level of protection to the public health and safety or COfllTIOn defense and security should be regarded as adequate.

The comnents on the rule's use of the phrase "adequate protection" generally took two forms, each discussed D10re fully later on in this notice. The first fonn, most fully represented by UCS' corrments, was that the rule itself should actually include a definition of "adequate protection" (the final rule set out in this document does not), a phrase nowhere explicitly defined in general terms, either in the Atomic Energy Act, from which the phrase comes, or in the Corrvnission's regulations.

The second, more modest, fonn of the corrrnents on nadequate protection", most fully represented by NUBARG's comnents, was that one or another of the three exception provisions in the rule was redundant {none is). While not amounting to a call for a definition of "adequate protection", NUBARG's comments displayed some of UCS' uncertainty about what the Commission meant by the phrase.

- Each group had difficulty applying the phrase to characterize past Corrmission action in backfitting. UCS claimed that the Comnission had never backfitted in order to achieve something beyond nadequate protection.u NUBARG, however, claimed that the Coumission had never required a backfit on the grounds that compliance with the regulations was not enough to provide adequate protection. These views, differing in emphasis, reflect the two groups' opposite concerns about the possibility that the C011111ission would use the phrase "adequate protection" arbitrarily. UCS is concerned that the CoRITlission might interpret the phrase uadequate protectionw to refer to a level of safety such that

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8 every proposed improvement would be subjected to cost-benefit analysis.

Conversely, the industry appears concerned that the Comnission might interpret the phrase "adequate protection" to refer to a level of safety such that no proposed improvement would be subjected to cost-benefit analysis.

The C0111Tiission certainly did not intend that this rulemaking should focus on the meaning of the phrase "adequate protection". The main point of this rulemaking was simply to negate the misimpression left by two statements in the preamble to the 1985 version of the backfit rule. UCS puts forward two grounds for its emphasis on the phrase "adequate protection". First, UCS asserts that *[t]he crucial decision as to

• whethe~ cost benefit analysis will be used in assessing the need for backfitt1ng is dependent on whether the particular backfitting under consideration is needed to ensure adequate safety **** " Second, UCS claims that the Court "ordered" the Conmission to "stop trying to obscure its intentions through ambiguous and vague language **** "

However, as will be explained more fully below, the Court's decision turned not on the rule's lack of a definition of "adequate protection" but rather on two statements which seemed to the Court to imply that the COfJlllission intended to take costs into consideration in detenn1ning what "adequate protection" required; the meaning of "adequate protection" was simply not an issue in the litigation. Moreover, UCS overestimates the role the phrase "adequate protection" plays in the backfit rule. The threshold decision in considering a proposed backfit, and very often the

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9 only decision that need be made, 3 is not whether adequate protection is at stake but rather whether the facility is in compliance with the Conmission's requirements and the licensee's written c001111tments.

Even if UCS is right about the importance of the phrase "adequate protection", there is nothing unusual or imprudent, and certainly nothing illegal, about decisions which ultimately turn on the application -- by duly constituted authority and after full consideration of all relevant information -- of phrases which are not fully defined. Consider, for instance, the "reasonable assurance" detennination the C011111issfon must make before issuing an operating license. 4 Indeed, most of the Conmission's rules and regulations are ultimately based on unquantified and, as we note below, presently unquantifiable ideas of what constitutes "adequate protection".

Were there something peculiarly critical about the role of 11 adequate protection" in the backfit rule, the issue of the phrase's meaning could have been raised in the rulemaking for the 1985 rule. Two of the three exception provisions set out above were in the 1985 revision of the rule, where they used the equivalent phrase "undue risk" instead of "adequate protection". Also, as the Court in UCS v. NRC noted, 824 F.2d at 119, 3For instance, a majority of the plant-specific backfits carried out during the first year after the 1985 revision of the backfit rule became effective were for the sake of compliance. See SECY-86-46, Evaluation of Managing Plant-Specific Backfit Requirements (November 21, 1986), .

411 *** [A]n operating license may be issued by the COfllTlission upon finding that: *** [t]here is reasonable assurance *** that the

[Footnote Continued]

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10 the statement of considerations which accompanied the 1985 version of the rule quite explicitly at least twice limited the consideration of costs in backfitting decisions to situations where "adequate protection" was already secured. 5 Nonetheless, an issue which is a concern of almost every conmenter in this rulemaking should not be ignored. Therefore, the Comnission will answer as best it can the questions the co111T1enters have raised concerning the rule's use of the phrase "ad~uate protection". We begin with UCS' call for an objective and generally applicable definition of "adequate protection". We argue that such a definition is not possible in the near future, but that the public and licensees are nonetheless protected against misuse of the phrase. In the course of responding to UCS' cOITITlents, we shall, of necessity, be making at least preliminary responses to most of NUBARG's co1T1TJents also.

UCS argues that the rule permits the agency to escape its legal responsibility to articulate the factors on which it bases its backfitting decisions. UCS asserts that the rule should "enunciate criteria and guidelines about what constitutes redefining and defining

[Footnote Continued]

activities authorized by the operating license can be conducted without endan~erin9 the health and safety of the public **** 11 10 CFR 50.57(a)(3).

5"The consideration and weighing of costs contemplated by the rule applies to backfits that are intended to result in incremental safety improvements for a plant that already provides an acceptable degree of protection[,]" 50 FR 38103, col. 1; also, *[t]he costs associated with proposed new safety requirements may be considered by the COOJJ1ission

[Footnote Continued]

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11 adequate protection levels, what constitutes an adequate as opposed to a beyond adequate protection level, and what factors place a particular circumstance within the rule or within the exceptions.* Another C011111ent asserts that any definition of *adequate protection" should include the resolution of all outstanding safety issues. Yet another calls for Nobjective criteria", *some real numbers" on releases, accident consequences, and the like.

There does not exist, and cannot exist, at least not yet, a generally applicable definition of "adequate protection" which would guard against every possible misuse of the phrase. Congress established aadequate protection" as the standard the Corrmission is to apply in licensing a plant, see 42 U.S.C. § 2232(a), and gave the Co111nission authority to issue rules and regulations necessary for protection of public health and safety, see 42 U.S.C. § 2201, but Congress did not define "adequate protection", nor did it conmand the Commission to define it.

Such a definition would have to take one of two forms, one of them incapable of preventing the abuse,s the corrmenters are concerned about, and the other simply not possible yet. The first of these would be a verbal definition of the kind encountered 1n, for instance, the various

• reasonable man" standards in the cOOIOOn law. After the pattern of these, the C001nission could say, correctly, that aadequate protectiona is

[Footnote Continued]

provided that the Atomic Energy Act finding 'no undue risk' can be made."

Id. at 38101, col. 3.

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12 not zero risk, that it is the same as "no undue risk", that it has long-tenn and short term aspects, and that ft is that level of safety which the Atomic Energy Act requires for initial and continued operation of a nuclear power plant. However, such a def1nition clearly will not, of itself, prevent the abuses UCS and NUBARG are concerned about, nor is such a standard sufficiently helpful to the NRC staff in actual practice.

Thus, if there 1s to be a useful and generally applicable definition of "adequate protection", it must take another, more precise form, namely, quantitative. Several of the corrmenters seem to have such a definition in mind when they call for "objective criteria", some "real numbers", and the like. In fact, the Corrmfssion is actively pursuing reliable quantitative measures of safety, and some quantitative and generally applicable definition of "adequate protection" may eventually emerge as a byproduct of the C011111ission's efforts, still in their early stages, to implement its general safety goals, which take a partly quantitative fonn. (See 51 FR 30028; August 21, 1986, Policy Statement on Safety Goals.) However, given the state of the art in quantitative safety assessment, it is not reasonable to expect that the C011111ission could make licensing decisions -- let alone decisions on whether to consider cost in backfitting -- wholly on a quantitative definition of "adequate protection". Surprisingly, some of the comnenters who call for

• objective criteria", "some real numbers", and the like, have in the past criticized quantitative risk assessments.

Nonetheless, even in the absence of a useful and generally applicable definition of "adequate protection", the Conmfssion can still make sound judgments about what "adequate protection" requires, by

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13 relying upon expert engineering and scientific judgment, acting in the light of all relevant and material fnfonnation. As UCS itself said in its c011111ents 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 wfll be protected comes down to the .reasoned professional judgment of the responsible official."

The Comnission's exercise of this judgment will take two familiar forms, of which the most important is rule and regulation. An essential point of the C00111ission's having regulations is to flesh out the "adequate protection" standard entrusted to the ColTITlissfon by Congress.

See UCS v. NRC, 824 F.2d at 117-18. Exercising engineering and scientific judgment in the light of all relevant and material information, the NRC identifies potential hazards and then requires that designs be able to cope with such hazards with sufficient safety margins and reliable backup systems. Regulations and guidance arrived at in this way do not, strictly speaking, "define" adequate protection, since there will be times when the NRC issues rules which require something beyond adequate protection. Nonetheless, compliance with such regulations and guidance may be presumed to assure adequate protection at a minimum. As the CoRIIlission has safd on many occasions, compliance with the C01T1T1ission's regulations and guidance *should provide a level of safety sufficient for adequate protection of the public health and safety and comnon defense and security under the Atomic Energy Act." (49 FR 47034, 47036, col. 2, November 30, 1984, proposed 1985 rule; see also 50 FR

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14 38097, 38101, col. 3, September 20, 1985, final 1985 *rule; 51 FR 30028, col. 1, August 21, 1986, Policy Statement on Safety Goals.)

Because "adequate protection" is presumptively usured by compliance with the regulations and other license requirements, all the versions of the backfit rule -- the 1970 rule, the 1985 rule, and the one set out in this document, see§ 50.109(a)(4)(i) -- have a "compliance" exception:

plants out of compliance may be backfitted without findings of "substantial increase" in protection or a "justificat1on" of costs.

However -- and here is where the lack of a general definition for aadequate protection" poses a challenge -- "adequate ~rotection" is only presumptively assured by compliance. As the Conmission said in promulgating the 1985 revision, the presumption may be overcome by, for instance, new infonnation which indicates that improvements are needed to ensure adequate protection. (50 FR 38101 at 38101, col. 3.) Such new infonnation may reveal an unforeseen significant hazard or a substantially greater potential for a known one, or insufficient margins and backup capability. Engineering judgment may, in the light of such infonnation, conclude that restoration of the level of protection presumed by the regulations requires more than compliance. Thus both the 1985 revision and the revision below' contain exemptions for backffts necessary to assure "adequate protectiona, or, as the 1985 rule 0

equivalently said, "no undue risk". See§ 50.109(a)(4)(11) of the rule set out in this document.

If compliance does not assure adequate protection, the Comnission rT1Jst be able to detennine how rooch more protection is required, and a precise and generally applicable definition of "adequate protection"

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15 would facilitate that detennination. But such a definition would have only a limited role to play. The first and most crucial question is whether the proposed backfit is required to bring a plant into compliance. Only if the proposed backfit requires more than compliance with NRC regulations and license conditions need there be a detennination as to what "adequate protection" requires. Given this relation between compliance and "adequate protection*, the industry might be more concerned than UCS is about the lack of a general definition of "adequate protection", for UCS will at least have the comfort of knowing that compliance will be secured before cost is considered, but the industry cannot be sure how 111Jch more than compliance may be asked of it despite the cost.

Where, as in the cases contemplated by the second exception provision of the rule, more than compliance is required and quantitative criteria do not define "adequate protection", the agency must fall back on the second familiar fonn in which engineering judgment is exercised by the Corrmission, namely, case-by-case. Administrative agencies are not required to proceed by rule alone, for the method of case-by-case judgment is quite capable of meeting the requirement that the factors on which administrative decisions are based be articulated. Rather than proceeding by an almost ministerial application of "objective criteria",

the C011111ission DJSt fashion a series of case-by-case judgments into a well-reasoned and factually well-supported body of decisions which, acting as reasoned precedent, can control and guide the Corrmission's exercise of the discretion granted it by Congress in precisely the way in which conman-law precedents control and guide the corrmon law judge's

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16 exercise of his or her judgment. See Nader v. Ray, 363 F.Supp. 946, 954-55 (D.D.C. 1973) (determining what constitutes adequate protection calls for exercise of discretion in a judgmental process very different from acting in accord with a clear, non-discretionary legal duty).

The Comnission foresaw the need to proceed case-by-case on occasion and therefore made it a principal aim of the backfit rule to centralize the responsibility and document the bases for case-by-case decisions for such decisions. The Corrmission thereby hoped to better assure that such decisions as might of necessity be case-by-case would form a reasoned and coherent body. 6 6ucs alleges that in three instances the CorTlllission has abused its discretion by applying cost considerations in specific cases where licensees are in compliance but adequate protection is at stake.

However, UCS is misinformed about the first of the three cases, and its allegations about the other two reduce simply to disagreement over what constitutes adequate protection. We briefly discuss the three cases below.

Citing trade journal articles which quote unnamed NRC sources, UCS claims that the backfit rule caused the NRC staff to change its mind about requiring two licensees to conduct certain inspections and analyses in order justify continued operations. The two plants in question had reactor pump coolant shafts similar to ones which elsewhere had shown a high probability of shearing off under certain conditions. UCS asserts that "[w]e ... learn from this example the inherent lack of logic and circularity ent>edded in the rule: NRC is prevented, by operation of the rule, from asking questions needed to learn the degree of risk of a known equipment problem because they do not know the answers in advance."

However, the facts of the situations were not what UCS alleges them to have been; indeed the backfit rule was not involved. Letters were sent on April 23, 1986 requiring the licensees to submit within 20 days infonnation which would "enable the C011111ission to determine whether or not [their] license[s] should be modified." Such 1nfonnation included infonnation on design, operational history, schedules for inspection, plans for operator training, and "any analysis performed subsequent to those done for the FSAR [Final Safety Analysis Report] which would address the consequences of a locked rotor or broken shaft event during

[Footnote Continued]

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17 Nothing in the Court's ruling in UCS v. NRC forbids the Conmission's approach to "adequate protection". UCS boldly asserts that the proposed rule *completely fail[ed] to comport with the orders and directions of

[Footnote Continued]

plant operation." These letters were sent under the first part of 10 CFR 50.54{f). This part authorizes such infonnation requests without consideration of cost. As an earlier draft of the April 23 letter available in the NRC's Public Document Room shows, the NRC had planned to ask for new analyses under a later part of§ 50.54{f) which authorizes requests not required to assure adequate protection if "the burden to be imposed *** is justified in view of the potential safety significance of the issue to be addressed in the requested information." 10 CFR 50.54(f). (This "safety significance" standard, by its emphasis on "potential", requires less than fs required by the "[actual] substantial increase" standard fn the backfit rule and also avoids the circularity UCS alleges.) However, the staff sensibly opted for first asking whether such analyses had already been done. In fact they had, or were underway when the letters were sent. The backfit rule played no part here.

UCS' second instance of alleged abuse involves the Mark I containment, about whose perfonnance in beyond-design-basis accidents (ones which involve damage to the reactor core) there is substantial uncertainty. UCS asserts that cost considerations have blocked staff action which would have brought about a significant reduction in some of the figures which estimate the probability that the Mark I would fail in certain kinds of beyond-design-basis accidents. UCS adds in passing that those figures represent undue risk. The NRC staff has already made a formal reply to similar charges of undue risk. See, e.g., Boston Edison Co. {Pilgrim Nuclear Generating Station), Interim Director's Decision under 10 CFR 2.206, DD-87-14, 26 NRC 87,95-106 (1987). Suffice ft here to say that the NRC staff has by no means completed its considerations of the Mark I containment, but that, given present infonnation, the staff has concluded that overall severe-accident risks at plants with Mark I containments are not undue. Id. at 104-106. UCS is content to put forward only unsupported assertions to the contrary. Thus the staff may legitimately consider cost when deciding whether to backfft the Mark I containments.

UCS' third allegation of abuse rehearses part of its February 10, 1987 § 2.206 Petition to the Conm1ssion for irrmediate action to relieve allegedly undue risks posed by nuclear power plants designed by the Babcock &Wilcox Company. The NRC's Director of Nuclear Reactor Regulation responded fully to the Petition, denying it, on October 19, 1987 (UCS' c011111ents on the proposed backfit rule were submitted on October 13). See Director's Decision Under 10 CFR 2.206, DD-87-18, 26

[Footnote Continued]

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18 the Court of Appeals in UCS v. NRC 11 , that the Court "could not have been more clear about the defects of the backfit rule", that the proposed revised rule "suffers from the exact same defects" as the one vacated, that, indeed, "the new proposal is even more devoid of objective guidance or criteria *** than was its predecessor."

UCS' criticisms are based on part of a single paragraph in the Court's decision. In pertinent part, that paragraph says," *** In our view, the backfitting rule is an exemplar of ambiguity and vagueness; indeed, we suspect that the ColTlllission designed the rule to achieve this very result. The rule does not explicate the scope or meaning of the three listed 'exceptions'. The rule does not explain the action the Co11111ission will [in italics] take when a backfit falls within one of these exceptions. In short, the rule does not speak in terms that constrain the COIJITiission from operating outside the bounds of the statutory scheme." 824 F.2d at 119.

UCS says that this portion of a paragraph was an 11 order 11 by the Court to get the CoD111ission to "stop trying to obscure its intentions through ambiguous and vague language **** " Whether the Court's language amounts to an *order" or only strong advice, we have followed it. For one thing, the rule explicitly says that backfits falling within the exceptions will be imposed (inexplicably, UCS asserts that the proposed

[Footnote Continued]

NRC (October 19, 1987). The Director concluded that "there are no substantial health and safety issues that would warrant the suspension or revocation of any license or permit for such fac11 ities." Sl 1p Opinion

[Footnote Continued]

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19 rule did not have this provision). See§ 50.109(a)(4). For another, both in what we have already said, and in what we shall be saying in response to NUBARG's COlllllents on the exceptions provisions, we shall have explicated the scope and meaning of the three listed exceptions.

However, we have not taken the quoted language of the Court to mean that, after years of making rules and adjudicating cases which ultimately depend on the ColTillission's judgment about what *adequate protection" requires, the Co1T111ission should be obliged to give a mechanically applicable definition of "adequate protection" in order to avoid using the time-honored method of case-by-case, precedent-guided, judgment to implement only a part of the backfit rule. Certainly, the Court never even noted a lack of a general definition of "adequate protection" in the rule, let alone "ordered" the Corrmission to provide such a definition.

UCS' position lacks all sense of proportion. We must emphasize the core of the Court's decision, rather than get bogged down by transforming a suspicion and a few criticisms of the rule into an order to undertake an unprecedented task of definition.

Reviewing the exceptions in the rule, and various statements in the Federal Register notice accompanying the rule, the Court said, "We conceivably could read the tentlS 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

[Footnote Continued]

at 63. Simply because UCS disagrees with such conclusions does not mean that the Corrmission is misusing the "adequate protection" standard.

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20 requires]." Id. Moreover, the Court says this despite the lack of any su11111ary, general, *objective" definition of "adequate protection" in the rule.

But the Court then went on to say, "Statements that the Corrm1ssion has made in pro11Ulgating the rule and in defending it before this court, however, disincline us from interpreting the rule fn this fashion." Id.

Again, it is not the lack of a definition of adequate protection that disinclined the Court from saving the rule, but rather certain statements the CoIT111ission had made which seemed to suggest that the COIT111fssion might consider economic cost when deciding what adequate protection required.

The Three Exceptions~

Echoing the Court's remark that the rule adoes not explicate the scope or meaning of the three listed 'exceptions'", id., NUBARG "believes that there is a substantial amount of overlap in these exceptions and that they have not been adequately defined or explained in the proposed rule." NUBARG and others representing the industry are concerned that the two exception provisions which use the phrase "adequate protectfonu, §§ 50.109(a)(4)(if) and (111), 11ay *swallow" the rule. One industry comnenter objects to the notion, implied by

§ 50.109(a)(4)(ii), that adequate protection might require more than compliance. Another is concerned that§ 50.109(a)(4)(1ii), the exception which has been added in response to the Court's ruling, might lead to redefinitions of "adequate protection" that would threaten loss of licenses.

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21 To avoid these results, NUBARG and others recommend deleting one of the two exception provisions which use the phrase "adequate protection".

NUBARG's choice is§ 50.109{a){4)(ii), retained from the 1985 version of the rule, where it used the equivalent phrase, "no undue risk". This section provides that the "substantial increasen and "costs justified" standards will not apply to backfits necessary to provide adequate protection to public health and safety. NUBARG calls this provision redundant to the exception for backfits required for the sake of compliance,§ 50.109(a){4){i). As was noted above, NUBARG reports that its research has uncovered no case in which the Commission "has recognized that some additional measures not contained in existing requirements are necessary to ensure that a facility continues to meet the current level of adequacy." Two other corrmenters believe that the exception provision added because of the litigation,§ 50.109(a)(4)(iii),

should be deleted, as being redundant to the provision NUBARG would like to see deleted.

No matter which of the two provisions the corrmenter would like to see deleted, the conrnenter would like some restrictions placed on the use of the remaining one. The restriction by far the most frequently proposed is that no action may be taken under the remaining exception provision in the absence of ~significant new infonnation or the occurrence of an event which clearly shows" that the action is necessary.

In sum, these corrmenters either reopen an issue settled in 1985 or they reconmend deleting that part of the rule which directly responds to the Court's ruling. We take neither course, for, even putting the 1985 rule and the Court's ruling aside, if either of the two provisions were

[7590-01]

22 to be deleted, an essential power of the Corrmission would be remain unimplemented.

First, the exception for backffts necessary to secure adequate protection,§ 50.109(a)(4)(if), R1Jst be retained, because it must be made clear that Comnissfon action is not to be obstructed by cost considerations in a situation where compliance has indeed proved to be insufficient to secure the level of protection presumed in the rule, order, or commitment in question. Despite the results of NUBARG's research, such situations have arisen. See, e.g., SECY-86-346, "Evaluation of Managing Plant-Specific Backfit Requirements",

November 21, 1986. Accordingly, this exception provision 1s not redundant to the exception for backfits necessary to restore compliance.

Neither is it redundant to the exception for backfits involving the defining or redefining of "adequate protection", for the latter exception assumes some change in the NRC's judgment of what level of protection should be regarded as "adequate".

Retaining§ 50.109(a)(4)(ii) will not give the Corrmission the power to proclaim at will that compliance is not enough. As we said 1n the statement of considerations accompanying the 1985 rule, and have fn part reiterated in the response to UCS' comnents, the regulations, though they do not define "adequate protection", are presumed to ensure it, and, in the absence of a redefinition of aadequate protectionu, that presumption can be overcome only by significant new information or some showing that the regulations do not address some significant safety issue. a[I]t may be presumed that the current body of NRC safety regulations provides adequate protection. Where new fnfonnation indicates that improvements

[7590-01]

23 are needed to ensure there is 'no undue risk' on *** a *** basis which the Corrmission believes to be the minimum necessary, such requirements must be imposed." (50 FR at 38101-102.)

Second, the exception provision for backf1ts which are necessary under a defining or redefining of "adequate protection",

§ 50.109(a)(4)(ii1), must be retained because it must be made clear that, as the Court held~ cost may not be a factor in setting the level of protection judged as "adequate". 7 As NUBARG acknowledges, citing Power Reactor Development Co. v. International Union of Electrical, Radio and Machine Workers, AFL-CIO, 367 U.S. 396, 408 (1961), the Co1T111ission has both the power to define "adequate protection", and the power to re-define it. 8 Without this last exception provision, it might appear from the rule either that the Co111Tiission had no such power or that it was restricted by cost considerations, contrary to the Court's ruling. Nor should this exception provision be limited to situations involving "significant new infonnation", as proposed in several corrments.

7As the rule notes in§ 50.109(a)(7), cost may nonetheless be a consideration in choosing the means of achieving "adequate protection".

8rhe words "defining or redefiningn in this third exception should not be construed necessarily to mean aproviding a useful and generally applicable definitiona, at least not until such a definition becomes possible. Under present conditions, the Corrm1ssion will have "defined or redefined what level of protection is to be regarded as adequate" if it makes a judgment that, although compliance assures the level of protection that had been thought of as adequate, that level of protection should no longer be considered adequate.

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24 Thfs last exception may be thought by some to threaten to swallow the backfit rule. We believe, however, that instances of backfits based on a "redefinition" of *adequate protection" will be rare. Moreover, the case-by-case approach which is required in the absence of a general definition of "adequate protection" provides licensees -- and the public

-- a large measure of protection from arbitrary action by the Comnission.

Citing case law, NUBARG says that, in applying this last exception provision, the Corrmission 11 must act rationally and consistently in light of available evidence", and 11 must apply a reasoned analysis indicating the prior policies and standards are being changed, not casually ignored **** 11 We wholly agree, and believe that the approach envisioned by the backfit rule will facilitate the Co111n1ssion's acting accordingly.

Other Matters Two other corrments bearing on the phrase "adequate protection" require an explicit response. First, several conmenters from the industry would prefer that the rule state that the "documented evaluation" which the NRC R1Jst prepare in connection with any action under one of the exception provisions, see§ 50.109(a)(4), should include consideration of as many of the factors which§ 50.109(c) requires of a "backfit analysis" as are appropriate.

The suggested modification of the rule would have only limited utility. Few of the factors listed in§ 50.109(c} of the rule are appropriate for consideration in a documented evaluation justifying

[7590-01]

25 action under the compliance exception in the rule. It is true that several of the factors in§ 50.109(c), indeed, all of them but those in paragraphs (c)(5) and (7) and some of those in paragraph (c){8) are appropriate for consideration under the "adequate protection" exception, to the extent that they require a showing of exactly what the licensees must do and a showing that the backfit in question actually contributes to safety. However, the Co11111ission believes that the rule's requirement that the documented evaluation "include a statement of the objectives of and reasons for the modification and the basis for invoking the exception" adequately assures that the factors in § 50.109(c) will be considered to the extent relevant, without their being listed and labeled as if they were a part of a§ 50.109(c) analysis. Thus, little, if anything, is to be gained by an explicit requirement that§ 50.109(c) factors be considered in a documented evaluation.

Second, one citizens' group asserts that the backfit rule should not apply to rulemaking. This issue was thoroughly discussed in 1985.

However, this group's conment puts the issue in a slightly altered light, and provides another opportunity to clarify the meaning of "adequate protection". The group argues that since rules "define" "adequate protection", the C00111ission cannot apply the rule's "substantial increase" and "cost justified" standards in rulemaking without applying

[7590-01]

26 cost considerations in setting the standard of adequate protection, contrary to the Court's holding.

The answer to this conment is, of course, that the rules do not, strictly speaking, "define* *adequate protection", and they only presumptively assure it. Not only may there, as stated above, be individual cases that require actions that go beyond what is necessary under the regulations to assure adequate protection, there will also be times when the NRC issues a rule which requires something beyond adequate protection. This follows directly from the Commission's power under section 161 of the Atomic Energy Act, affinned by the Court, to issue rules or orders to "minimize danger to life or property." See 42 U.S.C.

§ 2201; see also USC v. NRC, 824 F.2d at 118. If a proposed rule requires something more than adequate protection, applying a cost standard to the proposed rule will not be introducing cost considerations into the setting of the adequate protection standard and is therefore permitted. Of course if the rule is directed at either establishing what level of protection is "adequate" or assuring that such a level of protection is met, then cost will play no role.

The backfit rule as set out below is substantially the same as the rule proposed in the Federal Register. (See 52 FR 34223; September 10, 1987.) Provisions which appeared at the end of§ 50.109(a)(4) of the proposed rule, or in the footnote to that paragraph, appear below in new paragraphs (a)(5) through (7).

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27 Environmental Impact: Categorical Exclusion The NRC has detennined that this final rule is the type of action described in categorical exclusion 10 CFR 51.22(c)(3). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this final rule.

Paperwork Reduction Act Statement This final rule does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.). Existing requirements were approved by the Office of Management and Budget, Approval Number 3140-0011.

Regulatory Analysis The revision to 10 CFR 50.109 will bring it into conformance with the holding in Union of Concerned Scientists, et al., v. U.S. Nuclear Regulatory Comnission, D.C. Cir. Nos. 85-1757 and 86-1219 (August 4,

- 1987). The revision clarifies the backfit rule to reflect NRC practice that, in detennining whether to adopt a backfit requirement, economic costs will be considered only when addressing those backfits involving safety requirements beyond those needed to ensure the adequate protection of public health and safety. Such costs are not considered when establishing the adequate protection of public health and safety. This revised rule does not have a significant impact on State and local governments and geographical regions, public health and safety, or the environment; nor does it represent substantial costs to licensees, the

[7590-01]

28 NRC, or other Federal agencies. This constitutes the regulatory analysis for this rule.

Regulatory Flexibility Act Certification In accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C.

§ 605(b), the C01T1nission hereby certifies that this final rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. The affected facilities are licensed under the provisions of 10 CFR 50.21(b) and 10 CFR 50.22. The companies that own these facilities do not fall within the scope of "small entities" as set forth in the Regulatory Flexibility Act or the Small Business Size Standards set forth in regulations issued by the Small Business Administration in 13 CFR Part 121.

Backfit Analysis The NRC has determined that a backfit analysis is not required for this rule because it does not impose requirements on 10 CFR Part SO licensees.

List Of Subjects In 10 CFR Part 50 Antitrust, Classified information, Fire prevention, Incorporation by reference, Intergovernmental relations, Nuclear power plants and reactors, Penalty, Radiation protection, Reactor siting criteria, Reporting and Recordkeeping requirements.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act

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29 of 1974, as amended, and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR Part 50.

Part 50 - Domestic Licensing Of Production And Utilization Facilities

1. The authority citation for Part 50 is revised to read as follows:

AUTHORITY: Secs. 102, 103, 104, 105, 161, 182, 183, 186, 189, 68 Stat. 936, 937, 938, 948, 953, 954, 955, 956, as amended, sec. 234, 83 Stat. 1244, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2201, 2232, 2233, 2236, 2239, 2282); secs. 201, as amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846).

Section 50.7 also issued under Pub. L.95-601, sec. 10, 92 Stat. 2951 (42 U.S.C. 5851). Section 50.10 also issued under secs. 101, 185, 68 Stat. 936, 955, as amended (42 U.S.C. 2131, 2235); sec. 102, Pub. L.91-190, 83 Stat. 853 (42 U.S.C. 4332).

Sections 50.23, 50.35, 50.55, and 50.56 also issued under sec. 185, 68 Stat. 955 (42 U.S.C. 2235). Sections 50.33a, 50.55a and Appendix Q also issued under sec. 102, Pub. L.91-190, 83 Stat. 853 (42 U.S.C. 4332). Sections 50.34 and 50.54 also issued under sec. 204, 88 Stat. 1245 (42 U.S.C. 5844). Sections 50.58, 50.91, and 50.92 also issued under Pub. L.97-415, 96 Stat. 2073 (42 U.S.C.

2239). Section 50.78 also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Sections 50.80-50.81 also issued under sec. 184, 68 Stat. 954, as amended (42 U.S.C. 2234). Section 50.103 also issued under sec. 108, 68 Stat. 939, as amended (42 U.S.C. 2138).

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30 Appendix Falso issued under sec. 187, 68 Stat. 955 (42 U.S.C.

2237).

For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2273); §§ 50.lO(a), (b), and (c), 50.44, 50.46, 50.48, 50.54, and 50.BO(a) are issued under sec. 161b, 68 Stat. 948, as amended (42 U.S.C. 2201(b)); §§ 50.lO(b) and (c), and 50.54 are issued under sec. 161i, 68 Stat. 949, as amended (42 U.S.C.

2201(1)); and§§ 50.9, 50.55(e), 50.59(b), 50.70, 50.71, 50.72, 50.73, and 50.78 are issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201(0)).

2. Section 50.109 is revised to read as follows:

§ 50.109 Backfitting.

(a)(l) Backfitting is defined as the modification of or addition to systems, structures, components, or design of a facility; or the design approval or manufacturing license for a facility; or the procedures or organization required to design, construct or operate a facility; any of which may result from a new or amended provision in the CoD111ission rules or the imposition of a regulatory staff position interpreting the Corrmission rules that is either new or different from a previously applicable staff position after:

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31 ,

(1) The date of issuance of the construction pennit for the facility for facilities having construction pennits issued after October 21, 1985; or (11) Six months before the date of docketing of the operating license application for the facility for facilities having construction pennits issued before October 21, 1985; or (111) The date of issuance of the operating license for the facility for facilities having operating licenses; or (iv) The date of issuance of the design approval under Appendix M, N, or O of this part.

(2) Except as provided in paragraph (a)(4) of this section, the Corrmission shall require a systematic and documented analysis pursuant to paragraph (c) of this section for backfits which it seeks to impose.

(3) Except as provided in paragraph (a)(4) of this section, the Commission shall require the backfitting of a facility only when it detennines, based on the analysis described in paragraph (c) of this section, that there 1s a substantial increase in the overall protection of the public health and safety or the coR1110n defense and security to be derived from the backfit and that the direct and indirect costs of implementation for that facility are justified in view of this increased protection.

(4) The provi_sions of paragraphs (a){2) and (a)(3) of this section are in~pplicable and, therefore, backfit analysis is not required and the standards in paragraph (a)(3) of this section do not apply where the Comnission or staff, as appropriate, finds and

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32 declares, with appropriate documented evaluation for its finding, either:

(i) That a modification is necessary to bring a facility into compliance with a license or the rules or orders of the Commission, or into confonnance with written c0111Tiitments by the licensee; or (ii) That regulatory action is necessary to ensure that the facility provides adequate protection to the health and safety of the public and is in accord with the corrmon defense and security; or (iii) That the regulatory action involves defining or redefining what level of protection to the public health and safety or corrmon defense and security should be regarded as adequate.

(5) The Co11111ission shall always require the backfitting of a facility if it determines that such regulatory action is necessary to ensure that the facility provides adequate protection to the health and safety of the public and is in accord with the c01T1Tion defense and security.

(6) The documented evaluation required by paragraph (a)(4) of this section shall include a statement of the objectives of and reasons for the modification and the basis for invoking the exception. If imnediately effective regulatory action is required, then the documented evaluation may follow rather than precede the regulatory action.

(7) If there are two or more ways to achieve compliance with a license or the rules or orders of the Corrmission, or with written licensee corrmitments, or there are two or more ways to reach a level of protection which is adequate, then ordinarily the applicant or

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33 licensee is free to choose the way which best suits its purposes.

However, should it be necessary or appropriate for the Co11111ission to prescribe a specific way to comply with its requirements or to achieve adequate protection, then cost may be a factor in selecting the way, provided that the objective of compliance or adequate protection is met.

(b) Paragraph (a)(3) of this section shall not apply to backfits imposed prior to October 21, 1985.

(c) In reaching the detennination required by paragraph {a)(3) of this section, the Corrmission will consider how the backfit should be scheduled in light of other ongoing regulatory activities at the facility and, in addition, will consider infonnation available concerning any of the following factors as may be appropriate and any other infonnation relevant and material to the proposed backfit:

(1) Statement of the specific objectives that the proposed backfit is designed to achieve; (2) General description of the activity that would be required by the licensee or applicant in order to complete the backfit; (3) Potential change in the risk to the public from the accidental off-site release of radioactive material; (4) Potential impact on radiological exposure of facility employees; (5) Installation and continuing costs associated with the backfit, including the cost of facility downtime or the cost of construction delay;

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34

{6) The potential safety impact of changes in plant or operational complexity, including the relationship to proposed and existing regulatory requirements; (7) The estimated resource burden on the NRC associated with the proposed backfit and the availability of such resources; (8) The potential impact of differences in facility type, design or age on the relevancy and practicality of the proposed backfit; (9) Whether the proposed backfit is interim or final and, if interim, the justification for imposing the proposed backfit on an interim basis.

(d) No licensing action will be withheld during the pendency of backfit analyses required by the Coll1Tlission's rules.

(e) The Executive Director for Operations shall be responsible for implementation of this section, and all analyses required by this section shall be approved by the Executive Director for Operations or his designee.

Dated at Rockville, Maryland this~(~ay of ~ / , 1988 For the Nuclear Regulatory Co11111ission,

NUCLEAR UTILITY BACKFITTING AND REFORM GROUP 1200 SEVENTEENTH STREET, N . W .

WASHINGTON , D . C . 20036 TELEPHONE (202) 857 - 9817 November 13, 1987 Mr. Samuel J. Chilk Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attn: Docketing and Service Branch Subj: Proposed Rule: Revision of Backfitting Process for Power Reactors, 52 Fed. Reg.

34,223 (Sept. 10, 1987)

Dear Mr. Chilk:

The Nuclear Utility Backfitting and Reform Group (NUBARG) hereby submits the following comments in reply to the comments filed on September 24, 1987 by the Ohio Citizens for Responsible Energy, Inc. (OCRE) on the above-referenced proposed rule.

NUBARG filed its own comments on the proposed rule on October 13, 1987. The following reply comments only address the revision to 10 C.F.R. § 50.109(a)(l) proposed by OCRE.!/

In brief, OCRE takes the position that "rulemaking, by definition, must be exempt from the backfit rule. OCRE Comments at 1. The Commission should reject this argument, and an accompanying proposed revision to the definition of backfitting, because such a proposal is both untimely and incorrect as a matter of law.

OCRE's position that rulemaking activities should be exempt from the backfitting rule is untimely and goes beyond the scope of the proposed rule. The proper definition of backfitting --

and hence the scope of Section 50.109 -- was addressed and r esolved in the initial promulgation of the backfitting rule in 1985. The Commission determined at that time that "those backfits imposed by rulemaking should undergo the same scrutiny

!/ The utility members of NUBARG, for purposes of these reply comments, are the same as those listed in our October 13 comments as well as Consolidated Edison Company of New York.

Mr. Samuel J. Chilk November 13, 1987 Page 2 as proposed by other means." 50 Fed. Reg. 38,097, 38,101 (1985).

It thus adopted a definition of backfitting that includes modifications required by new or amended Commission regulations.

10 C.F.R. S 50.109(a)(l). This aspect of the definition was not challenged on judicial review. As a result, the inclusion of rulemaking activities within the scope of the backfitting rule is settled and is not an issue in the present rulemaking, which concerns amendments only to 10 C.F.R. S 50.109(a)(2)-(4). See 52 Fed. Reg. at 34,224-25. OCRE may not exploit the presen_t_

rulemaking, which was directly precipitated only by the narrow holding of the D.C. Circuit, to raise an issue that should have been raised in the earlier judicial proceedings. Thus the Commission should reject the proposed revision to 10 C.F.R.

§ 50.109(a)(l) because it is untimely.~/

In any event the Commission should reject that proposed revision because its supporting argument is incorrect as a matter of law. OCRE argues that "[a]ny regulation is part of the standard of 'adequate protection', as compliance therewith is mandatory and is a condition of licensing." OCRE Comments at 1 (citation omitted). However, as the D.C. Circuit has stated, under the Commission's basic rulemaking authority in Section 161 of the Act, "the Commission may order plants to provide 'extra-adequate' protection . . " Union of Concerned Scientists v.

Nuclear Regulatory Commission, 824 F.2d 108, 118 (Aug. 4, 1987).

See 52 Fed. Reg. at 34,223. The NRC itself argued this position 111its brief on the appeal of the backfitting rule:

Section 182 does not exhaust the Commission's authority to impose safety conditions on licensed reactors. The Commission is also separately empowered under section 161i to issue "such regulations or orders as it may deem necessary" in governing regulated activity "in order to protect health and to minimize dan er to life and ro ert ."

42 u.s.c. § 0 (1 emp asis supp ie ).

Accordingly, even when a facility meets the "adequate protection" standard of Section 182, the Commission may, as "it . . . deem[s]

necessary," still impose facility backfits in the interest of minimizing risk.

ucs v. NRC, Brief for Respondents at 5. Thus, as both the D.C.

Circuit and the NRC have stated, not all NRC regulations are considered necessary to meet the adequate protection standard.

For example, a modification to 10 C.F.R. § 50.71 (maintenance of records, making of reports) would not inevitably and unavoidably implicate the adequate protection standard. There is no basis

~/ If OCRE wishes to pursue this issue now, it may propose its revision to the definition of backfitting in a petition for rulemaking filed pursuant to 10 C.F.R. § 2.802.

Mr. Samuel J. Chilk November 13, 1987 Page 3 for OCRE's argument, therefore, that "[m]aking any changes to any regulation or adding or deleting any regulation is 'determining the content of the adequate protection standard' . . . . " OCRE Comments at 1.

For the foregoing reasons, NUBARG believes that the Commission should reject the revision to 10 C.F.R. § 50.109(a)(l) proposed by OCRE in its September 24 comments. NUBARG appreciates the opportunity to submit thes ply comments.

Nichol Bishop,

& Re o d 1200 Seven enth Street, N.W.

Washington, D.C. 20036 Counsel to Nuclear Utility Backfitting and Reform Group

Buyers Up Congress Watch D Critical Mass D Health Research Group D Litigation '81uP~ 1J :J J Secretary u.s. Nuclear Regulatory Commission Attn: Docketing and Service Branch Washington, D.C. 20555

Dear Sir/Madam:

We are writing to comment on the Nuclear Regulatory Commission's proposed rule, "Revision of Backfitting Process for Power Reactors,"

- which was published in the September 10, 1987 Federal Register.

We would like to begin by noting that the thirty days allowed for public comment is unreasonable and insufficient. This is a subject which has been the focus of broad public debate for several years and, more recently, a lengthy and complicated court challenge. Given the potential ramifications for both public safety and the financial viability of the nuclear industry, a longer public comment period is clearly warranted.

Consequently, although the official comment period on this proposed rule ended on October 13, 1987, we request that the comment period be extended by at least thirty days and preferably by sixty days.

Regarding the substance of the proposed rule, we believe that the rule suffers from the same general defects which plagued its predecessor and which recently prompted the u.s. Court of Appeals to strike it down.

As we have noted in past comments on this issue and as the u.s.

Court of Appeals recently confirmed, the Atomic Energy Act prohibits consideration of costs when reviewing backfits needed to ensure the adequate protection of public health and safety. Considerations of cost are permissable, if at all, only when a proposed backfit provides safety improvements beyond those necessary for "adequate protection."

However, the proposed rule is vague and lacks clear, objective criteria to guide the NRC on when it may take economic considerations into account in determining whether certain backfits may be mandated.

As now proposed, the rule would still allow the NRC to use a cost-benefit test when assessing proposed backfits.

For example, according to the proposal, cost-benefit analysis is not required in cases 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 adequate."

However, no method is provided to determine whether or not any 215 Pennsylvania Ave. SE Washington, DC 20003 (202) 546-4996

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particular backfit involves "defining or redefining" adequate safety

-- so there is no objective way to know whether it fits within the exception (no cost-benefit analysis) or the rule (cost-benefit justification required).

As such, the proposed rule creates a loophole large enough to enable the NRC to justify consideration of cost issues in most proposed backfits. This may be desirable from the point of view of the nuclear industry. However, it is totally inconsistent with the language and intent of the Atomic Energy Act as well as with the decision of the U.S. Court of Appeals. Moreover, it sacrifices public health and safety at considerable risk for the sake of limited financial gains for the nuclear industry.

We consequently believe that the proposed rule should be withdrawn.

In its place, a new rule should be proposed which spells out very clear guidelines for when costs may be considered in backfit decisions. Such a rule should be worded in such a way such that there is a strong presumption that economic considerations will not be factored into a backfit decision. Cost considerations should be allowed only when the proponent of such an analysis has met a substantial burden of proof that a proposed backfit exceeds a standard of safety needed to ensure at least "adequate protection."

Further, we believe that the "Manual Chapter" which will provide the NRC staff with guidance for implementing the backfit rule should be made available for public comment before it is reissued. Merely making the document available for "public inspection" is unsatis-factory -- inasmuch as the earlier version contained numerous defects.

For example, the earlier version gave licensees the right to appeal backfit decisions without also giving the public notice or the right to participate in the appeal process.

We hope that you give these comments serious consideration.

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TENNESSEE VALLEY AUTHORITY (5"2 F,R,~422~

CHATTANOOGA, TENNESSEE 37401 IIC:KEiED USNrtC SN 157B Lookout Place 08T 191987 ~ IET 21 11 SO Secretary IFF!CE:_OF SECFit.TAiO' U.S. Nuclear Regulatory Commission NClff I ING 4 SEltVtCf Attn: Docketing and Service Branch lftANCH .

Washington, D.C. 20555 Gentlemen:

REQUEST FOR COMMENTS ON PROPOSED REVISION TO 10 CFR 50.109 BACK.FITTING The Tennessee Valley Authority (TVA) has reviewed the subject document as requested and has the following comments:

The main emphasis of the proposed rule is that the Commission must ensure that the facility provides adequate protection to the health and safety of the public. The proposed wording allows NRC staff to impose changes to a facility without a backfit analysis if they believe the modification (or other action) is necessary to ensure adequate protection. If the Commission has granted a facility operating license (implying that the facility is adequate at the time of the license), then a certain level of safety has already been assured. Any additional required modification (or other action) should then be subject to a backfit analysis unless the Commission (not the staff) determines that such backfits are required to provide adequate protection.

TVA believes that it would be more reasonable to apply the backfit criteria to all modifications (or other actions) required by NRC beyond the initial licensing basis of the plant unless the Commission determines that such backfits are generically required to assure adequate protection at all plants.

Section 50.109, (a)(4), items (ii) and (iii) are very generally worded and could be interpreted to cover any change that the NRC staff may wish to impose. We recommend that backfits authorized in accordance with these criteria be approved by the NRC Commissioners and not by the staff alone. The whole purpose of the backfit rule is to eliminate or reduce actions being required by the staff without direction from the Commissioners.

TVA appreciates the opportunity to comment on the proposed revision to the backfit rule.

Very truly yours, LEY AUTHORITY R. Gridley, irector Nuclear Lie sing and Regulatory Affairs

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U.S. Nuclear Regulatory Commission 0 T 191987 cc: Mr. G. G. Zech, Assistant Director Regional Inspections Division of TVA Projects Office of Special Projects U.S. Nuclear Regulatory Commission Region II 101 Marietta street, NW, Suite 2900 Atlanta, Georgia 30323 Hr. J. A. Zwolinski, Assistant Director for Projects Division of TVA Projects Office of Special Projects U.S. Nuclear Regulatory Commission 4350 East- West Highway EWW 322 Bethesda, Maryland 20814 Bellefonte Resident Inspector Bellefonte Nuclear Plant P . O. Box 2000 Hollywood, Alabama 35752 Browns Ferry Resident Inspector Browns Ferry Nuclear Plant Route 2, P.O. Box 311 Athen, Alabama 35611 Sequoyah Resident Inspector Sequoyah Nuclear Plant 2600 Igou Ferry Road Soddy Daisy, Tennessee 37379 Watts Bar Resident Inspector Watts Bar Nuclear Plant P.O. Box 700 Spring City, Tennessee 37381

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{ ~~ F~ J 4,,t4 J Consolidated Edison Company of New York, Inc.

lt(;t(tTEO Indian Point Station USNRC Broadway & Bleakley Avenue Buchanan, NY 10511 Telephone (914) 737-8116 October 9, 19~ a 20 P2~

Re: Indian Point_,_,.~~

Do cket Nos. 5 Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555 Attention: Docketing & Service Branch

SUBJECT:

Proposed Rule: Revision of Backfitting Process for Power Reactors, 52 Fed. Reg. 34224 (September 10, 1987)

Consolidated Edison Company of New York, Inc hereby submits comments on the referenced proposed rule relating to a revision of 10 CFR 50.109 backfitting standards and procedures.

We believe the proposed rule is generally consistent with and adequately meets the concerns expressed in the decision of the United States Court of Appeals for the District of Columbia Circuit in Union of Concerned Scientists v. NRC, No. 85-1757 and 86-1219 (D.C. Cir . , August 4, 1987) .

Accordingly, we recommend that the proposed rule be adopted as final b y the Commission with certain clarifications noted below.

These clarifications pertain to the circumstances under which an exception to the backfitting process will apply and, in particular, the redundancy of proposed Section 50 .109 (a) (4) (ii) and the standards pursuant to which "adequate-protection" may be redefined i n Section 50.109 (a) (4) (iii). A detailed discussion of the need for such clarification and proposed language to effect these changes is set forth in the comments o n the proposed rule submitted by the Nuclear Utility Backfitting and Reform Group

("NUBARG"). We support the desirability for such clarification and consequently endorse the NUBARG comments.

Very truly y o u r s ~

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,a C£T t9 P2:29 l=P OCTOBER 1 6 1987 L-87-420 Mr. Samuel J. Chilk, Secretary U. S. Nuclear Regulatory Commission At tn: Docketing and Service Branch 1717 H Street, N. W., Room 1121 Washington, DC 20555 Re: Revision of Backfitting Process For Power Reactors

Dear Mr. Chilk:

Florida Power & Light Company (FPL) hereby submits these comments in response to the Commissions request for comments for its consideration of a rule amendment regarding backfitting of nuclear power plants. (52 Fed. Reg. No.

175.) FPL would like to comment that in a (4) (iii) the remainder of the paragraph beginning with "such documented evaluation" (line 6 of (iii)) should not be printed with (iii) but as a separate paragraph to show that "such documented evaluation .** "

applies to (i) and (iii) as well as (iii). The existing rule is structured in this manner.

Thank you for the opportunity to comment

• Very truly yours, L\ _Cf) .(?a&u~ ~-

.\£\~- o:Woody Group Vice President Nuclear Energy COW/JPB/gc JPB I /049 /I

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u. S. NUCLEAR REGUlATOltY COMMlSSI08 DOCKETING & SERVtCE SECT ION OFFICE OF THE SECRETARY Of TH~ COMMISSION Po"m"l D,1~ccne~~J'j-_7___

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1616 P Street, N.W., Suite 160, Washington, D.C. 20036 (202) 328-0002 IICKt-tlN.Gd.i'{i~!O[

October 16, 1987 *~~~

Secretary US Nuclear Regulatory Commission Washington, DC 20555 ATTN: Docketing and Service Branch

Dear Mr. Chilk,

Enclosed are the comments of the Nuclear Information and Resource Service on the NRC's proposed revision to the backfit rule.

Though the comment period expired three days ago, we hope you will consider our remarks.

Thank you very much.

Sincerely, 1

~ Murphy 1

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Nuclear Information and Resource service 1616 P Street, N.W., Suite 160, Washington, D.C. 20036 (202) 328-0002 October 16, 1987 COMMENTS OF THE NUCLEAR INFORMATION AND RESOURCE SERVICE ON THE NUCLEAR REGULATORY COMMISSION'S REVISION OF BACKFITTING PROCESS FOR POWER REACTORS (10 CFR 50.109, 52 FR 34223 SEPTEMBER 10, 1987).

NRC's lack of understanding of the Appeals Court decision to vacate the backfit rule is astounding. The one criticism the Commission does acknowlege--that the rule is vague and ambiguous--is only amplified in the Commission's latest proposal.

The proposed revision pays lip service to correcting this defect, and completely ignores the Court's underlying message that the rule was purposefully vague to allow for subjective interpretations when requiring backfit analyses.

The supplementary information provided in the Federal Register to the proposal (52 FR 34223) demonstrates the Commission's lack of understanding of the Court's decision and its ramifications. In the Federal Register notice, the Commission states:

"Because the Court's opinion regarding the circumstances 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, the Commission will not appeal the decision."

Clearly the Court's interpretation of the backfit rule does not conform to the Commission's, otherwise the Court would not have vaca t ed the rule. Indeed, as justification for disallowing the rule, the Court cites the NRC's belief that "if the Commission were to consider changing the meaning of

'no undue risk' *** the Commission would determine whether the costs to licensees of adapting to such a new standard would be justified by the benefits for public health and safety."

In other words, the Commission would consider economic impacts to its licensees, even when reassessing its own definition of what constitutes adequate protection for the public. In response, the Court states:

"This statement unequivocally shows that the Commission understands its own rule to allow the consideration of costs in the establishment of the adequate-protection standard. we

2 already have held that such consideration is forbidden by the statute. Hence, the Commission's own construction of the backfitting rule conflicts with the Act by injecting cost considerations into the very core of the adequate-protection standard." (at 24)

The Commission concedes only this point in its revised backfit rule by including the redefinition of adequate protection in its list of exceptions to the rule. The revised rule now states that "In defining, redefining or enforcing this statutory standard of adequate protection, the Commission will not consider economic costs" (52 FR 34233). The revised rule fails on all other counts.

The Commission intends for the new rule to "conform unambiguously to the Court's decision." In so doing, the NRC has set out its "safety principle" by which to interpret and use the backfit rule. This safety principle does not accomplish what the NRC states.

The proposed "revision" to the backfit rule completely skirts the issue of ambiguity and vagueness by not clarifying the central issue of "adequate protection." The revision makes no attempt to define "adequate protection," merely stating that cost may be considered in all cases except when meeting the adequate protection standard. The NRC offers no examples or criteria to determine what constitutes adequate protection. For cases where adequate protection is not being met, an analysis is not needed.

(This shows how often the NRC thinks it may need to invoke these exceptions, for how would one know a measure falls into the exception category except through an analysis?) A rule containing such a fundamental loophole falls far short of meeting the Court's intent.

Additionally, for those instances where an analysis has shown that a backfit is required, it is not clear whether the improvement actually will be instituted. The rule states that a "substantial" increase in overall protection should be achieved by a backfit, ambiguously leaving the ultimate decision to implement a backfit up to the Commission or staff. Again, the Court's concerns have not been allayed.

Clearly, the NRC missed the thrust of the U.S. Court of Appeals decision to vacate the backfit rule, a decision based not only on the Commission's peculiar interpretation of the statutes, but on the purposefully vague wording adopted by the NRC. The Court states:

3 "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 Commission designed the rule to achieve this very result."

The proposed revision perpetuates the Commission's lack of concrete guidance for which it was criticized in a recent Government Accounting Office study. The GAO reported:

"The Atomic Energy Act allows NRC to order a utility to cease plant operations when NRC does not have reasonable assurance the plant can operate safely. However, NRC lacks guidelines to determine when to shut a plant down. In fact, in congressional hearings, NRC's commissioners could not agree on the specific types of problems that could pose undue public health and safety risk such that NRC would implement its statutory authority and shut a plant down.

Further, in the few instances where NRC has ordered a shutdown, it did not take the same action earlier or for other plants even though a basis seemed to exist for NRC to do so." (Efforts to Ensure Nuclear Power Plant Safety Can B~

Strengthened, GAO, August 1987, p.30)

Clearly, even among the NRC and its staff, the meaning of adequate protection is not fully understood--a situation which could lead to a lack of even-handedness in dealing with licensees e and no real assurance of safety for the public.

Though NRC has not defined adequate protection, the language of the prosed revision leads one to believe the NRC has concluded current plants are safe enough and that any future modifications would have to pass both a cost-benefit analysis and the NRC's vague criteria of "substantial increase in overall protection."

NRC defines backfit as "measures *** to improve the safety of nuclear power reactors, and which reflect a change in prior Comm i ssion or staff position on the safety matter in question."

(52 FR 34233) (empahsis added). From this, one might infer that all plants are currently at the adequate protection level, desp i te known problems, such as variances in design safety, i.e.

GE plants, ice condenser containments. No reasoning is available to support this position.

The large number of unresolved safety issues leads one to question both what the NRC considers safe to operate as well as its ability to regulate nuclear reactors for the public health and safety. The GAO also criticized the NRC for allowing a

4 backlog of generic safety issues to exist for great lengths of time. GAO found that:

"NRC may take from several months to 10 or more years to resolve (identify and approve a solution for) generic issues, including those NRC believes pose the highest safety risk. As of December 1986, NRC had a backlog of 163 unresolved generic issues, including 32 considered to pose a significant risk to public health and safety *** The longer these issues remain open, the less assurance NRC has that safety standards are up to date and the plants are operating safely." (GAO report, p.3-4)

Obviously, any one of these issues could be serious enough to threaten the public health and safety. Through studies to find solutions to these problems, the NRC may discover some problems are more serious than earlier believed, and may require immediate changes. These long-neglected safety issues would be resolved much faster if the alternative were plant shutdown. Instead, the NRC is tying its own hands by requiring backfit analyses.

NIRS RECOMMENDATIONS NRC must face the issue of defining adequate protection squarely if it wishes to continue requiring a backfit rule. we believe the NRC cannot certify current reactors as providing "adequate protection" without adequately resolving all outstanding safety issues.

While the Court found that the NRC had the statutory right to consider cost in backfits that go beyond adequate protection, it did not find that cost must be a factor in such an evaluation.

The NRC is significantly restricting its regulatory ability by requiring these analyses. The cost-benefit analysis should only be an option available to the Commission, not a self-imposed requirement. A licensee or licensees should be able to request the Commission perform such an analysis and similarly, the public should have the right to appeal its use.

123 Main Street White Plains, New York 10601 914 681.6240

, . NewVorkPower John C. Brons

. , Authority "87 (ET 19 Pl2 :03 Executive Vice President Nuclear Generation October 15 , 1987 JPN-87-0 53 I PN-87-047 Secretary, U. S. Nuclear Regulatory Commiss i on Attn. Docketing and Service Branch Washington, D. C. 20555

Subject:

James A. FitzPatrick Nuclear Power Plant Docket No. 50-333 Indian Point 3 Nuclear Power Plant Docket No. 50-286 Comments on Proposed Rule Revising the Backfitting Process for Power Reactors

References:

1. Federal Register Notice, 52FR34223, "Nuclear Regulatory Commission," 10 CFR Part 50, Revision of Backfitting Process for Power Reactors," Vol. 52, No. 175, dated September 10, 1987.

Dear Sir:

The Authority has reviewed the proposed rule for revising backfitting process for nuclear power plants (Reference 1). The Authority supports the revised rule and recommends that the Commission adopt it with two minor al t erations.

First, the new exception in Section 50.109(a) (4) (ii) should be revised to clearly state the conditions under which backfitting is necessary to assure "adequate protection." In the original Statement of Considerations, the Commission stated that once a plant has been licensed for operation, it is presumed to be safe. The revised

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Statement of Considerations should be restated. It should be expanded to state that exception (ii) applies when significant new information or the occurence of an event demonstrate that the the plant no longer provides adequate protection. An NRC backfit analysis, demonstrating that adequate protection cannot be assured without the backfit, should also be prescribed by the Statement of Considerations.

Second, the exception in Section 50.109{a) (4) (iii) wh i ch defines or redefines an adequate level of protection is redundant in light of the exception in Section (ii). New information or events that demonstrate inadequate protection are themselves a redefinition of adequate protection.

Section (iii) should be deleted because Section (ii) more closely defines the reason for valid exceptions.

The Nuclear Utility Backfitting and Reform Group (NUBARG) is commenting on the proposed rule on behalf of its membership, including the Power Authority. Since the comments provided in this letter are very similar to NUBARG's, the Power Authority endorses those comments.

If the NRC staff has any questions concerning these comments, please contact Mr. J. A. Gray, Jr. of my staff.

Very truly yours,

~

ohn C. Brans xecutive Vice President uclear Generation cc: U. s. Nuclear Regulatory Commission 631 Park Avenue King of Prussia, Pennsylvania 19406 Office of the Resident Inspector

u. s. Nuclear Regulatory Commission P.O. Box 136 Lycoming, New York 13093 Resident Inspector's Office Indian Point Unit 3 U. s. Nuclear Regulatory Commission P. o. Box 377 Buchanan, New York 10511

Mr. H. Abelson, Project Manager Project Directorate I-1 Division of Reactor Projects - I/II U. S. Nuclear Regulatory Commission 7920 Norfolk Avenue Bethesda, Maryland 20014 Joseph D. Neighbors, Sr. Project Manager Project Directorate I-1 Division of Reactor Projects I/II U. S. Nuclear Regulatory Commission 7920 Norolk Avenue Bethesda, Maryland 20014

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Washington, D.C. 20555 Dear Mr. Secretary; Please accept the following letter as my comments on the revision of bac k fitting process f o r power reactors, 10 CFR Part 50 Proposed Rule.

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on the proposed backfit rule be included as comments on this revis:,ior,. This r*F::!Vi':~ion aqair1 i"E1ils to ,::1. dcl-,-f?S-s tht.-;,, same, problF2ms and omissions which I pointed out in the original proposed rule.

f'h.'ts r*<*?\l:isior,s:, h.:'is f2\lE!n mor<"~ pr*c:iblE*in~". l:.hc1n doE~s:, th<:::* pr*t'!Vici:. ts; proposed rule. ThJs new revision also incorporates all the previous problems and omissions pciinted out in my previous comments. Since t he previous p r oblems can be found i n my prior set of comments on the backfit rule, only new problems will be included in this set of comments. Again my previous comments are still applicable ,and I r~quest that my previous comments be included herein as comments on this revision.

T'he major problem with this sci called revision is that it j_gnor*e:-; t.:hf? dE~cision o*f th,-? cour*t. ThE,! c:our* t decided that: thE~

bac kf 'J. t ru 1 <:e ~,.11:~s=. ",::::n, E*>:E*mp l E1r c, *f amb 'l qui ty i:'H-,cl \/.:':1CJUF, ..,ess.

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a c:h t.:hE* Commi<::,.s:,:i.or1 i~,; ric,t cc,r1~;t";""i::1incd f*1'"D/'il opE:*rE1t.:inq outi;.;id1::2 of

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saying is that: the backfit rule is a non-rule, which allows the Commission to operate without restraint. The Comm i ssion is restrained by the Atomic Energy Act as Amrnded and by its own Charte1 * . lhis revision of the backfit rule as the previous pr* cq::rns.p,:i b;..:1ckfit n1lr::: t?liminc.*d;r~s*c* ,:::1ll f"f:?s.ti,,,,ir1t£.; on thr.:> Commis-~~,,ion!,

and is , thereby, in violation of the Atom'i.c Energy Act as Amended 21nr.J the N:::;;c Chc.=ir tc:r ,

• rh~? Fiupp 1 F::.*mE*n l;;:::1 *1*y I r1-for*mc1t .l or, c:, *n f-2,qe:, Jt.: i.~i.~::3 c,f th<::* F~dPl"i':I. .i Register of 10 Soptember 1987 suggests that the court based its

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case or decision . the decision is very specific in characterizing the 1"1 .1]0:-' c:\!':: 11 i'.*n C?:*::::mpli':\r* o*f ,',11T1biqu:i.t*:,,' and vaquE-:*nE*r.-::-~'::-. 11 The- E~nt:*1rE-:,

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If the NRC is truly of a mind tei sot ~ level of safety whlch i!:"j ad:::1~1..1at2 (HovJ ,n1 .1c:!*1 i<:"::. (~nour,.1h?) !' thE'il th<*? l'.lFC !::-hould F\ttc:*mpt.. to

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inherent assumptions abo1Jt how much safc-?ty is enough.

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,*ulE~s 1,;uc::h a~::; th£> bc:1ck1"it r*ule ~\thich *1-,"0quire thic.-~ int*ormc~tio*,--, ..

Bo th :i. ntt-:;.*r na l :i. ::-.~E*d i:-\l"ld E*>: tr-D*r*na 1 :i. ;.'.:?cf cc:, i;;,. t:£:; s.uch c:11,; pr1::-:m,::1 t1.1r**e deaths to t.:he public must be considered using the latest

""11.. f' () r- mr.'\ t :i. r.i n n W Finally, the rule must contain some real numbers and some real criteria. P1 ssent1y, this r1J].e seems to contain nothinq to constrain the Commission or licensees from decisions which will endanqE:r tl*H"": hei::\lth ci\nd ~-=-a*fEit*y' oi'* thEi public:.

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DOCKET NUMBER PROPOSED RULE PR ~a___ ~

0OCKETEr:

812 Yancey St. Du~MOOn NC 27701

( '5 2 ,:::~ ~ -fZ ~I:: , .1-.... 10-08-87 (919)-688-0076 Secretary,uSNRc* ~/YI,~!->

Attn. New "Backfit" Rulemaking 52 FR 34223, 9/10/87 W OCT 19 A7 :59 Washington, DC 20555

. . . . t FFI £ l'!; F 5;i;f,tJ ~ti.J This proposal is evidently based on a misunderstctffKll'W-H>?l' WiW=I&: the Court of Appeals held with respect to the former backfi t J&&~ 'ti which it struck down along with the associated Manual Chapter. Contrary to the statement in column 2 of 52 FR 34223, the Court 1filambiguously stated that the Commission may not consider economic costs either in determining what constitutes adequate protection of the public health and safety under the Atomic Energy Act, .Q.£ in ordering backfits necessary to assure such adequate protection as required by the Atomic Energy Act.

It is patently obvious that economic considerations were what led the Commission to adopt the backfit rule that the Court struck down.

It is equally obvious that the new proposed rule, because it does not define adequate protection of the public health and safety, cannot comply with the Court's clear holding, in at least two ways: First, since it

_ _-Mq_.o:....es not establish what is adequate protection of the public heal th and safety in terms of objective criteria determined without regard to economic cost, it fails to comply with the Court's requirement that

- economic cost cannot be considered, under the Atomic Energy Act, in determining what is adequate protection of the public health and safety.

Adequate protection must include limits on all radioactive releases including accidental and/or abnormal ones, as well as limits on the consequences and chances of accidents that may impair public health and safety or may damage either or both.

Second, the proposed rule fails to meet the requirement that cost not be considered in requiring backfits to assure an adequate level of protection for the public health and safety: since that adequate level is evidently left completely undefined, no objective analysis can show whether a backfit is necessary to s uch protection (and thus immune to cost considerations) or is, instead, an ag_g.Jtional increment of protection which the Court allowed could be subject to economic cost considerations.

Also, the very form of the rule is left unchanged, i.e. 50.109(a)(3) s till states that the Commission shall re quire the backfi tting of a (nuclear) f acility only when it determines, based on the analysis described in paragraph (c) of this section, _that there is a substqn tial increase

• , in the overall protection of the public health and safety or the common defense and security *.. Thus, the focus is still on banning backfi ts.

The exception in paragraph ( a )(4) as drafted, 52 FR, 34224 col. 3, requires proof that the modification is necessary for adequate protection, rather than leaving the burden of proof on the licensee to show that it is not necessary or required for the adequate protection of public health and safety, and/or for the common defense and security of the United States.

Thus the evident original intent to eliminate backfits, which intent was caused by economic pressure from the nuclear industry, remains virtually intact. A rule so vague, where the Court's holding is made the exception rather than the rule, is not only tortured and foolish. It is so vague that compliance with the Court's holding cannot be assessed in most cases.

That is evidently the Commission's intent with this new" "rule".

The Commission likewise denies public notice and comment on its revised Manual Chapter that guides NRG Staff on implementing the rul_e , even though the Commission admits, 52 FR 34223, col.2, that the Court struck down the Manual Chapter. I assert my right, and the public's, to notice and comment on the Manual Chapter itself, as well as % le proposed,

,We ~ e' m

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n 812 Yancey St.

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5. NUCLEAR REGULATORY COMMISSIOhl OOCKETlt-lG & SE"VICE SECTION

1907 Stratford Lane l£T 19 A9 :27 Rockford, IL 61107 October 11, 1987 Secretary U.S. Nuclear Regulatory Com mis s ion Washington, D.C. 20555 Attn: Docketing and Ser vice Bra nch re: Proposed Rule, NRC 10 CFR Pc1rt 50 Revision of Backfitting Process for Power Reactors Federal Register, Vol. 52 , !'o 175 , Sep t em ber 10, 1987 This proposed rule f ai l s "t o bring the b ackf it rule into un-ambiguous conformance " wi t!t the Aug . 4, 1987 ruling that the the Atomi~ Energy Act doc s no t permit NRC to consider economic cost wher,determining wh::it is ncccss~ ry to protect the publ ic health and safety or in enforcing suc h standards in individual cases.

The new rule says th at eco no mic cos ts will be considered only when addressing those ba ckfits be yo nd public health and safetx,'

but it sets out no guidelin is of objec tiv e criteria on how to know whether a backfit und er considera tion is needed to ensure adequate safety or constitut es go i n g beyond adequate safety.

It also lacks guidance on h o1v the Com mission will treat cases falling within the exception.

The new version of th e Manual Chap ter that NRC i nten<ls to issue should include public notic eand th e right to participate in *the-

• appe~l *proc~s~ wh e n licen cecs ap pc ;1l backfit decisions. The public should also have the ri ght _ to comme nt on the new Manual Chapt~r.

(Mrs. P

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U.S. NUCLE~R -~fGULATORY'C0~t'SSfoN DC>OGff~ *~ ~ERYIG 'SOC'FrfON ,

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• ' 'ff( ' ' r,r ff Vier wyahoga County Concerned Citizens would like to state our objections to your pro~ '"backfit rule. Although the Camrission states that this new proposed rule clarifies your practices in deternrining whether to adopt a backfit requirerent. We understand that you propose to require a backfit and consider econanic costs only when these backfits go beyond ensuring the protection of public health and safety. Apparently you are proposing that cost-bebefit analysis not be required where "the regulatory action involves defining or redefining what level of protection to the public health and safety or cannon defense and security should be regarded as adequate."

We of course, object to any staterent that the current or proposed protection of our health and safety is anywhere near adequate.

We object to this proposal because absolutely no guidelines are established by your new rule proposal. No objective criteria have been established or suggested and no examples given.

Exactly how will any backfit under consideration be detennined as needed or unneeded and whether econanic costs will be considered as adequate to ensure public and health and safety or going beyond the adequate protection of public health and safety. Guidelines that are specific should be given so that these questions can be answered after analysis of the individual consideration and not before examination. We would 1:ike to be able to have the criteria exactly known if any proposed backfit is exanpt fran cost-benefit analysis or if the cost-benefit justificati on must be required. The proposed rule is too general. fvbre exact guidelines msut be established.

Concerned Citizens must also our objections to the proposed MIDual Oiapter" for your staff.

Merely issuing the llinual Oiapter and naking it available for public inspection does not provide adequate or any opportunity for the nr.uh needed public input. We would like to see the final version and be given an opportunity to carrnent on the Mmual Oiapter before it is re-proposed.

Please register our canplaints and consider working these stated defiencies of this new rule.

Thank you.

Sincerely, wyahoga County Concerned Citizens 14400 Payes Avenue Lakewood, Clrio 44107 Orris *Trepal, signing

U.S. NUCLEAR REGULATORY COMMISSIOO DOCKETING & SERVICE SECTION OFFICE OF THE srcRET ARY OF THE C(J/.'r'*',::s:oN Postm i:irk

DOCKET NUMBER R PROPOS D RULE . - 0 7) 52 p=,e ..5 "l~/b3 '

BALTIMORE GAS AND lt(;J{(TED ELECTRIC USNftC CHARLES CENTER* P. 0 . BOX 1475

• BALTIMORE, MARYLAND 21203 W IET

• 16 P2S5 JOSEPH A . TIERNAN VICE PRESIDEN T NUCLEA R ENER GY October 13, 1987 U. S. Nuclear Regulatory Commission Washington, DC 20555 ATTENTION: Docketing and Service Branch

SUBJECT:

Calvert Cliffs Nuclear Power Plant Unit Nos. 1 & 2; Docket Nos. 50-317 & 50-318 Revision of Backfitting Process for Power Reactors Gentlemen:

The following comments are submitted by the Baltimore Gas and Electric Company in response to Federal Register Notice 52 FR 34223, dated September 10, 1987. This notice provided a proposed change to the Backfitting Section of 10 CFR Part 50.

We have reviewed the proposed revision and it appears to adequately conform Section 50.109 to the U. S. Court of Appeals (DC Circuit) decision in Union of Concerned Scientists v. NRC, Nos. 85-1757 and 86-1219, August 4, 1987. The Court concluded that the NRC may consider economic costs in determining whether to order backfits which provide safety improvements beyond the minimum needed for adequate protection of public health and safety. However, the Court was concerned that the vacated rule and Statements of Consideration did not clearly state the Commission's position regarding consideration of economic costs in imposing new or modified interpretations of what is necessary for adequate protection. The proposed revision serves to clarify the Commission's position that, in determining whether to adopt a backfit requirement, economic costs will be considered only when addressing backfits involving safety requirements beyond those needed to ensure the adequate protection of public health and safety. The Court has agreed with the Commission that, once an adequate level of safety protection has been achieved under Section 182 of the Atomic Energy Act, the Commission is authorized to consider and take economic costs into account in ordering further safety improvements.

Two changes to the proposed rule are recommended which would serve to further clarify the Backfitting Section and preserve the overall intent of the backfit rule. The first recommendation is to delete the exception in subsection 50.109(a)( 4)(ii). There are two basic situations in which an exception to the backfitting rule should apply:

first , where a plant falls below the existing baseline level of adequate protection and must be restored to that level; and second, where the Commission, with a rational supporting basis, finds that the existing baseline level of adequate protection must be raised. As to the first situation, the existing baseline of adequate protection is I **

I U.S. NUCLEAR REGUL.A.TO~Y COMMISStO~

DOCKETING & SE~VICE SECTION OFFICE OF THE SEC!lET,\:'Y OF T! :E CC!~',\\S.'.,iC,N D .... ,,.,.lr-". _,

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Docketing and Service Branch October 13, 1987 Page 2 established by the current regulatory requirements and licensing basis applicable to the facility, applicable rules and orders of the Commission based upon which the facility was licensed, and binding licensee commitments. The second situation, in general, should only arise if significant new information comes to light or an event occurs which demonstrates that the existing baseline is no longer acceptable.

Therefore, the "adequate protection" exception in subsection 50.109(a)(4)(ii) of the proposed rule appears to be redundant to subsections 50.109(a)(4)(i) and (iii).

The second recommendation is to shift footnote 3, regarding documented evaluations of regulatory action, to the end of 50.109(a)(4), since these documented evaluations should apply to all exceptions. In addition, words should be added to the footnote which state that the documented evaluation shall address the appropriate factors, excluding economic costs, prescribed in subsection 50.109(c) for documenting backfit analyses.

In addition to the above changes, the exception provided in subsection 50.109(a)(4)(iii) should be clarified in the Statements of Consideration. This exception should apply only where regulatory action is necessary as a result of significant new information or the occurrence of an event which clearly demonstrates that the existing baseline standard is inadequate without the proposed modification.

This follows from the presumption of safety that applies to plants that have been licensed after detailed NRC review and upon the definitive finding of safety required by the Atomic Energy Act.

In conclusion, the proposed rule, with the changes discussed above, should be adopted expeditiously. We have reviewed, and are in general accord with, the comments of the Nuclear Utility Backfitting and Reform Group.

Should you have any questions regarding this matter, we will be pleased to discuss them with you.

Very truly yours, JAT/LSL/dlm cc: D. A. Brune, Esquire J. E. Silberg, Esquire R. A. Capra, NRC S. A. McNeil, NRC W. T. Russell, NRC T. Foley /D. C. Trimble, NRC

Westinghouse Power Systems 'l'I CET 16 P2 :to Nuclear Technology Systems Division Electric Corporation Box 355 Pittsburgh Pennsylvania 15230-0355 October 12, 1987 NS-NRC-87-3274 Mr. Samuel J. Chilk Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: fucketing and Service Branch

Subject:

Proposed Rule: Revision of Backfitting Process for Power Reactors, 53 Fed. Reg. 34224, September 10, 1987

Dear Mr . Chilk:

Westinghouse has reviewed the Nuclear Regulatory Commission's proposed "Revision of Backfitting Process for Power Reactors" and believes that it adequately conforms to the U.S. Court of Appeals for the district of Columbia Circuit in Union of Concerned Scientists v. Nuclear Regulatory Commission, Nos. 85-1757 and 86-1219 (D.C. Circuit, August 4, 1987),

However, we agree with the recommendation of the Nuclear Utility Backfitting and Reform Group (NUBARG) to modify and clarify the exceptions to the backfit rule, Subparagraphs (i), (ii), and (iii) of Section 50.109(a)(4), to avoid confusion as to their applicability and to properly distinguish "backfits" from those "modifications" and "regulatory actions" implemented under the exceptions.

Westinghouse believes that the changes recommended by NUBARG are necessary for effective implementation of the much needed systematic and documented approach to evaluating proposed modifications prior to imposing them to licensees. Westinghouse, therefore, respectfully requests that the Commission incorporate the NUBARG recommendations in the rule as proposed and issue it as a final rule without further delay.

Very truly yours,

. Johnson, Manager fety Department RAW:hs

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0 on the revision of backfitting process for power reactors, 10 CFR Part 50 Proposed Rule, dated 10 Sept .. 87 ..

I have submittEd comments previously on this rule on 10 87 ..

"~ pr<-::iv:i.c-..t..1:::., _cc,m'.nf::!i'1t~-; 1,,_1E~1-*e hc:1~::-t:i.ly ~\1r*'t.ttr,!r1 r::1nd di-fficult to

• jerstand .. lhese comments do not disagree with my previous c:c,mmr:,r, l': :::- , :::ind ,*,11.. f.,~ ':c,ubm it t !*=.*d i:':'1S-, E:1 c J i:':1r :i. *f i c i-::i ti or, ,:1*1*'td E! 1 i:,1bor* r.:1 tic, *n ..

0 My Principle objection.

fhe revision does not address or correct any of the problems in the backfit rule .. I eubmitted comments to the backfit rule for the F Eid(*.:'.*1' 3 .l Hec:i :L :.-,. t; (-'.:*'/' t,!D ti C C:/f.:;, 0 r SE*p * :::_;3 :1 EL3 :> ::< nd !-1(:, / . :.::;,o :1 Bl1-" I ii bc:,th comrr:ci ..,t:s:1 1 i*lc:it:c*d thE? lac::!-:: c:c*f r<~.quJ;,~tic,,i v;l*'tic:h tl-,E c,iml::,:'1qu:*1t..y

.:~;,d 1-::\.:'. <.-.:'11fo *, *t:E:*ff!i:,)11t: i,i th.'! r:n-c:;pos~-=:!,j ,-ulf2 v,1er11.lci .0\J..l.01.-,_1 .. Thi:::*, ;;;;t;.;,,ff

.:"nd I\Jr:::c :.n:,uJd h;"-,_\/F:: tc, mf.::>et vE-:*r"\/ hi<Jh bUt'"dE*r*1s to r*E:'qui.r*E~ t.h;,:;t "~

nuc:lci::\i. pc,t.-,ipr- pJ.,:::int r-1E=:*r?d<.=,. bac::kfi.t.:tinq .. The~ ~~taff ;",nd th<::i I\IFiL would have to perform a cost benefit analysis to prove that the 21dd~2cl s;,:::1*f E,!t y 1.-Jou 1 cl iTl!'~<-,?t thF! c: ""P'f" i c: i ou<s b1.1r dPn c,f co~::-t i nq l l?':::-s.:;

than $1,000 per man rem to install ..

The Court of AppPals in D . C .. agreed with my analysis on A <;1u~:-t ~:_;, l9l:l/., ThE'* Court h1::.cld -!:.:hat thi:,, P,tc,mi.c t::r1pr*9y (1c:t de<i,,~;

~ t permit the NRC to consider economic cost to provide adequate

~afety to the public ..

Th E.' pr c,h 1 E'2rr: no t,\t i ~; to cl f2t* inc,* 11 ad ,~qu i:',1 t E> ~::,.a*f r:2 t y

• 11 This dt?fini tic,n o*f "hr:,vJ much si:':\*fi::.,*ty :i.~:_:. E?ne<uqh?" s;.hc:,uld bC,:! thE*! i;;ubjf:?c:t of ru.le making .. Att;empting to promulgate a new bac~fit rLtlP,

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Georgia Power Company 333 Piedmont Avenue Atlanta, Georgia 30308 Telephone 404 526-6526 Mailing Address:

Post Office Box 4545 Atlanta, Georgia 30302 Georgia Power L. T. Gucwa

'87 fET 15 All :30 th southern electnc system Manager Nuc lear Safety and Licensing SL-3316 0497U X7GJ17-C220 October 7, 1987 Secretary of the Commission U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Attn: Docketing and Services Branch GEORGIA POWER COMPANY COMMENTS ON PROPOSED RULEMAKING REGARDING REVISION OF BACKFITTING PROCESS FOR POWER REACTORS

Dear Mr . Chilk:

On September 10, 1987, the Nuclear Regulatory Commission (NRC) published in the Federal Register and solicited comments on a proposed cl arifi cation of the backfi t process for power reactors . Georgi a Power Company (GPC) appreciates the opportunity to comment on the NRC's proposed revision to Title 10 CFR 50.109 and pending revision of The NRC Manual Chapter 0514 .

We support the prompt rewrite of the backfi t rule and the Commission's interim actions as a result of the D. C. Circuit Court decision of August 4, 1987. GPC agrees that the backfit rule never intended to apply economic justification to the initial imposition of reasonable requirements to assure the overall protection of the public health and safety . In addition, GPC advocates that a mechanism be included to utilize analyses prior to the introduction of requirements which may be desirable but are beyond those which are necessary. Also, we find the inclusion of the wording in Footnote 3, recognizing that different licensees may adopt different solutions to an identical problem, a particularly desirable improvement in the regulation . In short, we believe the proposed rule should be expeditiously adopted with the following reservations:

Section 50. 109(a)(4)(ii) carries with it the presumption that a plant was originally licensed under an umbrella of "adequate safety".

Therefore, the invocation of this exemption from the rule demands the discovery of significant additional information which clearly demonstrates the lack of adequate safety in the existing design . The

J. S. NUCLEAR REGULATORY COMMISSIOS 0OCKEH-JG & SFRVICE SECTION O FFn= CF T' r S((? i:T\RY Cc;,1,.

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Georgia Power , \

U. S. Nuclear Regulatory Commission October 7, 1987 Page Two Statement of Consideration should state that the NRC wi 11 conduct a thorough a priori analysis demonstrating how and why adequate protection could not be met without the backfit.

The application of the exemption from the rule, 10 CFR 50 . 109(a)(4)(iii), for "defining or redefining what level of protection ... should be regarded as adequate", is confusing when viewed in the context of the rest of the proposed rule. We can think of no application for this exemption that could not be covered under Section 50.109(a)(4)(ii). Additionally, this Section could be subject to various potentially conflicting or escalating interpretations as to the "definition" of an "adequate level of protection." We recognize that a specific defi ni ti on of "adequate level of protection", while within the statutory purview of the NRC to determine, is not an easily defined term. Therefore, we suggest that the final rule delineate the specific mechanism or procedure by which the NRC will implement this exclusion. The NRC Manual is normally the location of the discussion relative to the implementational enforcement of NRC policy. A more detailed discussion of these mechanisms or procedures should be contained in the revised Chapter 0514 when issued .

Additionally, the Commission should retain the wording in Section 50.109(a)(2) such that necessary immediate action should obviate ~

priori backfit review but shall not relieve the Commission of the responsibility to conduct an analysis post priori. We believe that is the intent of the proposed addi ti ona l wording in Footnote 3.

However, the language found in the original rule is much clearer.

Georgia Power Company is a member of the Nuclear Utility Backfitting and Reform Group and endorses the comments of that group with respect to the proposed rulemaking.

0497U

Georgia Power , \.

U. S. Nuclear Regulatory Commission October 7, 1987 Page Three If you have any questions in this regard, please contact this office at any time.

Sincerely

~r.q., a-L. T. Gucwa MJB:LTG:ju c: Georgia Power Company Mr. J. P. O'Reilly, Sr. Vice President - Nuclear Operations Mr. J. T. Beckham, Jr., Vice President - Plant Hatch Mr. G. Bockhold, Jr., General Manager - Plant Vogtle GO-NORMS O497U

DOCKET NUMBER PR - ~?J PROPOSED RULE ,. )

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• 5, 1 987 *

• Secretary, U.S. Nuclear Regulatory Commission Washington, D.C., 20555 ATTN: Docketing and Service Branch.

Subject:

Comment on Proposed Rule" Revision of Backfitting Process for Power Reactors," 10 CFR 50.109 Backfitting.

Dear Secretary,

After reading the original backfitting rule found in the 1987 edition of 10 CFR 50, the proposed revisions found in Federal Register, Vol. 52, No. 175, Sept. 10, 1987, and the court opinion in Union of Concerned Scientists v. U.S. NRC, (824 F.2d 108 <D.C. Cir. 1987>>, I would like to make the following comments for your consideration.

1. The Court correctly points out that Sec. 182(a) of the Atomic Energy Act requires the NRC to ensure that public health and safety are adequately protected from operating nuclear power plants, without taking into account the economic costs needed to reach this level of adequate protection.

And the Court states that under Sec. 161 of the Act, the NRC is empowered to establish safety requirements, that are not necessary for adequate protrction, that are additional, and that may take economic factors into account.

The Court found the backfitting rule did not maintain this exclusion of cost analysis from Sec. 182(a) as was required by statute. It therefore vacated the rule stating that "the backfitting rule is an exemplar of ambiguity and v gueness; indeed, we suspect that the Commission designed the rule to achieve this very result". (824 F.2d 108 (at 119)).

It appears that the Commission has cured this defect in its proposed rule by allowing for cost analysis to arise only in connection with backfitting based upon Sec. 161. Thus there is now no possibility of this type of cost analysis being carried out under Sec. 182(a>, except in footnote 3.

In footnote 3 of the proposed rule, a cost analysis between alternatives is permitted even though the footnote seems to apply to an action based upon Sec. 182(a). Since 1

ss: r l

I

this is contrary to the Court's opinion, I recommend that the reference to cost within the last sentence of the footnote be deleted. Possibly the ending of the previous sentence in footnote 3 could be modified to 11 * * *

• which best suits its purposes, erovided that the objective of comeliance or adeguate Qrotection is met.

2. The NRC was attempting with the vacated rule and is attempting with this proposed rule to correct an arbitrary and highly criticized process. Indeed the Court made note of "the staff's prior backfitting practices which have cost consumers billions of dollars, have made nuclear plants more difficult to operate and maintain, have injected uncertainty and paralyzing delay into the administrative process and in some instances may have reduced rather than enhanced public health and safety". <Report on Backfitting and Licensing Practices at the U. s. Nuclear Regulatory Commission

<Mar.11,1985), (824 F.2d 108 Cat 110>>.

Unchanged in the vacated rule and in the proposed rule is the wording of Sec. 50.109(a) <3>; "the Commission shall require the backfitting of a facility only when it determines, **** , that there is a substantial increase in the overall protection of the public health and safety or the common defense and security to be derived from the backfit and that the direct and indirect costs of implemention for that facility are justified in view of this increased protection".

Trying to reconcile these last two quotes with Secs. 182(a) and 161 is difficult for me. The picture I have is that NRC wants to require a backfit when a substantial increase in protection is possible at a reasonable cost. And this on the surface makes good sense.

But in granting the original/current operating license, the NRC has already said that the plant can operate without any undue risk to the public health and safety, that the public is adequately protected. Clearly this level of adequacy is by no means equal to zero risk. Rather it means that there is no remaining significant risk of harm to the public.

So the Commission first reviews the safety characteristics of a plant and decides that its operation presents no undue risk to the public, that the public is adequately protected. This must mean that whatever risk is residual at that plant must be insignificant, that it cannot be substantial.

Then the proposed backfit rule comes into pl~y where it is stated that when a substantial increase in public protection is possible through a modification at reasonable cost it will be required. Doesn't this put the Commission in 2

a quandary? The plant is operating safely with no undue risk to the public, and yet the plant is operating such that a substantial increase in overall protection of the public health and safety is possible. Both of these conditions are permitted under Sec. 182(a).

Now there could be new knowledge developed that would lead the Commission to realize that some plants had an accident potential heretofore unseen or that the public required an even more exacting safety requirement for plant operation - a higher level of adequacy - and this, as I understand the backfit rule, is included in Sec. 50.189(4).

But this is am ndated backfit, one required by Sec. 182<a>.

It may be that my observations are personally unsettling because I am misinterpreting the terms "adequate",

"substantial", "undue risk", and some others. Or it may be that they are not defined with enough precision by the NRC so that a reasonable technical person can see what the license based upon Sec.182(a) means.

Perhaps a way through the process of licensing and backfitting can be made more meaningful if it is viewed as follows. During the initial Sec.182(a) licensing the burden is on the applicant to show to the satisfaction of the NRC that the plant can be oper ted without undue risk to the health and safety of the public. Once the license is granted, and barring a requirement of emergency action by the NRC, the burden then shifts to the NRC to show that a plant modification is required to substantially reduce public risk, even though such risk is necessarily residual.

I hope you will consider these comments from one who has thought about these issues for some time. NRC has a difficult job to do and perhaps now is not the time to visit the issues mentioned above. But then again is there ever a right time?

Sincerely yours,

~c~

Robert C. Erdmann 3

DOCKET NUMBER PR ' ~

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Florida Tl IET .

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CORPORAT I ON Walter S. Wi lgus Vice Presi dent Nuclear Ope rat io n s October 7, 1987 3F1087-08 Mr. Samuel J. Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Attn: Docketing and Service Branch

Subject:

Revision of 10CFR50.109 - Backfitting Rule for Power Reactors

Dear Sir:

Florida Power Corporation (FPC) is submitting the following comments on the subject proposed rule as published in the September 10, 1987 Federal Register at 52FR34223.

1. Section 50.109(a)(2) should retain the requirement for the Commission to perform an after-the-fact analysis of a backfit imposed by either subsections (a)(4)(ii) or (a)(4)(iii). Revised footnote 3 to the rule covers a backfit imposed by Section 50.109(a)(4)(iii), however, FPC would prefer that the clear language of the current rule be retained in subsection (a)(2).

2. FPC believes the Statement of Considerations for the final rule should contain a discussion of the new 11 adequate protection 11 exception created by 50.109(a)(4)(ii). This clarification should recognize the constraints on the Commission's classification of post-licensing regulatory actions as 11 necessary 11 for adequate protection. Once the NRC has licensed a plant for operation, a presumption that the pl ant is safe and adequate protection is provided for applies. The proposed exception would generally occur only when significant new information arises or an event occurs which clearly demonstrates the facility no longer provides adequate protection. Therefore, the final rule should cl early state that the NRC must co nduct a thorough analysis (excluding the consideration of economic costs) demonstrating that the adequate protection threshold could not be met without the proposed regulatory action.

3201 Thirty -fou rth Street So uth

• P O Box 14042, St. Petersburg, Florida 3373 3

• 81 3- 866*5202

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October 7, 1987 3F1O87-O8 Page 2

3. The exception proposed by 5O.1O9(a)(4)(iii) is redundant in view of 5O.1O9(a)(4)(ii). FPC believes this section should be deleted from the final rule because there should be no cases involving a change in the adequate-protection standard that would not also be covered by subsection (ii). If it is not, then FPC recommends clarification along the same lines as the first exception.

FPC is a member of the Nuclear Utility Backfitting and Reform Group (NUBARG) which is submitting separate comments on this proposed rule. We support those rule changes and clarifications to the "Statement of Considerations" suggested by NUBARG in its response.

Sincerely, W. S. Wil s Vice President, Nuclear Operations WSW/JWT/sdr

..I ILLINOIS INSTITUTE OF TECHNOLOGY Lewis College of Science and Letters Department of Mathematics October 9, Mr. Chilk Secretary U.S. NRC Washuington, DC 20555 Attn: Docketing and Service Bran c h

Dear Mr. Chilk:

I emphatically object the proposed Draft of Part 50, #109 Rule and, specifically, paragraph (a)(4) which would allow NRC to base its decisions on "findings" a nd "declarations" of NRC staff instead of scientific analyses.

There have been regrettable "findings" and "declarations" of NRC staff absolutely baseless in essence. For example, former NRR Director, Mr. Denton "declared" in his DD-84-6 that leak rate tests of LaSalle and Zion nuclear containment systems were adequate (numerous FOIA requests identified no analyses done of these tests). However, the Zion 1983 test was simply fraudulent, and Denton had to acknowledge this fact and to shut the facility for repair and retesting.

It appears that the draft Rule is prepared to allow the utility companies to save money by avoiding the backfitting of some of their facilities where there exists a real need.

In many instances, such savings are illusory.

For example, on October 9, 1985 , a new Rule 9.4 wa s adopted b y NRC , i n a bl a t a nt v iola tion of the F reedom of Informat i on Act (FOIA). The new Rule made unavailable records not in direct possession of NRC under a pretext that substantial savings would be realized from depriving citizens of their unalienable rights. These savin g s should have come throu g h the paperwork reduction, however, the records in question are, mostly, archived on magnetic tapes or discs, and costs of their duplication is nil.

It appears, also, that the prposed draft rule is in conflict with USCA for DC ruling of September 10, 1987 in that it is another "exemplar of ambiguity and vagueness ... designed to achieve this very result."

IIT Center Chi cago, illin o is60616 (31 2) 567-3162

~f.{;/,owtecigedby card:- -/Ab)£

t MMl5S100 T

It should be noted, that NRC staff deliberately creates Rules which amount to allowing a no rule at all. For example, on October 29, 1986, the NRC submitted for public comment Draft Appendix J to 10 CFR. In a section of it (called "Details" with unsurpassed impudence) the ..£!!.ly_

requirement to a testing methodology was "declaration" by an operator. Thus, such faulty "methodologies" as ANS 56.8-81, BN-TOPl, ANS 56.8-87, etc. which invite fraudulent testing, and which have b e en unsucces sf ul l y pe nd in g with NRC for many years, may becoie legitimate without analyses, publ i c comment resolution, endorsement, due legal process, etc.

Please keep me posted on further development. Do not hesitate calling me if I can be of any help to you.

Sincerely,

(

Z. Reytblatt Dept. of Mathematics IIT Chicago, IL 60616 Tel: (312) 567-5343

e Commonwealth Edison One First National Plaza, Chicago, Illinois Address Reply to: Post Office Box 767 Chicago, Illinois 60690 - 0767 DOCKET NUMBER PROPOSED RULE PR C§~ p,,e ~ 4~g September 29, 1987

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~ (ET 15 AIO :07 Samuel J. Ch i lk, Se cretary U.S. Nuclear Regulatory Commission Attn: Docketing and Service Branch Washington, D.C. 20555 Dea r Mr. Chil k :

Subject:

Revision of Backfitting Process for Power Reactors (52 Fed. Reg. 34223, September 10, 1987)

This provides Commonwealth Edison Company's ("Edison")

comments on the subject proposed rule. Edison understands that the proposed changes are intended to conform the Nuclear Regulatory Comm i ssion's ("NRC") backfit rule, 10 CFR 50.109, with the recent decision by the U.S. Court of Appeals for the District of Columbia Circuit ("D.C. Circuit). Union of Concerned Scientists v. U.S. Nuclear Regulatory Commission, D.C. Cir . Nos. 85-1757 and 86-1219 (August 4, 1987). However, Edison believes that the NRC's proposed conforming changes require clarification.

1. Rephrasing of the exception in 10 CFR 5.109(a) (4) (ii) creates an implication t h at "no undue risk" to public health and safety is different from "adequate protecti o n" of public health and safety. Such an implication would be unwarranted and potentially confusing. The implication arises from the proposed replacement of the phrase "no undue risk" with the phrase "adequate protection." Such a change in phraseology is not required for conformance to the D.C. Circuit's decision. Indeed, the D.C. Circuit e x plic i tly acknowledged that the NRC used the two phrases interchangeably. Slip. op. at 3. Under these conditions, changing the phraseology in 10 CFR 50.109(a) (4) (ii) gives rise to the inference that the NRC now considers "no undue risk" to be different from "adequate protection." That inference can be avoided by retaining the original language in 10 CFR 50.109(a) (4) (ii). Alternatively, if the NRC intends to use "adequate protection" throughout for

f AMI S'> lotl ION I

6 stn, Copi

Samuel J. Chi l k, Secretary U.S . Nuclear Regulatory Commission Page 2 Sep t ember 29, 1987 consistency, it should note that explicitly in the State-ment of Consideration and explain that no substantive change is intended by that change in wording.

2. The new exception, without additional criteria, could swallow the backfit rule. 10 CFR 50.109(a) (4) (iii) would preclude the need for a backfit analysis of any proposed redefinition of what constitutes an adequate level of protection to the public health and safety.

That exception is clearly required by the D.C. Circuit's decision. However, the absence of guidelines on redefining the adequacy of protection leaves the NRC free to impose all backfits without further analysis simply by declaring that such backfits are necessary to meet a newly defined level of adequate protection. To avoid this situation, the NRC shou l d also promulgate criteria for redefining the adequacy of the level of protection of public health and safety. As long as these criteria do not involve the consideration of costs, they would be consistent with the D.C. Circuit's interpretation of the Atomic Energy Act of 1954, as amended.

Sincerely, L. D. Butter Nuclear Licensing Manager LDB/ck

J..~ DOCKET NUMBER PR -66 w,_> PRO POSED U  ! r-,e ..;4 Z2.6-WASHINGTON PUBLIC POWER SUPPLY SYSTEM P.O. Box 968

• 3000 George Washington Way

• Richland, Washington 99352 1fl IEI 15 JaO :07 October 8, 1987 Mr. Samuel J. Chilk, Secretary U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Attn: Docketing & Service Branch

Subject:

NRC PROPOSED RULE: REVISION OF BACKFITTING PROCESS FOR POWER REACTORS The subject proposed rule ( 52FR34224, September 10, 1987) has been reviewed by the Washington Public Power Supply System. As the licensee for an operating nuclear power plant, and the holder of two construction permits for deferred pl ants, the Supply Sys tern is very interested in the subject proposed rule.

The Supply System favors the proposed revision of the backfitti ng process rule, and is of the opinion that it adequately responds to the concerns expressed by the U.S. Court of Appeals. We have participated in the development of the Backfit Rule (10CFR 50.109) through the Nuclear Utility Back fit and Reform Group ( NU BARG) and support the detailed comments submitted by NUBARG.

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THE CONSERVATION COUNCIL OF NORTH CAR~IM1'15 AS :zz 307 Granville Rood , Chapel Hill, N.C. 27514 (919) 942 -7935 or 942-1080 (24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />)

October 2, 1987 Secretary US Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Service Branch Re: Proposed Revision of Backfitting Process for Power Reactors 52 Fed. Reg. 34223 et seq.

Dear Sir:

The Conservation Council has intervened in the licensing of the Shearon Harris nuclear power plant and has commented several time on proposed rules.

These comments are on the proposed backfitting for power reactors.

It is our reading of Union of Concerned Scientists v. NRC, (D.C. Cir.,

August 4, 1987) that the Atomic Energy Act does not permit the NRC to consider economic cost when determining what is necessary to protect public safety or enforcing such standards in individual cases.

The proposed rule at 10 C.F.R. 50.109(a)(4)(iii) is extremely vague as it presents no standards for or explanation of the phrase "defining or redefining" adequate safety. It is not clear when the Commission will use a cost-benefit analysis and when it will not. The purpose of the backfit rule should be to give the NRC and its staff clear guidance on when changes must be made at reactors to assure safety. The proposed backfit rule provides too much leeway and it likely that impermissible considerations of cost will continue to be used.

Additionally, there should be the opportunity for public comment on the new version of the "Manual Chapter" which gives staff guidance on backfit decisions. Again, vague guidance from the proposed rules is likely to provide vague, or even unlawful, guidance to the staff.

Thank you for the opportunity to comment on the proposed rule.

Sincerely, General Counsel

I IJ.S. NUil' oor Post Cop Add ilpecia'

NUCLEAR UTILITY BACKFITTI NG AND REFORM GROUP October 13, 1987 Mr. Samuel J. Chilk Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attn: Docketing & Service Branch Subj: Proposed Rule: Revision of Backfitting Process for Power Reactors, 52 Fed. Reg. 34223 (September 10, 1987)

Dear Mr. Chilk:

The Nuclear Utility Backfitting and Reform Group ("NUBARG")

hereby submits the following comments on the Nuclear Regulatory Commission's proposed rule entitled "Revision of Backfitting Process for Power Reactors," 52 Fed. Reg. 34223 (September 10, 1987). NUBARG is comprised of 28 nuclear utilities and the Edison Electric Institute. The Group was formed in the early 1980s and has participated actively in the development and imple-1 mentation of the backfitting rule.

!/ The utility members of NUBARG are as follows: Alabama Power Company, Arkansas Power & Light Company, Baltimore Gas &

Electric Company, Cleveland Electric Illuminating Company, Commonwealth Edison Company, Detroit Edison Company, Duke Power Company, Florida Power & Light Company, Florida Power Corporation, Georgia Power Company, Houston Lighting & Power Company, Long Island Lighting Company, New York Power Authority, Niagara Mohawk Power Corporation, Northeast Utilities, Northern States Power Company, Pacific Gas &

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In general, NUBARG considers the proposed rule to be suffi-cient to conform the Commission's backfitting rule, 10 C.F.R.

S 50.109, to the decision of the U.S. Court of Appeals for the District of Columbia Circuit in Union of Concerned Scientist.s v.

Nuclear Regulatory Com.mission, Nos. 85-1757 and 86-1219 (D.C.

Cir., August 4, 1987). NUBARG therefore urges the Commission to adopt the proposed revisions (subject to the comments below) without delay. However, NUBARG does recommend some changes to the proposed rule, particularly with respect to the new excep-tions in proposed Section 50.109(a)(4)(ii) and (iii).

I. BACKGROUND A. Need for the Backfitting Rule It may be useful to place the current proposed rule in context by briefly reviewing the basic purpose of the Commis-sion's backfitting rule. Prior to Commission efforts in the early 1980s to gain better control over the backfitting process, which culminated in the adoption of the revised Section 50.109 in 1985, 2 it was widely agreed that adequate management control was (Footnote 1 continued from previous page)

Electric Company, Pennsylvania Power & Light Company, Philadelphia Electric Company, Portland General Electric Company, Rochester Gas & Electric Corporation, TU Electric, Toledo Edison Company, Washington Public Power Supply System, Yankee Atomic Electric Company (representing also Public Service Company of New Hampshire, New Hampshire Yankee Division, Maine Yankee Atomic Power Company, ano Vermont Yankee Nuclear Power Corporation).

Final Rule: Revision of Backfitting Process for Power Reactors, 50 Fed. Reg. 38112 (1985).

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not exercised by the NRC over the backfitting of power reactors.

For example, in December 1985, the General Accounting Office issued a report to Congress which was sharply critical of the NRC's past backfitting process and which described several speci-fic backfits that had been imposed without a real understanding of their safety impact. 3 The GAO noted that "[b]oth utility and NRC officials stated that backfits have been imposed at plants that may not have resulted in safety improvements or may have had negative safety consequences. 114 The backfitting rule adopted in 1985 culminated an important effort by the Commission to enhance NRC management control over the modification of power reactors caused by the regulatory process. The rulemaking proceeding involved two rounds of public comments and over three years of Commission deliberation. 5 A full and fair opportunity for public input was provided every step of the way.

The backfitting rule established procedures to rationalize the process and ensure that before a backfit is imposed, the need ll U.S. General Accounting Office, "Nuclear Regulation: Process for Backfitting Changes in Nuclear Plants Has Improved" (December 1985) at 37-43.

Id. at 37, emphasis added. One report has also found that forthe period 1979 through 1983, 40% of occupational doses at power reactors was attributable to significant generic backfits mandated by the NRC. National Environmental Studies Project, "Occupational Radiation Exposure Implications of NRC-initiated Multi-plant Actions" (March 1986).

1/ See 49 Fed. Reg. 47034 (1984); 48 Fed. Reg. 44217 (1983).

In~dition, the Commission solicited comment on interim backfitting procedures. 49 Fed. Reg. 16900 (1984).

for and effectiveness of the proposed modifications are consider-ed in a systematic and documented manner. See 50 Fed. Reg. at 38102. An important aspect of the rule is the requirement that the NRC take into account the economic costs to licensees and ratepayers when it imposes backfits to achieve incremental safety improvements at facilities that already provide an acceptable level of protection. 50 Fed. Reg. at 38103. As the Commission noted, without consideration of costs, the regulatory process would become a quest for risk-free plants not contemplated by the Atomic Energy Act. Ibid.

NUBARG has closely followed the implementation of the back-fitting rule since it was promulgated in 1985. It is NUBARG's belief that the rule has had a positive effect in that it has heightened Staff and industry awareness of changes in require-ments that may constitute backfits and has led to greater scrutiny of the actual safety impact of such changes. However, the application of the rule by the NRC Staff has been uneven.

Cases still arise in which the Staff fails to identify proposed new requirements as backfits or seeks to impose provisions of guidance documents as binding regulatory requirements. Moreover, there have been some examples of the Staff "coercing" backfits by threatening to withhold restart authorization, lower SALP ratings or delay approval of unrelated licensing action -- all of which are inconsistent with Section 50.109(d) and the statements of Staff management during the Regional Workshops. Thus the need for the rule, and for increased NRC management attention over the

backfitting process, remains as great today as ever. For this reason, NUBARG urges the Commission to move forward expeditiously with the promulgation of the new final rule.

B. The D.C. Circuit Decision Judicial review of the backfitting rule was sought in the D.C. Circuit by the Union of Concerned Scientists ("UCS"). The principal thrust of UCS's appeal was its argument that the Com-mission has no authority under the Atomic Energy Act to consider economic costs when making backfitting decisions.

In its decision, the D.C. Circuit noted at the outset that it "disagree[d] with the UCS's broad construction of the Act

.... " Slip op. at 3. The Court ruled that the NRC may consider costs in making certain backfit decisions but that, in view of language in the Statement of Considerations, it appeared the NRC might interpret the rule to allow consideration of costs in circumstances in which the Act precludes it.

In the Court's view, the Act establishes a two-tier structure for protecting the public health and safety. First, Section 182a of the Act commands the NRC to impose minimum standards that are necessary to provide "adequate protection of the public health and safety. In establishing, redefining, or enforcing these minimum standards, the Court ruled that the NRC may not consider the economic cost to the licensee. Slip op. at 12. Second, in addition to these minimum requirements, the Court stated that Section 161 of the Act empowers (but does not require) the

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Commission to establish standards to achieve an incremental safety improvement at plants already found to provide adequate protection. When imposing these more typical types of backfits, the Court stated that the NRC is free to consider any relevant factors, including costs. Slip op. at 13. 6 Thus, on the central legal issue in the case, the Court upheld the NRC. However, the Court concluded that in the state-ment of Considerations the NRC suggested an intent to apply the cost/benefit analysis under the rule when redefining the first type of requirements, viz., those necessary for adequate protec.:..

tion. Slip op. at 24. The Court pointed, in particular, to the

'- ,;J statement that the rule would apply to "new or modified interpre-tations of what constitutes no undue risk to the public health and safety." Ibid., quoting 50 Fed. Reg. at 38103. Without finding any specific deficiencies in the language of the rule itself, the Court vacated the rule because of its "vulnerability

. . . to this and other impermissible interpretations . . . . "

Slip op. at 25. 7 NUBARG, as an intervenor in .support of the NRC in the Court proceedings, did not take the position that Sections 161 and 182 of the Act establish a two-tier structure of regulation as described by the Court. Rather NUBARG took a position (to which we still adhere) similar to that urged by Judge Williams in his concurring opinion. Specifically, Judge Williams noted (at page 4, n. 4) that rather than the majority's two-tiered construction of the Act, "[a] more conventional approach would be to find in S 182(a) authority to impose both a minimum level of safety without regard to cost and an extra level arrived at in light of cost, and to view S 16l(i) as merely authorizing regulations implementing these standards."

7/ The Court also vacated Manual Chapter 0514, which implements TFootnote 7 continued on next page)

II. DISCUSSION A. The Proposed Rule Is Generally Adequate To Conform Section 50.109 To The Court's Decision NUBARG believes that the proposed rule will clarify Section 50.109 and the Commission's intent in a way that adequately responds to the decision of the D.C. Circuit. In vacating the backfitting rule, :the Court was concerned not so much with the language of the rule itself but with the fact that the Statement of Considerations did not make clear the Commission's intent to exclude economic costs as a factor in establishing new or modi-

- fied requirements for the baseline level of adequate protection.

In issuing t~e proposed rule, the Commission has made cl~ar its intention by articulating the principle that "[i]n defining, redefining or enforcing [the] statutory standard of adequate protection, the Commission will not consider economic costs." 52 Fed. Reg. at 34223. The Commission has also added some new exceptions to the rule as well as an explicit statement that it "shall always require the backfitting of a facility if it deter-mines that such regulatory action is necessary to ensure that the facility provides adequate protection . . . . " Section 8

50.109(a)(4).

(Footnote 7 continued from previous page) the rule for plant-specific backfits. Without reaching any of UCS's particular challenges to the Manual Chapter, the Court simply vacated it "for the same reason that we vacate the backfitting rule." Slip op. at 25.

~/ As discussed below, NUBARG recommends that this latter concept be clarified and restated.

NUBARG believes that the Commission has made clear its intent in a way that adequately responds to the Court's concerns.

NUBARG therefore supports the proposed rule, subject to the addi-tional comments below.

B. The Commission Should Make Some Limited Changes In The Proposed Rule To Clarify The Circumstances Under Which The Exceptions Will Apply Under the proposed revisions, there would be three exceptions to the backfitting rule. The first, unchanged from the previous rule, is for "a modification [that] is necessary to bring a facility into compliance with a license or the rules or orders of the Commission, or into conformance with written commitments by the licensee . " Section 50.109(a)(4)(i). The second is for regulatory action "necessary to ensure that the facility provides adequate protection . . . ." Section 50.109(a)(4)(ii).

And the third is for regulatory action that "involves defining or redefining what level of prot~ction . . . should be regarded as adequate." Section 50.109(a)(4)(iii).

NUBARG believes, that there is a substantial amount of overlap in these exceptions and that they have not been adequately defined or explained in the proposed rule. This could result in confusion as to their applicability in future cases. For this reason, NUBARG recommends that these exceptions be modified and clarified as indicated below.

In addition, it is important for the Commission to distin-guish "backfits" from those "modifications" and "regulatory actions" implemented under the exceptions to the rule. Strictly speaking, actions in this second category should not be consider-ed "backfits" ~ se. In the attachment hereto, we have indi-cated certain changes in the text of the rule to keep this distinction clear. For example, we have added language to distinguish a "backfit analysis" under paragraph (c) from the "documented evaluation" required to justify the use of one of the exceptions to the backfitting rule. In addition, we have added language in paragraph (a)(2) regarding the imposition of a "backfit" on an immediately effective basis under 10 C.F.R.

§2.204 and the Commission's obligation to perform an after-the-fact backfit analysis. This type of case is to be distinguished from those in which a "modification" or "regulatory action" is implemented under one of the exceptions in paragraph (a)(4) on an immediately effective basis pursuant to §2.204 and the Commission is obligated to prepare its "documented evaluation" after the 4lt fact.

1. The Adequate Protection Exception In Section 50.109(a)(4)(ii) May Result In Confusion And Should Be Deleted. If The Exception Is Not Deleted, Its Scope Should Be Clarified.

Conceptually, there are two basic situations in which an exception to the backfitting rule should apply: first, where a plant falls below the existing baseline level of adequate pro-tection and must be restored to that level; and second, where

the Commission, with a rational supporting basis, finds that the existing baseline level of adequate protection must be raised.

As to the first situation, the existing baseline of adequate protection is established by the current regulatory requirem~nts and licensing basis applicable to the facility, viz., the license, applicable rules and orders of the Commission based upon which the facility was licensed, and binding licensee commit-ments. The second situation, in general, should only arise if significant new information comes to light or an event occurs which demonstrates that the existing baseline is no longer acceptable (see discussion below).

Because existing regulatory requirements form the baseline level of adequacy, the "adequate protection" exception in subsec-tion (a)(4)(ii) should be entirely subsumed under the "compli-ance" exception in subsection (a)(4)(i). There can be no cases in which a facility that complies with all applicable regulatory requirements would fall below the existing baseline level of adequate protection. The Commission has long recognized that compliance with regulatory requirements is sufficient to esta-blish that a facility provides adequate protection. See State-ment of Policy: Further Commission Guidance for Power Reactor Operating Licenses, 45 Fed. Reg. 41738, 41740 (1980) ("generally a finding of compliance with the regulations entitles one to the requested permit or license insofar as the requirements of the Atomic Energy Act are concerned"); Matter of Maine Yankee Atomic Power Company (Maine Yankee Nuclear Power Plant, Unit 2), ALAB-

161, 6 AEC 1003 (1973), aff'd, CLI-74-2, 7 AEC 2 (1974), aff'd sub nom. Citizens for Safe Power v. NRC, 524 F.2d 1291 (D.C. Cir.

1975). 9 Our research has revealed no cases in which the Commission has recognized that some additional measures not contained in existing requirements are necessary to ensure that a facility continues to meet the current level of adequacy. Where the Commission has found it necessary to supplement existing require-ments, its actions can be fairly characterized as raising the baseline level of adequacy, which would be covered by the excep-tion in subsection (a)(4)(iii) which we would retain in the rule.

For example, in the 1980 Statement of Policy cited above, the Commission, in the wake of the TMI-2 accident, imposed the TMI Action Plan requirements as a "supplement" to the then current regulations. This was done to achieve "comprehensive improve-ments" in the operation of nuclear power plants, i.e., to redefine and raise the level of adequacy. 45 Fed. Reg. at 41738.

For these reasons, the "compliance" exception in subsection (a)(4)(i) should sufficiently cover any cases that could arise under the new "adequate protection" exception of subsection (a)(4)(ii). Moreover, if this second exception were to remain in See also Power Reactor Development Co. v. International UnTon OIElectrical, Radio and Machine Workers, 367 U.S. 396, 411 (1961), wherein the Supreme Court noted that an operating license will be granted, inter alia, upon "a finding that the reactor will operate in accordance with the act and regulations -- i.e., that the safety and health of the public wi 11 be adequa tery-protected . . . . "

the rule, it could be misconstrued as an indication that some measures beyond compliance with applicable regulatory require-ments may be necessary to achieve adequate protection. Such a result is contrary to well-established principles of regulation under the Atomic Energy Act and would inject great uncertainty into the regulatory process. NUBARG therefore recommends that subsection (a)(4)(ii) be deleted from the rule.

If, however, the Commission does not delete this proposed second exception, it should explicitly discuss the limitations on this exception in the Statement of Considerations. Consistent with its past position, the Commission should recognize that applicable regulatory requirements form the baseline level of adequate protection that a plant must provide. The Commission should also recognize the presumption of safety that applies once a plant has been licensed after detailed NRC review and upon the definitive finding of safety required by the Atomic Energy Act.

See 50 Fed. Reg. at 38103. It follows from these well-establish-ed propositions that a plant licensed in compliance with applic-able requirements is presumed to provide adequate protection.

These principles should be set forth in the Statement of Conside-10 rations if the Commission does not delete subsection (a)(4)(ii).

.!.QI We have included as an attachment hereto a rewrite of portions of the rule and Statement of Considerations to reflect NUBARG's comments in this letter.

2. The Exception In Proposed Section 50.109(a)(4)(iii) Should Be Clarified Section 50.109(a)(4)(iii) proposes to create an exception where the regulatory action involves "defining or redefining" what levei of protection is adequate. The Commission, however, does not explain the scope of this exception or the limitations on the Commission's or Staff's use of it. In line with the above discussion, NUBARG recommends that the exception be clarified to reflect that "adequate protection" should not be redefined in the absence of significant new information.

There is no dispute that the Commission has the authority to establish a new or modified level of what constitutes adequate protection. 11 The Supreme Court has recognized that agencies have "ample latitude to 'adapt their rules and policies to the demands of changing circumstances.'" Motor Vehicle Manufacturers Asso-ciation v. State Farm Mutual Automobile Insurance Co., 463 U.S.,

29, 42 (1983), quoting Permian Basin Area Rate Cases, 390 U.S.

747, 784 (1968). However, there are limits on an agency's autho-rity to change its standards. When an agency changes its stan-dards it must act rationally and consistently in light of available evidence. As the Supreme Court noted in Motor Vehicle Manufacturers, "the agency must examine the relevant data and articulate a satisfactory explanation for its action "

See Power Reactor Development Co., 367 U.S. at 408

("nuclear reactors are fast-developing and fast-changing.

What is up to date now may not, probably will not, be as acceptable tomorrow").

463 U.S. at 43. See also Greater Boston Television Corporation

v. FCC, 444 F.2d 841, 852 (D.C. Cir. 1970) ("An agency changing its course must apply a reasoned analysis indicating the prior policies and standards are being changed, not casually ignored

• II )

• These principles are especially important in the NRC's regulation of licensed facilities, since a change in the level of protection considered adequate would affect outstanding licenses and in some cases could effectively amount to a revocation or suspension of a license. The Commission has previously recog-nized that a presumption of safety applies to a plant that has been licensed after the detailed findings required by the Atomic Energy Act and is operating in compliance with applicable requirements. See 50 Fed. Reg. at 38103. In order to foster consistency and predictability in the NRC's regulation of power reactors, the Commission should note explicitly in the Statement of Considerations that the level of protection considered ade-quate should not be changed in the absence of significant new information or the occurrence of an event which clearly shows that the present level of safety is no longer adequate. Unless such significant new data come to light to show that the present level of safety is no longer adequate, the existing baseline requirements should continue to be acceptable. 12 Ibid. A similar principle applies for plants that have been granted construction permits. There is a presumption that the design of the plant remains adequate unless significant new information shows otherwise.

Without this clarification, the exception in proposed subsec-tion (a)(4)(iii) could impair the certainty and predictability of the regulatory process. NUBARG therefore urges that the Commis-sion clarify this exception as indicated.~ 3 C. The Footnote To The Rule Should Be Clarified And Explained In The Statement Of Considerations As shown in the Attachment hereto, NUBARG also recommends that the footnote to the proposed rule be modified to clarify the type of documented evaluation required where one of the excep-

- tions to the backfitting rule is invoked. To ensure that the use of the exceptions is adequately justified, NUBARG recommends that the documented evaluation address the appropriate factors (exclu-ding economic costs) prescribed by paragraph (c) of the rule for backfit analyses.

The footnote to the proposed rule also addresses the conside-ration of costs where equally acceptable alternatives are avail-able to achieve compliance or meet a redefined level of adequate protection. It appears from the D.C. Circuit's opinion that the Court may not have fully understood this point and felt that it impermissibly injected cost as a factor when bringing a plant up to a level of adequate protection. See slip op. at 8 .

..!.l_/ As shown in the Attachment hereto, NUBARG also recommends that the phrase "involves defining or redefining" in proposed subsection (a)(4)(iii) be replaced with the phrase "is necessary to redefine". By deleting the word "defining",

this change would avoid unnecessary overlap with subsection (a)(4),(i) and would be consistent with the Commission's intent in proposing the new subsection (a)(4)(iii).

To avoid any misunderstanding on this point, NUBARG recom-mends that the footnote be given some explanation in the State-ment of Considerations. The basic point is that there is often more than one way for a licensee to comply with the general pro-visions of the NRC regulations. When faced with two or more alternatives that would each achieve compliance and provide an adequate level of protection, the licensee should be free to choose, and the Commission should be prepared to accept, the most cost-effective alternative. It would be irrational for the NRC to have to insist on "gold-plated" modifications when less costly ones will do just as well.

D. Final Sentence of Section 50.109(a)(4)

NUBARG recommends that the final sentence of Section 50.109(a)(4) be modified as shown in the Attachment hereto. This sentence is intended to specify what action the Commission will take when one of the exceptions to the backfitting rule applies, namely, that the Commission will require that the modification or

- regulatory action be implemented. For the purpose of clarifying this provision, NUBARG recommends that the final sentence of Section 50.109(a)(4) in the proposed rule be replaced by the following language:

When either of these exceptions applies, the Commission shall require that the modification or regulatory action be implemented.

Imposition of the modification or regulatory action on an immediately effective basis pursuant to §2.204 shall not relieve the Commission of performing the documented evaluation required by this paragraph after the fact.

The second sentence of this proposed language is intended to recognize that when one of the exceptions to the rule applies, the Commission may require the implementation of the modification or regulatory action on an immediately effective basis in acpord-ance with Section 2.204. In such cases, the documented evalua-tion required by paragraph (a)(4) should be performed after the fact. The current footnote to the proposed rule recognizes this, but the language we recommend would be a clearer and more direct statement to this effect.

E. Section 50.109(a)(2) Should Be Revised The previous version of Section 50.109(a)(2) contained a second sentence to the effect that where a modification is imposed on an immediately effective basis, this "shall not relieve the Commission of performing an analysis after the fact to document the safety significance and appropriateness of the action taken." In NUBARG's view, such a provision is an accurate statement of the Commission's obligation when it exercises its authority under 10 C.F.R. S2.204 to take action on an immediately effective basis, and language to that effect should be retained in Section 50.109(a)(2) for immediately-effective backfits. An affirmative provision in the rule itself would remove any doubt as to the Com.mission's responsibility in this respect. NUBARG

therefore recommends that the following provision be added to the end of proposed Section 50.109(a)(2):

Imposition of a backfit on an immediately effective basis pursuant to §2.204 shall not relieve the Commission of performing the backfit analysis required by paragraph (c) after the fact.

III. CONCLUSION NUBARG believes that the proposed revisions to Section 50.109, with the changes and clarifications indicated above,

• will adequately respond to the D.C. Circuit's decision and that the rule, as modified, should be finalized without delay. NUBARG also urges that the Staff proceed with modifications to Manual Chapter 0514 to conform to the new rule. NUBARG appreciates the opportunity to comment on the Commission's proposed rule.

submitted, s

URCELL & REYNOLDS 1200 S h St., N.W.

washin c. 20036 (202) 857-9800 Counsel to Nuclear Utility Backfitting and Reform Group Enclosure

ATTACHMENT PROPOSED CHANGES TO STATEMENT OF CONSIDERATIONS AND TEXT OF THE RULE Text of the Rule The following is a mark-up of the text of the rule as revised to incorporate NUBARG's comments. Additions are shown by brackets and underlining, while deletions are indicated by striking through the provisions to be deleted.

SS0.109 Backfitting.

(a) * * *

(2) Except as provided in paragraph (a)(4), the Commission shall require a systematic and documented [backfit] analysis pursuant to paragraph (c) for backfits which it seeks to impose. Im osition of a backfit on an i e basis e Comm s (3) Except as provided in paragraph (a)(4), the Commission shall require the backfitting of a facility only when it determines, based on the

[backfit] analysis described in paragraph (c) of this section, that there is a substantial increase in the overall protection of the public health and safety or the common defense and security to be derived from the backfit and that the direct and indirect costs of implementation for that facility are justified in view of this increased protection.

(4) The provisions of paragraphs (a)(2) and (a)(3) of this section are inapplicable and, there-fore, [a] backfit analysis is not required and the standard does not apply where

the Commission or staff, as appropriate, finds and declares, with appropriate documented evaluation for its finding,ll.Ll_ either:

/

(i) That a modification is necessary to bring a facility into compliance with a license or the rules or order[s] of the Commis-sion, or into conformance with written commitments by the licensee; or (ii) ~hat regulatory aotion is necessary to ensure that the faoility provides adequate protection to the health and safety of the public and is in acco~d with the common defense and secu~ity, or

[(ii)] That the regulatory action [is necessary to redefine] involves defining or redefining what level of protection to the public health and safety or common defense and security should be regarded as adequate.

[Such documented evaluation shall include a statement of the objectives of and reasons for the modification or regulator¥ action and the basis for invokin the exce tion. The ocumente eva ua ions a a ress t e a ro riate factors (excludin economic costs) rescr e in ara ra c or ocumente ac it ana ~ses.

regulatory a tion is required, then the documented evaluation may follow rather than

~recede the regulatory action, If there are two or more ways to achieve compliance with a license or the rules or orders of the Commission, or with written licensee commitments, or there are two or more ways to reach a [redefined] level of protection which is adequate, then ordinarily the applicant or licensee is free to choose the way which best suits its purposes. Should it be necessary or appropriate for the Commission to prescribe one of these ways to comply with its require-ments or to achieve [a redefined level of]

adequate protection, then cost may be a factor in selecting the way, provided that the objective of compliance or adequate protection is met.

[When either of these Comm ssion w require on or regulatory action be mp emen e . mposi-tion of the modification or regulatory action

• * ' basis to e Com.mi valuatio oation and the basic for invoking the oxoep tion.3/ The Commiision shall always require the backfitting of~ facility if it determines that such regulatory action is nooocsary to ensure that tho facility provides adequate protection to the health and safety of the publio and is in aoaord with the common defence and security.

Statement of Considerations

1. Section 50.109(a)(2)

NUBARG recommends that the following language be added to the Statement of Considerations to clarify the purpose and effect of some of the revisions to §50.109(a):

In the revised regulation, the Commission has purposely distinguished "backfits" from those "modifications" and "regulatory actions" implemented under the exceptions to the rule.

Actions in the second category are considered not to be "backfits" ~ se. For this reason, the Commission has adaea Tanguage to distinguish a "backfit analysis" under paragraph (c) from the "documented evaluation" required to justify the use of one of the exceptions to the backfitting rule. In addition, paragraph (a)(2), regarding the imposition of a "backfit" on an immediately effective basis under 10 C.F.R. §2.204, is to be distinguished from cases in which a "modification" or "regulatory action" is implemented under one of the exceptions in paragraph (a)(4) on an immediately effective basis pursuant to §2.204.

2* Section 50.109(a)(4)(ii)

NUBARG recommends that proposed Section 50.109(a)(4)(ii) be deleted for the reasons discussed in the comments. However, if the Com.mission does not delete this proposed exception to the backfitting rule, NUBARG recommends that the following -language be added to the Statement of Considerations by way of clarifica-tion:

The exception in Section 50.109(a)(4)(ii) is meant to apply where regulatory action is necessary to assure that a facility meets the existing baseline level of adequate protec-tion. Consistent with Commission precedent, the existing baseline level of adequate protection is established by the current regulatory requirements applicable to the facility, viz., the license, applicable rules and ordersorthe Commission based upon which the facility was licensed, and binding licensee commitments. Once a plant has been licensed after detailed NRC review and upon

the definitive finding of safety required by the Atomic Energy Act, there is a presumption that the plant provides adequate protection as long as it continues to operate in compliance with applicable regulatory requirements.

Thus, in general, there should be no cases in which a plant meets all regulatory require-ments but fails to provide adequate protec-tion. The situations which the new "adequate protection" exception of Section 50.109(a)(4)(ii) is intended to cover should therefore also be covered by the "compliance" exception in Section 50.109(a)(4)(i). The Commission can conceive of no situation where a plant that meets all applicable requirements could be found to fall below the existing level of adequate protection. Section 50.109(a)(4)(ii) is included in the rule, even though it may be redundant to Section 50.109(a)(4)(i), in order to respond to the D.C. Circuit's concern regarding the Com.mis-sion's intentions in implementing the rule.

3. Proposed Section 50.109(a)(4)(iii)

NUBARG recommends that the following language be added to the Statement of Considerations to clarify the purpose of proposed Section 50.109(a)(4)(iii) (which would be subsection (ii) under NUBARG's recommendations):

The exception in Section 50.109(a)(4)(iii) applies in those rare instances where the Commission has found that the existing level of protection is no longer acceptable and that a new level must be established. While the Commission has the authority and the duty to increase the level of adequacy when circum-stances warrant, the courts have made clear that such authority must be exercised rationally and consistent with available evidence. See Motor Vehicle Manufacturers Association~ State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 42-43 (1983);

Greater Boston Television Cor oration v. FCC, 444 F.2d 841, 852 (D.C. cir. 1970). Thus,----rii general, the level of protection considered adequate should not be changed in the absence of significant new information or the occur-rence of an event which clearly shows that the present level of safety is no longer accept-able. This view is necessary to maintain

certainty and predictability in the NRC's regulatory process. It is also consistent with the Commission's view that a presumption of safety applies where a plant has been licensed after detailed NRC review and upon the definitive finding of safety required by the Atomic Energy Act and is operating in compliance with applicable NRC requirements.

(A similar principle applies for plants that have received construction permits. There is a presumption that the design of the plant remains adequate unless significant new infor-mation shows otherwise.)

4. Footnote 3 The following language should be added to the Statement of Considerations in order to clarify the intent of the footnote to the rule:

Footnote 3 is not intended to inject cost as a consideration when imposing a backfit to bring a plant into compliance with regulatory requirements or to assure that the plant meets a redefined level of adequate protection.

However, the Commission understands that there is often more than one way for a licensee to comply with the general provisions of NRC requirements. When presented with two or more alternatives that would each provide an adequate level of protection, the Commission should be prepared to accept the most cost-effective alternative.

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GLA 87-161 1671 Worcester Road, Framingh a'f'I MpcfJl!sft4 ~JJ1 October 9, 1987 Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Attention: Docketing and Service Branch

Subject:

Proposed Rule Change on Revision of Backfitting Process for Power Reactors (52FR34233)

Dear Sir:

Yankee Atomic Electric Company (YAEC) appreciates the opportunity to provide comments on the subject NRC proposed rule change to the backfitting process of 10CFR, Part 50.109. YAEC owns and operates a nuclear power plant in Rowe, Massachusetts. Our Nuclear Services Division also provides engineering and licensing services for other nuclear power plants in the Northeast, including Vermont Yankee, Maine Yankee, and Seabrook.

The Nuclear Utility Backfitting and Reform Group (NUBARG) is filing a detailed response to the subject NRC proposed rule change. YAEC is an active member of NUBARG and supports the specific changes which NUBARG has recommended to the NRC proposal. In addition, we would like to offer the following.

We believe that the backfit rule must continue to provide reasonable control over the licensing process to preclude inappropriate classification of regulatory actions as "necessary" for "adequate protection." Proposed criterion (a)(4)(iii) raises the potential for undermining that philosophy.

The proposed criterion could presumably result in redefinition of the minimum level of protection for reasons of enhancing safety rather than eliminating undue risk. Such an approach would be contrary to the intent of the Commission in embracing the backfit rule.

We recommend that the Commission adopt a high enough threshold for the application of "adequate protection" to ensure that only those activities that clearly pose an undue risk are exempted from the backfit process.

Specifically, we recommend that the Commission adopt the policy that the level of protection considered adequate for a facility should not be changed unless significant new information or the occurrence of an event clearly shows that the present level of safety manifested by a facility is not adequate, and thus, requires immediate, effective action to eliminate the existing undue risk.

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Secretary of the Commission October 9, 1987 Page 2 In conclusion, we encourage the Commission to continue to maintain the responsible, rational backfitting policy which it adopted in 1985. Because this proposed rule change is central to the continued use of such a backfitting policy, we urge the Commission to proceed expeditiously with the issuance of the final rule change.

Very truly yours, Ml~

Donald W. Edwards Director of Industry Affairs DWE/22.294

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Suite 700 W ltf 1, P4 :()4 Washington, D.C. 20036 (202) 872-1280 Mr. Samuel J. Chilk, Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555 Attention: Docketing and Service Branch Re: Revision of Backfitting Process for Power Reactors, 52 Fed. Reg. 34224 (September 10, 1987) - Proposed Rule

Dear Mr. Chilk:

These comments are submitted on behalf of the Nuclear Management and Resources Council (NUMARC) in response to the Nuclear Regulatory Commission's invitation for comments in the above-captioned rulemaking. NUMARC is a nonprofit nuclear power industry organization whose basic objective is to draw upon the industry's knowledge, operational and technical expertise and responsibility for the safe operation of nuclear power plants to contribute to the attainment of operational excellence and the enhancement of nuclear power plant safety and reliability. Each utility operating or constructing a nuclear power plant in the United States is a member of NUMARC.

In addition, NUMARC is supported by all of the major nuclear steam supply system vendors and by major architect-engineering firms.

As the Commission is aware, backfitting has been the single most important issue in nuclear licensing reform, especially from the standpoint of providing needed stability to the regulatory process. The nuclear industry has supported the substantial Commission effort that led to adoption of the Commission's backfit rule on September 20, 1985 (50 Fed. Reg .

38097).

We have reviewed the proposed revision to the backfit rule which resulted from the decision of the United States Court of Appeals for the District of Columbia Circuit in Union of Concerned Scientists v. Nuclear Regulatory Commission, Nos.

85-85-1757 and 86-1219 (D.C. Cir., August 4, 1987. We believe the proposed modifications to the backfit rule adequately and fully respond to the Court's decision. The revisions make it clear that costs will not be taken into account where the

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Mr. Samuel J. Chilk October 13, 1987 Page 2 backfit involves a regulatory action needed to provide an adequate level of protection necessary for public health and safety. Under the revised rule, the Commission has made explicit what the Commission believes was implicit in the prior rule -- namely, that cost was not to be a consideration in establishment or maintenance of the adequate protection standard. We believe that in so doing the proposed backfit rule conforms to the Court's decision.

The Nuclear Utility Backfitting and Reform Group (NUBARG),

in its comments filed on the proposed revision to the backfit rule, has recommended several changes to the rule. We support the changes which NUBARG recommends and believe they would help to clarify the proposed revisions. Under those changes, the Commission would clarify the situations in which it may re-define the level of protection considered adequate. Once a plant has been found to provide adequate protection, the baseline level of adequacy should be changed only if signi-ficant new information arises or an event occurs which demon-strated clearly that a facility no longer provides adequate protection. This is consistent with Commission precedent under the Atomic Energy Act of 1954 and will ensure the stab-ility and predictability of the Commission regulatory require-ments. Further, slight wording changes to the proposed rule are suggested to clarify the type of documented evaluation required when one of the exceptions to the backfit rule is invoked. Also suggested is a clarification of the footnote to the backfit rule with regard to cases where equally acceptable alternatives are available to achieve compliance or provide adequate protection. Despite these refinements, which we believe the Commission should adopt, it is our position that the Commission proposed rule appropriately responds to the Court's decision. We urge that the proposed rule be adopted promptly by the Commission.

Sincerely,

~:nE President &

Chief Executive Officer BL:cjr

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• Re: 10CFR,0.109 Mr. Samuel J. Chilk Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20.5.5.5 Attn: Docketing and Service Branch

Dear Mr. Chilk:

• Haddam Neck Plant Mll1st one Nuclear Power Station, Unit Nos. 1, 2, and 3 Proposed Rule: Revision of Backfitting Process For Power Reactors, .52 Federal Register .34224 (September 10 1 1987)

Connectlcut Yankee Atomic Power Company (CYAPCO), on behalf of the Haddam Neck Plant, and Northeast Nuclear Energy Company (NNECO), on behalf of Millstone Nuclear Power Station, Unl t Nos. 1, 2, and 3, hereby submit the followi ng com ments on the Nuclear Regulatory Commission's proposed rule entitled "Revision of Backfittlng Process for Power Reactors," 52 P'ederal Register 34224 (September 10, 1987).

In general, C YAPCO and NNECO consider the proposed rule to be sufficlent to con!orm the Commission's backfittlng rule, 10CFR.50.109, to the decision of the U.S. Court of Appeals for the District of Columbia Circuit ln Unlon of Concerned Scientist s vs. Nuclear Regulator y Commission, Nos. s,.11,1 and i,-

1219 (O.C. Circuit August 4, 1987). CYAPCO and NNECO therefore urge the Commission to adopt the proposed revisions (subject to the comments suggested).

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Mr. Samual Chilk B12706/Page 2 October 13, 1987 However, CY APCO and NNECO do recommend some changes to the proposed rule, in the nature of clarifications, particularly with respect to the new exceptions in proposed Section 50.109(a)(4)(ii) and (iii).

The backfitting rule adopted in 1985 culminated an important effort by the Commission to enhance NRC management control over the modification of power reactors caused by the regulatory process. The rulemaking proceeding involved two rounds of public comments and over three years of Commission deliberation.

The backfitting rule established procedures to rationalize the process and ensure that before a backfit is imposed, the need for and effectiveness of the proposed modifications are considered in a systematic and documented manner. An important aspect of the rule is the requirement that the NRC take into account the economic costs to licensees and ratepayers when it imposes backfits to achieve incremental safety improvements at facilities that already provide an acceptable level of protection. As the Commission noted, without consideration of costs, the regulatory process would become a quest for risk-free plants not contemplated by the Atomic Energy Act.

CYAPCO and NNECO have closely followed the implementation of the backfit-ting rule since it was promulgated in 1985. It is our belief that the rule has had a positive effect in that it has heightened Staff and industry awareness of changes in requirements that may constitute backfits and has led to greater scrutiny of the actual safety impact of such changes. For this reason, we urge the Commission to move forward expeditiously with the promulgation of a revised final rule.

• CY APCO and NNECO are active participants in the Nuclear Utility Backfitting and Reform Group (NUBARG). NUBARG is comprised of 28 nuclear utilities and the Edison Electric Institute and was formed in the early 1980s. In its comments on the proposed rule, NUBARG provided specific comments and proposed some specific changes in the proposed rule to clarify the circumstances under which the exceptions will apply. In particular, we believe that the adequate protection exception of 50.109(a)(4)(ii) is redundant to the compliance exception of 50.109(a)(4)(i) and should therefore be eliminated. We refer you to NUBARG's rationale for the bases supporting this suggestion. Because existing regulatory requirements form the baseline level of adequacy, the "adequate protection" exception in subsection (a)(4)(ii) should be entirely subsumed under the "compliance" exception in subsection (a)(4)(i). We believe there can be no cases in which a facility that complies with all applicable regulatory requirements would fall below the existing baseline level of adequate protection. The Commission has long recognized that compliance with regulatory requirements is sufficient to establish that a facility provides adequate protection.

CYAPCO and NNECO endorse NUBARG's comments and agree with the proposed changes. We believe that the proposed revisions to Section 50.109 submitted by NUBARG represent a preferred response to the D. C. Circuit's decision.

Mr. Samual Chilk B12706/Page 2 October 13, 1987 We also urge that the Staff proceed with modifications to Manual Chapter 0514 to conform to the new rule. CYAPCO and NNECO appreciate the opportunity to comment on the Commission's proposed rule.

Very truly yours, CONNECTICUT YANKEE ATOMIC POWER COMPANY NORTHEAST NUCLEAR ENERGY COMPANY

• cc: W. T. Russell, Region I Administrator M. L. Boyle, NRC Project Manager, Millstone Unit No. 1 W. J. Raymond, Resident Inspector, Millstone Unit Nos. 1, 2 and 3 D. H. Jaffe, NRC Project Manager, Millstone Unit No. 2 R. L. Ferguson, NRC Project Manager, Millstone Unit No. 3 F. M. Akstulewicz, NRC Project Manager, Haddam Neck Plant J. T. Shedlosky, Resident Inspector, Haddam Neck Plant

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SUITE 430 WASHINGTON, D.C. 20009-1125 GAIL MCGREEVY HAR M ON ELLY N R . WEISS DIANE CURRAN DEAN R . TOUSLE Y ANDR E A C . FERST E R October 13, \987 Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attn: Docketing & Service Branch

Dear Secretary,

Enclosed are the "Union of Concerned Scientists' Comments on Proposed Revision of Backfitting Process for Power Reactors, 52 Fed. Reg. 3 4223."

Very truly yours,

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El ly n R

• We is s G.eneral Counsel Union of Concerned Scientists

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October 13, 1987 UNION OF CONCERNED SCIENTISTS' COMMENTS ON PROPOSED REVISION OF BACKFITTING PROCESS FOR POWER REACTORS, 52 film.~- 34223 Introduction The Union of Concerned Scientists (UCS) submits these com-ments in response to the Nuclear Regulatory Commission's most recent issuance of a notice of proposed rule for backfitting of I

nuclear power plants. 52 Fed. Reg. 34223 (Sept. 10, 1987). The

- comments con~ained 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 Scientists Y, 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 on 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 the 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 A~omic Energy Act, those remain-ing criticisms are still at issue and UCS once again makes those

other arguments. Those comments are attached and incorporated herein and will not be repeated. 1 The Proposed Rule Is No Less Vague 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. ~ 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 troubled 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 toques-tion the NRC's commitment to the statutory principal of ensuring adequate protection of public health and safety regardless of 1 In its decision the Court of Appeals vacated the entire back-fit rule. Slip op. at 25. In its latest proposed rule, the NRC has only repromulgated one part of that rule, apparently as an amendment to the previously enacted rule, and failed to publish. and repromulgate the rule in its entirety. For that reason, the notice issued by the NRC is technically defective.

economic cost. The Court of Appeals could not have been more clear about the defects of the backfit rule:

[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 rill 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 .

The new proposed rule suffers from the exact same defects as the one struck down by the Court of Appeals, and, therefore, is similarly deficient. The rule reviewed by the Court of Appeals contained the fo~lowing exception to the requirement of cost benefit analysis in footnote 3 to §50.109(a) (4) (ii):

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 ensuring 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 paragraph 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." .I5L_

at 38,101. In another paragraph the NRC similarly stated that

"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-able." lg_._ 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-stitutes no undue risk to the public health and safety." Id. at 38,103.

In its effort to conform to the order of the Court of Appeals, the NRC has added a new exception, § 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 ld.ll take when a backfit falls within one of these exceptions; it gives no guidance to the public and to those regulated as to when

in fact regulatory action involves "defining or redefining" an adequate level of protection; it gives no guidance or criteria as to what constitutes an "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 y.

HE& decision.

Instead of enunciating criteria and guidelines, what the proposed rule actually does is mask the fact that the key determination about 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 needed to ensure adequate safety or constitutes going beyond 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-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 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 currently proposed comes into play. It is, thus, 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 UCS y, 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 J

• or beyond adequate level of protection is implicated, in a vague and ambiguous rule. By hiding the real criteria for determining whether rule or exception applies, the NRC is ignoring the order of the D.C. Circuit.

This order of the Court of Appeals in ucs y, NRC that the NRC articulate standards, be more faithful to the statutory pro-visions it must apply, and stop trying to obscure its intentions 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

I checked. One means of controlling unbridled agency discretion is by having an agency develop guiding rules or standards for its decisionmaking processes. See generally 1K. Davis, Administra-tiye Law Treatise §2:13 (1978). In the absence of articulated standards to guide agency decisionmaking, not only are the public and those 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]."

U.S. 194, 202 (1947).

SEC v. Chenery Corp,, 332 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 th~ agency, through the rulemaking and administrative process, will gradually fill in the areas of uncertainty with specific rules. See.J e,g,,

Atlas Copco y. EPA, 642 F.2d 458, 465 (D.C. Cir. 1979); NRLB y.

Bell Aerospace co, Division of Textron, 416 u.s. 267, 290-95 (1974). As the Court of Appeals found in UCS y. 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.g., Maryland National Capital Park and Planning 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

- 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 require administrative officers to articulate the standards and principles that govern their discretionary decisions in as much detail as possible.

EDF y. Ruckelshaus, 430 F.2d at 598 (emphasis added) (footnotes omitted). In addition to the court in EDF y, 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.g., White v. Roughton, 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-

- tural workers); Holmes y. New York city Housing 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 Springs. Inc. y. Bergland, 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-cient indication of the grounds for its exercise of discretion so

\

that a reviewing court can meaningfully appraise the agency's reasoning and determine whether agency action is in accordance with law. See. e.g., Motor Vehicles Manufacturers Association y.

state Farm Mutual Automobile Insurance co., 463 u.s. 29, 48-49, (1983); camp v. Pitts, 411 u.s. 138 (1973); Matlovich v, secre-tary 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

• view the decision on backfitting, to allow meaningful judicial review--the court in UCS y, 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.

There 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 Hospital v. Weinberger, 413 F. supp. 323, 330 (N.D.

Calif. 1976) (where secretary has authority and duty to promulgate regulations governing Medicare reimbursement to hospital,

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 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.

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-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. Boyd, 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 that the NRC's decision will be the product of reasoned thought and based upon a consideration of relevant factors. ~

Specialty Equipment 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 y. 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

factors place a particular circumstance within the rule or within the exceptions.

The current proposed rule, like its predecessor, makes no 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 licensing and rulemaking decisions. See Union of Concerned scientists y. NRC, 711 F.2d 370, 380 (D.c.

Cir. 1983).

The Proposed Rule Permits Applications Inconsistent with the Law As Explicated By the Court NRC declared in proposing its new version of the backfit rule that "the Court's opinion regarding the circumstances 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 Fed.

~ - 34223, cols. 2-3, September 10, 1987. The Commission maintains that it has no quarrel with the courts ruling that it may not "consider *.. economic costs in establishing standards to ensure adequate protection of the public health," but that "once an adequate level of safety protection had been achieved .**.

[t}he Commission was fully authorized ... to consider and take eco-nomic costs into account in ordering further safety improve-ments." I.g., col. 2.

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 range and scope of safety measures that adequate protection requires" (UCS y, NRC, Slip opinion at 20) or whether it is considering measures going beyond what is necesary.

In the former case, costs cannot be considered. In the latter case, they can (indeed, as we will show below, the cost-benefit analysis prescribed by NRC all but ensures that any backfit sub-

- ject to the requirement will not be ordered.) NRC would codify 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 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

• enlightenment concerning how the rule is to be interpreted and used is NRC's current practice.

To begin with, after diligent search, we have been unable to find any instance where the NRC or the __AEC ..has ..ever ..imposed 43.Ily requirement on a licensee which it did not declare to be

.necessary to prov.i-a-e ~qua:be prot--ecti'OD."" :to the -public 'fteal'+/-b

-and --sa-fety. Nor :has ::NRC -provided -=any 'EXampl-es4 Thus, i-t ,appears

-that NRC has -nev.er*::u:sed "+/-he :au+/-hority :wh+/-ch-+/-he ..:court -:formd ..:+/-n 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 £our of the reactor coolant pumps at the Crystal River-3 nuclear plant in Florida. These 9,000 horsepower

.pumps are the ..means ..by -'lY'hich ..cooling .;water,,.;i-s ,Jtep+/- ,.c.irculB+/-i ng through the reactor core. In January, 1986, one of the shafts

.::She.ar.e.d ..oli J::omp'J.:B+/-e:J.._:y_ .:Later ~ec:tlnn:mI°--:::1::he .3?WI!PS :ili:sco:v.erea

• cracking in the bolts *and torque pins "'that *no1.-a the -propeT1:er to

• -the -shaft.

Three other piants 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

• Inspections of Davis-Besse showed that all four of its reactor coolant pump shaft~ were also cracked.

immediately ordered and installed.

Replacements were 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 two utilities to either inspect the pumps immediately or provide a technical analysis to prove that it was safe to continue to operate:

NRC ORDERS PLANTS TO JUSTIFY DELAYING PUMP SHAFT TESTS Safety concerns stemming from the discovery of r:-:--~~-,

• - - -14

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

Ar.karrsas-:Nu-cilfe-ar-j()ne-..1 '(.ANO-.l ') 7 ==:r-1:rnp*e-cti vely. Both units have -reactor -cooTant -pumps --s1..ni:1:ar -to those in which .sha£+/-.s _cr..acke_d .:at two other _plants *

...,We' r-e ..in -+/-he .:process of -sending .letters out requiring Tii3'erisees -to justify continued *operations,..,.

said an NRC staffer in the Office of Nuclear Reactor Regulation (NRR). "If they have evidence that shafts might be cracked, we're asking them to look at i t real "1'lard-=arra ~ell -=u:s =3..":f=there ~i=s =anything=that ""make-s -i-t 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 +/-hreat from shaft failures.

Emphasis added.

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 O££ice 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 discovery of eight cracked pump shafts in the last four 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 (AN0-1) 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 Corp.'s (FPC) Crystal River-3 and Toledo Edison Co.'s Davis-Besse (Nucleonics Week, 20 March, 3).

But NRR's concern that additional analyses could be considered a new NRC requirement - and therefore

would have to be justified by a cost-benefit analysis as required by the backfit rule - led the staff to drop the requests for new analyses. Instead, to avoid the possibility of having the request tied up by the

.back£i:t ..r.ul.-e., .:NRR., ..is ~king --+/-he ..+/-wo ..utilities to

~rovi-de -any c1nalysi-s -perfurme"d --subsequent -to -those prepared £or £inal safety analysis reports (FSAR) for Maine Yankee -and AN0-1~

"Inside NRC", Apr. 28, 1986, p.11, emphasis added.

'""Thus, -appll.-cati-on -o:f the -cost-"'berre"'fi.-t --anal-ys+/-s *of -the backfit rule prevented the NRC from so much as directing these utilities to provide an analysis showing that their plants could be safely operated despite a high probability of reactor coolant

- pump shaft cracks.

Remembering that .NRC claims that +/-he new .rule simply codifies its practice under the old rule, what can we learn from

+/-his -example~

..1... ..Tha:t .ltlhen .NRC ..has actuaJ. experience .0£ equipment problems at some plants, it cannot direct other similar plants to do a preventive inspection nor can it order them to provide a safety analysis without going through a cost-benefit 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 is 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.

2. We also learn from this example the inherent lack of logic and circularity embedded in the rule: NRC is prevented, by operation of the rule, from asking questions needed to learn the

,,;;pegx;ee ~ ~ k ..o£ ...a Jmown ..equ.i.pmen:t ..pr.obJ..em ...bes.aus.e _.f;hey --do ..not

..know +/-he .answers in advance1 In order to j usti£_y the cost of

.x.eg.u.i.r..ing the util.i ties to *.ao a safety ana"lys.i..s; -:NRC would have to already know the degree of the risk, since its cost-benefit methodology measures benefit as the degree of risk averted.

'Hence, -one -has 'to know -the -answer in order --to just:i.fy asking *the question.

3. Finally, we learn from this example the degree of the chilling effect that the mere existence of this vague, illogical, and ill-considered rule has had on the NRC staff. Here, the NRC

• TSta:f£ --was --a:frai-a -to ask ":l."ts *-i:Lcensees £or -so -much --as a safety analysis for fear that the licensees could demand a prior cost-

-~.n:.e.:f;;:l..:t ..:J;us:t+/-fj_,::.a+/-.i:on. ~y-:n.11.*e -which nas '"+/-b+/-s-:eH-ect :is clearly counter-productive to the protection of the public safety and at oaas ~ith the £undamental ~remiss of the Atomic Energy Act that public safety is the "controlling consideration." Public Service Co. of Colorado, 4 AEC 214,216 (1969).

The second example involves the agency's consideration of measures designed to reduce the risk of containment failure in a severe accident for the U.S. plants which are known to be most vulnerable - the 24 boiling water reactors of the Mark I design built by GE. NRC's most recent research, which simply confirms and quantifies what has been common knowledge for years - is 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 assessment techniques, it is probably most fair to say that, should a severe accident occur at one of these plants, the containment is as likely as not to fail. See generally, NUREG-

1150, "Reactor Risk Reference Document," Draft for Comment Feb.,

1987.

"'!Prl--or -to -the -a.cc5..iient -:a"t "'Three ""Mi'1.e -=rs-i--ana,. """NRC =i-iaa generally responded to such concerns by taking the :Position that

-severe core damage -events -"Wer-e so improbabl-e =:as -:to fue "incredible", and that protection against the consequences_ of such events therefore need not be considered. This attitude was

~--ever-e'ly criticized by 4:-he~-esldent"-s --Comml:ssion .:on ""tlle -~ccJ.*aent at Three Mile Island (The "Kemeny Commission").

After many years of operation of nuclear power plants, 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 recognize this to understand why many key steps that could have prevented the accident at Three Mile Island were not taken4 ~he Commission is convinced +/-hat .+/-his attitude must be changed to one that seys nuclear power is by its very nature potentially dangerous, and, one

.:1llust continually:guestion whether the .s.afeguar.ds already in place are --su£ficient to -prevent ,naj-or 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 "backfits" to licensed plants:

The old AEC attitude is also evident in reluctance to also apply new safety standards to previously licensed plants.

Id. at 20. See also 53-54.

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

Denton, the Director of the Division of Nuclear Reactor Regulation and Robert Bernero, Director of Boiling Water Reactor Licensing, devised a strategy of five modest safety improvements

caJ.:cuJ..:a:te.d +/-o .:reduce the .:z:i:sk..:o.f _.a .x_a:t;;rs:tr_opb.:l:p ~piati.on reJ eas.e from -1 in .2 ..cor.e ...me.l+/-s .+/-o ----1. _in .50, .a .risk -.:neduc+/-ion -0£ .25 :times.

"S,e-e -,~attached *--:sJ.-1.de*s, *".D+/-scussion -of -a *Gener].--c :L-et+/-er -on 'BWR Containment Performance," Robert M. Bernero, Sept. 11, 1986 p. 7.

The calculated cost was in the range of $500,000 to $3,000,000

--p*er --p:Lcmt. 'Thi-s s --a =trl'Vi"a1. "'Cost, "ii: -f.'S-=the~-gurvaJ:ent--to --what an average utility may pay for replacement power £or a 10-day shutdown. Compared to the human and economic costs of a large radiation release, i t is obviously tiny.

At the time these modest improvements were proposed, these

+/-o_p NRC sa£et_y o££icials were widel_y guoted .aJ.0119 +/-he £allowing lines:

• Qn.es:f:j:ons ~..exnin_g *:whe+/-her .:the ..:!Mark ..:I

.containment woula -:wi.thstana a *sever.e i:ac.c.i.aent :have taken on new importance following the Chernobyl

.aisaster, Denton saia. _ ~

"We can argue about the probability of severe core damage for a long time," Denton said. "I think the political climate is such that peop.le _ar.e :.w.iJ.ling +/-o 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 i t won't turn into the Chernobyl-type event."

"Inside NRC", June 9, 1986, pp 1,3.

"We have badgered ourselves with severe accident analysis," [Bernero] 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.l.

Denton and Bernero pushed through 1986 and 1987 for NRC to require the Mark I owners to make the inexpensive changes.

(During the same period of time the French, Germans and Swedes

went ahead with similar and in some cases more extensive backfits to their plants' containment systems, even to PWR containments which are substantially more reliable-than the Mark I's. See

-eg * ., ""Insiae -:NRC.,...,, :Jlil_y -:20 ... -:J.."9B7,, ;;p_ ::I.:) ...:r:n -:the u_s.,,. howev.er_,.

the cost-bene£it mindset contained in the backfit rule took hold.~

.:The .NRC .::s+/-a:££ ~unce.d -that, .:::iI =+/-he ~wner.s -:d+/-a -n:ot-voluntatil_:y 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: ~he vast majority of Mark L owners did not voluntarily agree to make safety improvements; Victor Stello, Executive

- Director of NRC, blocked the proposal by sending i t back for more cost-benefit calculations; and both Denton and Bernero were transferred out of NRR to _jobs where +/-he_y ..can.l'lave essential.l_y no

• influence on this decision.

'"The nucl-ear .:::Lnaustry +/-raae :pape:cs .::oeportea +/-he xo"TJ.owing on

..,.,,January ..!5..,. . J.9..8.7~

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 £rom 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 i t 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 the 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 LZ-: 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 .

improvement at any plant. That is because the cost-benefit methodology mandated in the rule has been calculated by NRC to justify no more than a few million dollars expenditure per plant, no matter-how ZJreat the risk being .addressed. "The calculation is explained in detail in NUREG-1150, Reactor Risk Reference

.:n..o:cument,. ~hap+/-er -B.r :February, 1987..,. ::ana ..::ii:s effect .:+/-s :snmmari*zed by NRC as follows:

Of particular note, however, is the fact that even gi.ven -the Ta:rge -uncertainti-es --associ-a.ted witb 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.~

What do we learn from this exam~le?

1. Once again, lacking any objective, rational criteria,

-::NRC -:sim_pJ;y ::a_ppli,es "tbe cost-beneri t T-egui-rement to considerati:on of any significant safety improvement. ---When NRC's own

-caJ.:cu--i.atiDns :show that the "Marl{ "I contai.nment *is '"like1.y to .l:ai1.

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 of why it should be appropriate in this case. That is clearly contrary to the Court's ruling.

,-a, The rule does not require consideration of on-site costs (i.e. the cost of losing the nuclear plant). See proposed 10CFR 50.109(c), 50 F e d . ~ 38112 (cols. 2-3) and Separate Views of Commissioner Asselstine, Id. at 38108, Col. 2, Sept. 20, 1985.

2. Again we see the chilling effect of the rule. As noted above, while Mr. Bernero believed the Mark I safety improvements could be construed as exempt from cost-benefit justification, he chose not -:to :press the .1.ssue :for 3:aar i t wouli:1 .cause ::f.ur+/-her dela_y.

3. Finally, application of the cost-benefit rule virtually ensures that no safety improvements costing more than a few

m.D..ll*on -uoJ.."J..ars -wi.TJ. -3Je--oriie1:eo., ~e-cause--t:he -c:a:l.'"CU:l.-ati."On *=nran-aateo.

by the rule does not justify a greater expendit_ure, no matter what the risk being addressed may be.

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 _..T°ina1. -.:ex-amplc0 .:cnn£.i:ons ;;tl:le....:con.D1,c+/- ..:be+/-w.een .+/-he _:r:ul,e ~d the 'Court°'_s .aecision. -:In *::rg7.9, "+/-he accia.ent ~at ""!I'hree :MiTe "Island

.Uni+/- .2 _in ..P.ennsy..l:v..aniaJ_e__cJls..s_e_d ~'t:t.en:t.inn ::on.+/-he _:uni1JU.e ~a£ety problems with reactors manufacturea by the ""Babcock ana Wi.lcox Coo

("B&W"). In brief, special aspects of the B&W design make these plants highly sensitive to events that would be innocuous in other pressurized water reactors. As a result, B&W plants have

- suffered a series of undercooling and overcooling events. that rep~atedly 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

continued to occur at these plants. In particular, two complex accidents in ~985, one at Davis-Besse in Ohio and the other at Rancho Seco in California, caused NRC to announce that i t would

,:maertake--to -:reassess -the -ade-guacy u£ the "basic desi::gn 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 +/-hat there .i-s ..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 0£ events .has .not .decreased as expected.

Victor Stello, Acting Executive Director for Operations, to Hal

'"Tuc"ker, -Chairman, 73abcock "&. -Wi'1.cox 'Owners Group, ~an. ~4, 1.'986, em~hasis added. The letter stated further that, in res~onse to

• :these--:c:on:c.erns, "J'QRC -woulu ~.:J:'SE.Bsess the overal1. saf-ety "Of B&W plants and determine whether the present set of requirements for

B&W :are -;J3.pproprlate -:for -the .::1:ong ~-term and lead to a .level of safety at B&W plants +/-hat 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, since the issue is precisely "the range and scope of safety measures that adequate protection requires." UCS v NRC, Slip opinion at 20. However, NRC has determined that cost-benefit 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,

Chairman, Subcommittee on Energy Conservation and Power, April 15, 1986, Question 16.

~onc3..-us1:on 1n summary, our review demonstrates that NRC's proposed rule

..:c:anno+/- :be :both .cons+/-s+/-ent :with +/-he Agency'~ -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

~gency--to *construct a ..ru~e which rationally distinguishes between 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 .+/-ha:t ..cos:t-.b.eneil+/- j.u~ti f i cation i s .being _required even when the regulatory action in question involves "establishing and

"!!enf.o-.rc+/-n:g'"".+/-h.*e ,3.~v.e1 ~:f .:la.delJ.uaie -:prote-ctinn.,.""' .:::tn ,r.i:oi-a:tion .0£ -+/-he Courtct--s "'express ~nterpretati-on of the mandate -0£ -the Atomic

-.Ener__gy -Act.* ~ -v~ , -:Sli:p --upin'.i-on c1.t 22.

NRC-nas nnce 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, i t has provided no procedural mechanism at all for decisions under the backfit rule. It has simp1¥: announced that a forthcoming revision of its internal ,/

agency manual - a document not subject to public comment or 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 rule be subject to the notice and comment provisions of the Administrative Procedure Act.

In order to comport with.the law, any backfit-rule proposed by NRC which includes the consideration of.cost nust at a minimum contain substantive criteria or standards which will be used to determine at the threshold whethe~ any regulatory action being addressed involves consideration of "the range and scope of safety measures that adequate protection requiresn or whether it goes beyond adequate protection. In addition, the rule Im.1st con-tain procedural protections which afford the_public the minimum rights of due process established in the Administrative Procedure Act.

oectfully submitted, Elly~~

- Harmon & Weiss 2001 S Street, NW Suite 430 Washington, D.C. 20009

• General Counsel, Union of Concerned Scientists 25

I I I

-DISCUSSION OF A - -

GENERIC LETTER ON

-BWR TONT1\TNMENT1':ERF-ORMANCf SEPTEMBER 11, 1986 l

ROBERT M, BERNERO, USNRC

1 GENERIC LETTER ON

• BWR CONTAINMENT PERFORMANCE THE SETTING: PLANT EVALUATIONS UNDER THE SEVERE ACCIDENT POLICY

]TATEMENT THE KEY REGULATIONS: GDC 16 AND GDC 50

• THE SUBJECTS: 37 BWRS WITH PRESSURE SUPPRESSION CONTAINMENTS THE METHOD: A GENERIC LETTER OF REQUIREMENTS TO IMPLEMENT CHANGES BASED ON GENERIC EVALUATION

2 NRC SEVERE ACCIDENT POLICY STATEMENT 1 THE MOST COST-EFFECTIVE OPTJONS FOR REDUCING JHJS VULNERABILITY SHALL BE IDENTIFIED AND A DECISION SHALL BE REACHED CONSISTENT WITH THE COST-EFFECTIVENESS CRITERIA OF

- THE COMMISSION'S BACKFIT POLICY AS TO WHICH OPTION OR SET OF OPTIONS (IF ANY) ARE JUSTIFIABLE AND REQUIRED TO.~E 111P..LEMENTED..

1 IN THOSE INSTANCES WHERE THE TECHNICAL- lSSUE GOESJ3EYOND ~

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 LffiERS WHERE MODIFICATIONS -

ARE JUSTIFIED THROUGH BACKFIT POLICY, OR THROUGH PLANT-SPECIFIC DECISION MAKING ALONG JHE LINES OF THE INTEGRATED SAFETY ASSESSMENT PROGRAM (ISAP) CONCEPTION,

3 GDC 16:

CRITERION 16 - CONTAINMENT DESIGN. u--AN ESSENTIALLY LEAK-TIGHT BARRIER AGAINST THE UNCONTROLLED RELEASE OF

-RADIOACTIVITY TO THE ENVIRONMENT AND TO ASSURE THAT THE CONTAINMENT DESIGN CONDITIONS IMPORTANT TO SAFETY ARE NOT

• EXCEEDED fOR AS LONG AS**.POSTULATBJ :ACCIDENT CONDITIONS -REQUI-RE,"

4 GDC 50:

CRITERION 50 - CONTAINMENT DESIGN BASIS. "~-AS REQUIRED BY SECTION 50.44, 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 DEFINING ACCIDENT PHENOMENA AND CONTAINMENT RESPONSES, AND (3) THE CONSERVATISM OF THE CALCULATIONAL MODEL AND INPUT PARAMETERS,n

U.S, BOILING WATER REACTORS

-1 24 BWR 2/3/ 4 WITH MARK .CONTA1NMENT 1AU .11.CENSED) 1 9 BWR 4/5 WITH MARK II CONTAINMENT (7 LICENSED)

• • 4 BWR 6 WITH MARK Ill CONTAJNMENT (3 LICENSED)

.i

6 INSTITUTIONAL PROCESS

. 1 CLOSURE "'Of -SEVERE ACC1DENT ANALYS1S rOR CONTAlNMENT NO FURTHER ANALYSIS UNLESS EXCEPTION IS- TAKEN SPECTRUM OF OPTIONS RULEMAKING 50,54F LffiER FOLLOWED BY ORDER GENERIC LETTER FROM DIRECTOR NRR OR DIRECTOR DBWRL 1 PROCESS CHARACTERISTICS ,.

- ' BASED ON TECHNICAL WORK AVAILABLE, IDCOR, SOURCE TERM, PLANT SPECIFIC WORK, NUREG-1050, NUREG-1150 .

I '

OPEN TO PUBLIC FOR COMMENT AND PARTICIPATION

7 ABWR - MARK I FOR REFERENCE BEFORE 1 CORE MELT FREQUENCY: lxl0- 4/YR A FULL SPECTRUM OF SEQUENCES INCLUDING BLACKOUTS

-* CONTAINMENT CAPABILITY: UNCERTAIN AND VARIABLE BUT ASSUME 1 OUT OF 2 CORE MELTS GIVES FAIRLY LARGE RELEASE AFTER .

1 CORE MELT FREQUENCY~ .1xl0- 4JHR IPE FOR FRONT END MAY REDUCE BUT NO CREDIT JS TAKEN -HERE

• CONTAINMENT CAPABILITY: SUBSTANTIAL ASSURANCE THAT

- CONTAINMENT WILL MITIGATE CONSEQUENCES, DEGREE VARIABLE F~OM PLANT TO PLANT BUT 1 OUT OF 50 CORE MELT~ GIVING A FAIRLY:

LARGE RELEASE SHOULD BE REPRESENTATIVE  ;;

8 HYDROGEN CONTROL

=i'RQPOSED REQUIREMENTS

• CHANGE TECH. SPEC. AT END OF OPERATION FROM 24-HOUR ALLOWANCE To*12-HOUR ALLOWANCE OF NON-INERTED OPERATION __ AT REDUCED POWER

-

• PERMIT 12-HOUR PERIOD AT REDUCED POWER WITHIN THE OPERATING CYCLE TO SEARCH FOR UNIDENTIFIED LEAKAGE

RATIONALE t DEINERTING TYPICALLY TAKES 4-8 HOURS LEAKAGE INSPECTION AND MINOR REPAIR CAN BE REASONABLY ACHIEVED IN 4-8 HOURS

• REDUCED POWER(.=:::: 33%) SUBSTANTIALLY REDUCES SHORT-LIVED FISSION PRODUCT INVENTORY AND DYNAMICS OF POSSIBLE ACCIDENTS

. ,.. . . 9 DRYWELL SPRAY PROPOSED REQUTREMENTS

• REDUCE DESIGN SPRAY RATE (CHANGE NOZZLES) TO ABOUT 10% OF

.P.RESENT VALUE

• PROVIDE AC-POWERED BACKUP WATER SUPPLY FOR SPRAY AND

- AC-INDEPENDENT WATER SUPPLY, AVAILABILITY BY REMOTE MANUAL OPERATION OR BY SIMPLE RELIABLE PROCEDURE.

DESIRABLE 1 MAKE A[TERNATE 'WATER SOURCES "AVA1UBli10 'COOL 1:0REJ)lRECTi.Y 1 90/10 MODE OF RHR OPERATION RATIONALE

• WATER SUPPLIES AND EQUIPMENT ARE ALREADY AVAILABLE FOR LOWER FLOWS 1 LOWER.FLOWS PROVIDE ALL BENEFITS EXCEPT LOW L1 T DECAY HEAT REMOVAL AND DO NOT RAPIDLY FLOOD CONTAINMENT o ASSURED DRYWELL SPRAY SUBSTANTIALLY REDUCES PROBABILITY AND SIGNIFICANCE OF DRYWELL FAILURE OR SUPPRESSION POOL BYPASS

10 PRESSURE CONTROL PROPOSED~EQU1REMENTS 1 RELIABLE CAPABILITY TO VENT WETWELL AT EPG PRES~URE LEVEL WJTH DR WITHOUT AC POWER. FOR VENTJNG WJTHOUT AC POWER MANUAL PROCEDURE IN ADVANCE MAY BE USED IF NITROGEN PURGE IS AVAILABLE 1 VENT OF 18-INCH DIAMETER OR GREATER DESIRABLE t ABILITY TO VENT SLOWER SEQUENCES THROUGH STANDBY*GAS TREATMENT SYSTEM ~

. -* BURST RESISTANCE DUCTING IN REACTOR BUILDING TO MINIMIZE COMPLICATIONS RATIONALE o RELIABLE VENTING PREVENTS UNCONTROLLED OVERPRESSURE FAILURE WHICH* CAN CAUSE CORE MELT VENTING WITH DRYWELL SPRAY GIVES GREAT ASSURANCE OF RELEASE MITIGATION

,. - 11 CORE DEBRIS PROPOSED REQUIREMENTS

• ASSURE RETENTION OF WATER AT LEAST 3 FEET DEEP IN TORUS ROOM IF TORUS LEAKS ENTIRE CONTENTS

- DESIRABLE 1 CONCRETE CURBS OR OTHER BARRIERS WHICH WOULD RETARD DEBRIS

-ATTACK OF DRYWELL SHELL 1 AVOID LOSS OF RECOVERY SYSTEMS FROM WETTING BY TORUS ROOM WATER RATIONALE 1 DRYWELL FAILURE BY DEBRIS ATTACK IS MADE LESS LIKELY AND LESS SIGNIFICANT BY DRYWELL SPRAY AND VENTING o RETENTION OF TORUS WATER ENSURES DEBRIS QUENCHING AND SHOULD FACILITATE ACCIDENT RECOVERY

CHRONOLOGY 1 JUNE 16, 1986: MEETING WITH BWROG/IDCOR PROPOSED A GENERIC

+/-ETTER, PRESCR1PJ1Y£..£01.UJJ.ON,, .:BY .BACKFJT

.e JUNE30,.1986: VERMONT YANKEE COMMITS TD £0V.. J<UNJN TO .DO A SPECIAL 60-DAY CONTAINMENT .STUDY 1 JULY 25, 1986: BOSTON EDISON COMPANY BOARD DECIDES TO FIX PILGRIM CONTAINMENT 1 7\lJGUST 19, 1985: "BWRUG -urnIT1VES 'VOTE 71) rlJND 1\'ND tONTI NOE DIALOGUE ON THIS WITH NRC, CONTACT NUMARC ABOUT BWR VS. PWR 1 SEPTEMBER 11, 1986: MEETING WITH BWROG TO COMPARE BACKFIT NOTES AND STRAWMAN GENERIC REQUIREMENTS . .

~-, SEPTEMBER 11, 1986: MEETING WITH VERMONT YANKEE TO REVIEW CONTAINMENT STUDY

-e SEPTEMBER 23-, 1986! --NRC/lD.COR MEETJNG .ON .BWR/-MARK 1 .ANALYSES 1 -.SEPTEMBER 23, 1986: ACRS SUBCOMMITTEE ON .CONTAJNMENT

.;pE-RFORMANCE TO DI SC USS ~ARPERS .ff-RRY .MORKS-HOP !RESU[T.S .AND J3WR

• coNTAINMENT GENERIC APPROACH .

1 SEPTEMBER 24, 1986: ACRS SUBCOMMITTEE ON CLASS *9 ACCIDENTS "TO DISCUSS BWR/MARK I ANALYSES AND SEVERE ACClDENT -PROGRAM ,-

• NOVEMBER 19, 1986: CRGR .REVIEW OF DRAFT GENERIC LETTER ON BWR CONTAINMENT REQUIREMENTS (TO BE PUBLISHED FOR COMMENT)

A1 DECEMBER 17, 1986: ISSUE DRAFT GENERIC LETTER ON BWR

• CONTAINMENT REQUIREMENTS FOR PUBLIC COMMENT 1 APRIL 1987: ISSUE FINAL GENERIC LffiER ON BWR CONTAINMENT REQUIREMENTS .

for the long-term management o[ its procecs for the imposition of new regulatory requirements for power reactors,* commonly referred to as ftbackiitti~g.* The Union of Concerned Sci8ntists .::ippreciates t.ht? Cummiss1on's deci!.don t.o address

~his complex issue initially in an hdvance Notice of Proposed Rulemaking rather than through <:1 propoi--;ed rule. As discussed below, the alleged "D,1ckt1tt1nc;" problem ;1as never been adequately Jefins::.-d, nei~ner th.' industry nor the Co1i1m1ssion has pr0'.r1Jed fac~.Ji:.il suµport ior '".iie existence of u ftbacKfitdngft problem, aild thf' an.::ilyses to Ja~e h.:ivL' failed to distinguish among the various circums~ances in wt1ich the problem allegedly arises, or to pr:ovide a so1.rnd anulysis that would allow the Cammi ssi on to dt?velop a m.:rna(_Jemcnt scheme that. both assures protection of t-.he public health anJ ~.:ifety .:ind meets industry needs for certc1inty .1nd cfficit:ncy.

AH.hough the Commission's /1.dv.:rnce l1otice r'efe-r:; to establishing a *process for lhe imposition of ne~ regulatory requirements for power reactors,* it Jocs not define this term.

'i:... -"~"

r' ,. ii.,.*

,r It i s c l ear f r om th e q u 0 !J t- i o 11 ~; r .:i i s 0 rJ IJ y t- Ii e Cum m i :; s i on an d from the history of the "back[iUing" dispute, however, that the problem that the nuclear indu!3t-ry, und thus the Commission, seeks to address is not limited to the development of new regulatory requirera~nts.

characterized .:is extendin 13 t-.u dl1f att.elilpt-.:; to require reo.ctor licl'nsees to m.:if...e chc1nges in their pl ..rnt, equipment, personnel, or other aspe~ts of their oper.Jtions beyond what was required at the Ume the construction pt>rmit was Lssued.

The issue~; raised by t.his effort are cxt.reml'lY complex.

':'!wy v.:iry not only accordin<J r-o ~he tyrc.' of ch.::rnge that the Co r.nn i s s s i on m I g ii t s e I. k t- o 1 1:1 µ u:; e , b u t a c co r d i n g t:. o r:. h e licensing sL:itu.s of p..:irt.H.:lllor CC'uct.or:_;, Uw ,~xtent of revii::-\1 particul.:uity with which re(Ju1n*ments hc1vc been incorporated in Comraiss1on rc~~l.:itions. It. 1~ essenti.:tl, therefore, that the Commission recognize that it cannot establish a single rule to address all af the circumstances at issue. Rather, it must exam1ne each alleged problem on its particular merits an develop an approach thc1t is .suited to that problem. The question!J posed in the Commission*~ Auvance Notice indicate that the Commission may already have recognized the need to

principles th.::it-. goVl'rn Cum1ili!;sion c1crion in each ca:.;e, and to pr op o s e a so l u t. i on t-. hilt w 1 l l m<'ct t. h c 1 0 <J i t-. i m.:.i t. e n c e cl s o ( a 11 concerned.

I. General Principles A. Under the At-omic Energy Act, the Commission Must Issue, And Tlie Indu:3try Mu.st M0et, Such Standards As Are [lc>cessary To Prot-ect- the Public Health And Safety.

The fundamental principle that governs the Commission's approach to this and all 0thcr regulat-.ory issues is its responsibility to prot-.ect the public health and safety. That theme pervades the Atomic Energy Act, and it appears particulaFlY in the provisions authorizing the Commission to issue standards and to license nuclear reactors. Under Sect.ion 1 G1 ( b ) , 4 2 lJ . S . C . § 2 20 1 ( h ) ,  !'- h e Com r.i 1 ~, s i o n i s a u t h o r i z e d t o issue such st.anJards *as r-11c Commision may deem necessary or desirable . to protect  !-.he public heal!'-.h or to minimize danger to life or propcr~y.* Under Section 103 (b) , the co~mission may not issue a reactor licen3e unless the applicant is Requipp~d to observe and . agree(s] to observe such safety ~tandarJs to protect health and to minimize danger to

(

V

~

I C

r These are t.!w principll'~ on which t.he Commission's analysis of the backfitt*.ing issue mu.st. be b.:iseu. I C t he Co mm i s s i on h a s determined th,:i!-_ a part i cul.:ir stc1nd,:uJ mu.st be established in o rd er t o pr o t e c t the p u l..>l i c II ea l t h a n d ::; a f c t y , t h u t-. s t and a r d must be met. The statute l~avcs no room for permitting anything le.ss t.h,1n t-.he dcgr H~ o[ sa[d y protection required by*

Commission stanJard~.

l. Cost-Benefit B.:ilancing Is Prohibited As described by the Advance Notice, the proposal of the Atomic Industrial Forum would permit. reactor licensees to avoid meeting new safety requirements or making other improvements necessary to meet Commission standards if the improvement *js

[not] justified when considered over the rema1ning life of the facility." In other words, AIF would have !-.he Cammi ssion consider whether tl1e costs of meeting s.:i[ety stdndards outweigh the benefits of enhanced prot.ection of the public health and safety. As the Commission case law has long and consistently held, the Atomic Energy Act. does not allow .such a cost-oenefit analysis:

\

(....

)

,"' .. ;...r'~,j .

\..,'

f Main'-:,, Yankee i>ow(*r c~Hlll.1~ U*1.1in** Y,111kt.:<' ,\t.<,mic Powvc Stc.it-i_un),

ALAU-161, 6 ,\EC 1003,. LUIJ7_ ( l'l / J). l As we had occasion to ~tr~ss many ycnr3 ilgo, the cost/benefit- bal.:rn,:in*J procc:.;:.; .:it t-he root of decisions int.he enforcC'menl of the llutional Envirorn~ntal Policy Act play~ no part in the enf0rcement o( the .s.JfL*t.y :;~,11Hi.:1rd:; laid down I.Jy the Atomic Enc~rgy /\ct..

public Service Company of Nc>w 11.:imp.shire (Seabrook Station, Units l and 2} i\LJ\B-G23, 12 rrnc 670 (1980).

The cost or difficulty associated with implemen~ing action needed to ensure safety are not relevant considerations to this agency.

Commonwealth Edison Company (Byron Station, Units land 2)

DD-81-5, 13 NHC 728 (1981).

~hese interpretations of the Atomic Energy Act are consistent with and required by applicaule case law arising under o the r s t a . u t es . Al t Ii o u 'J h the µ a r t i cu la r de c i s i on d e pends upon the langu.:ige of the st.,1tu*e in question, the Supreme Court. 's decision in Am0r i Ccln 1't'Xti lP M<1nuf."1cturerr; In.st. i t.utc Inc. v . Donovan, 452 u. s. is instrucUve here. The 490 ( 1981) textile industry challenged u cot. ton du st-. !;t.andard promulgated by the Occupational Safety . in,i Ilea 1th t>.tlm in i 0 tr a t j on on the ground that the health benefits of the standard did not sufficiently outweight the costs of its implementation. The

-G-OSJI,\ to establish .J. standard *which m1)!;t adequately a!;.sures, the extent fe.:isible,* that. t.hf?re would be no material impairment of the health of af(ecteJ employees. The Court

~ _- :* ~ -

~

"'  :: '~ J.

refused to re.1d the word *feasible* a:; incorporating a cost-benefit balancin~ r~quirt*men*_, holding instead that the q u es t i on wa .s , w h e th e r i t wa ::; t ~ c Iino 1 o <J I c:: a 1 l y c.1 n d econ om i ca 11 y possible to implt:'ment. tile standard. Jn the Cuurt'~ view, Congress had already made the cost.-bcn~fit deci3ion when it de c i ch> d that wor k er s wo u 1 d be pr n t e ct-. e d i f it wa .s r o s s i bl e to do :.;o. In u d d i t 1 on , i n 1 any u d *:J e d i r C.' ct. l y .::i pp 1 i cable here , th~

• court neld th.:i~-

i-Y hen  ;:o n gr es s :1 a::: i r.-: en (Jc d .._!i .:1 ~- an CJ gen c:; en g .:is e : n cost-ocnef1t analysis, 1~ ha~ clearly 1ndicat.ed Gue~

1ntent on the face ~L .. he ~ta~ute.

J. <H. .:-..ccord, Lead :ndl:s::-:p~; ,\:;soc~,1~.1on, -.. -,:- ._  :.J.-i-c: *...

(J.C. Cir.), cert. denied, U.S. 101 S. C t . ~ 11930)

T n e i s s u c pr es en t e d by t- he ,\ t om i c En e r <-fY !, ct. i s far s 1 fi1 pl E: r th.:in '-.hat .:iddresscJ by ~he :_;upre1.ie Court. The Act requires the Car.mission ~-o .::issure protec~ ion of the public heulth and safety. I t con~- a i n .s no re fer t' n c e to Eca s i b i 1 i t y or to any In p.:irticular, it contains no reference to any sort of cost-benefit bal.:rnci ng. Moreover,*as the Appeal Board has recognized, the legislative hi_story_ contains no indication that the commission '~ .::-. _ ... .-

'\...

• *. . :~. - ; * * * * .1 *.' - -. ~ ,. I I * * * ~ * - l * ' ..,-;, .... ":'.'-

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• r may undertake any_ such balancing. Maine Yankee Power Company,

standards on th~ ground u( co:..;t.. l~itltl'r the ceactors must provide the prott>ct.ion::; r'-"'~uircJ by the :.;tandards, or they may not be operated.

2. Reliance Upon Probabilistic Risk Assessment Is Invalid In addition to raising t.he i::;sue of cost-benefit balancing, tbe industry proposal would implicitly require all *backfits" to be justifil,a on the basis of a qu.:rntitative probabilistic risk assessment (PRA). TliPse alleged indications of overall risk would be coupled with cost. projections to create a seemingly precise basi~ for dPtcrmining that a backfit should not b-e r eq u i r e d .

AIF's pr0posed requHement t.he the NRC "ju::;tity" each b.J.ckfit by considering the remaining l1fc of the faciU::y ens hr : n es PR A , be c ..1 ,1 s e t he n e c ~ s s a r y a r:i a 1 y s i ~; i s pr es u ma b 1 y bas e d on t h e du b i o us as s ump , i on th a t. the pr ob ab i l i t y of an accident. is less when the rer.1zuning plant life j s shorter. It would also have the effect 0( adopting a lower standard of safety for the olde:,t plants -- precisely tho.c:;e most in need of up<3rudjng.

The fact is th3t these complex computer analyses, which are based on thous~nds of arbitrary and unverifiable assumptions, can be ~eliberately abused to reach a predetermined result.

These point.shave> been mcidL' t;o many time~ by tt*chnical experts, inclu<ling those on the /\Jvisury Committee on Reactor Safeguards, that one can only conclude that AIF's willisngness to rely on PRA as the determininu factor in backfitting decisions is .:i Jc>li!:.H.>rate M.tcmpr to prevent any more backfit.ting.

In September, 1982, ACHS meml>ers Myer Bender and Jeremiah J. Ray (the current Chairm ..rn), advised the NRC:

There is no way in which the current proposed safety goal policy will serve any useful public safety purpose as long as its main assessment basis is PRA.

It is very likely to distort the significance of important public safety matters, and it has already diverted the attention of knowledgeable personnel on the NRC Staff from important phys1cal pl4n= pronlems to*studies of issu~s being analyzed on the basis of a vacuum of statistical Jata.

ACRS Repor~ on ~he Draft Act.ion Plan for Im?lementing the Commission's ?ropascJ sa~e~y Goals for Nuclear Power Plan~s, Sept. 15, 1982, Additional Comraents by Members Myer Bender and Jeremah J. R.::iy, p.3.

The use of PRA for regulatory purposes is defensible if event sequences and relatrd probabilities are well understood and the consequences to public welfare can 00 clearly defined. The PRA methodoluqy now in use d o es not me e t t h C's P con d i t i on~., .

Id. at 5.

be on

I l f I 1 Because, as Bender clnJ Rc3Y point out, a[; an indicator of overall safety PRAs are largely a sham, backfit decisions cannot be based in whole or in part. on PRAs.

Ult.im.:itc>ly, the Jct.crminat-.ion of what ::;tandc1rd::; must be met i n o rd er to pr o v i de .:i r ca s on ,1 b 1 c us !rn r ,1 n c e th at_ the p u b 1 i c health and safety will be protected com0s down to the reasoned professional juJgment of the responsible offici.::tl. PRAs serve only to obscure thclt fact and to create an aura of false assurance. They must be reJect.ed as ba es for determining whether NRC safety requirements have been met.

B. A Backfit Provision May Not e Used To Subvert The Reouiremen~s Of The Adm1n1strative Procedure Act.

The Commission may estclblish governing stclndarJs and reach decisions in on~ of two ways, through rulemaking or adjudicati0n. state of Minnesota v. Nuclear Rc~ul?tory Comr.1ission, 602 F.2d 412 (D.C. Cir. 197'J). The Comraission exercises its rulemaking authority to establish nuclear reactor safety standards, and licensees may avoid those standards only*

by obtaining a waiver under 10 C.F.R. § 2.758. such a waiver request is subject to public scrutiny in an udjudicatory proceeding and thus meets the requirements of the

- Adm i n i s tr at i v e Pr o c e du r e Ac t ~ * * *. ,J: ._, .- ,:_ .. _

".;:r- re 1 -* * **:., *;- ,* , - -

• ,. .,\./,"::f;, Any ba_-~k_fi~ _rule rnu_s:- si:milarly m,;~t- t_h,is requirement . . _If *;.:.\/L(:.

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2':**:,- *. *_ *.:-*-:-- :.!--;'*the commi ssi o*n 'establ ishes._a.' safety standard, a licensee **may <,:(-s~k...tJt';:

, -:_ .. :* ': -~;*tf.i/! ~- ~- ~ *; -., -:~~ _;_*:=~ *-):': - --_ ~ * -.. - -, ~::'*:~~-~ _; . - -_- - * - -~ ~~~.~~ii'-:r*:.-~:.-r' ** * * * ~ *- - * ~,*-~* * -~ - ':--~-~~~~1r~~:

• .:. ._ ;_-avoid it only uy obt.aining a ~p<'cific**exemption int-he new rule.-:~'..;,~-'?'.~:

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I J II. The Problt'm A. General - The Need for Clear Dt*(inition and Distinction The Commission has not defined the problem that it seeks to address other than to refer t.u t.he imposition of new regulatory requirements for power reactors, while the i11dustry hopes to obtain a rule that will govern, and presumably limit, any changes that mjgllt be sought in plant, equipraent, personnel, or other aspects of operation after the construction permit has been issued. These are very vague concepts that require reference to f ,'1 ct s i n or d Pr t- o Jeter mi n e ju:;~- what. , i f anything, needs to*b~ done ~o improve the regulation of nuclear power while prvc.ectin.g the public he.1lt.h and safety.

'here is nu Joub~. tllc1t the Cummi::;sion h.:1:..; rcquir~J reactor 11 censees to 1:1ake a nurnlJ1_,r of cll.:111ges in their plants and operations for various reason~, over t:he year!.>. Prominent

('Xamples includ,~ upgradin<J fl,yuired c1s a re.sult of the lessons learned from the accident ~t Three Mile Isl~nd, extensive improvements required to meet the environmental qualification requirements long embodied in General Design Criterion 4, and

I Most of NHC's rull's are very V<l 1JllC'. Many consist of little mo r e th an p l a t-_ i t u des : t h o u :J ha l t_ be pr o t e c t I? d a g a i n :; t f i res ,

thou shalt have a reliable system for decay heat removal.

There is often very little pre-operational review of the manner i n wh i ch t he r u l c s w i 11 be m<.' t. Licen;;ees' commitments are accepted as a basis [or licensing. L.iter, after an incident at some plant, or through th'-~ r<.>:rnlts of re::;earch, the llRC may learn that one or many plants are not adequately protecte~

against a certain hazard. Changes must then be made in order to meet the minimum requirement of the existing regulations.

T~is is not, to use the Cummis!.iion's language, *imposition of new regulatory requirements;~ it is necessary to comply with the applicable rules that the licensee~ were_already thought to have met.

Robert Minogue, now the NRC's director of research, explained in a 1979 internal memorandum how this situation came about when the size of operating reactors went from 60 megawatts to almost 1200 megawatts in little more than a decade:

I

• safety stand,uc.ls, or to comply with newly promulgated safety standards is not at all unexp0cted. To the contrary, it constitutes, in effect, the tradeoff in return for allowing the Industry to build large reactors that w0nt far beyond the true maturity levi2l that had !Jeen rcachcc.l by the technology. Having sought that rapid growth, the inJustrJ is now simply responding to the rea.sonably forsec.1bl12 consequences by making corrections in systems ancJ operation~ that were not adequately understood at the time ~he original approval was given. Thus, there is a s e r i o us q u es t i on a s to .,, li ,.; t-. h er c1 ny o f t he po s t- c on s t r u ct i on permit or pos:---0perat i ng l i cen:;(' ch,rn<JC:, that. h.:ive been required by the Commission con:;titut-.e :.;ome JegreQ of overregula~ion not necessary to assure reactor safety, as the i n du s t. r y wo u l d : , ,J.V e i t , o r w ll <.'th Pr I n stead t tie y :.; i mp l y constitute the natural maturing of ~he safety regulations to catch up with the *unduly r.1pi j push" to larger reactors.

Indeed, the most striking a8pect of the drguments that have been presented in support of "backfit reform" is the failure by either the industry, the ~me Staff, or anyone else, to demonstrate that a single backfit was unnecessary. According to chairman Pallidino's letter of September 29, 1983, to

.,

• l '

requirements. un de r t h e ex i ~ t i 1113 pr o v i ::; i o n s o [ 1 O c . r' . R . § 50.109, licen:.;ees have had the opportunity to conte:;t_ any backfit, and t.hey could haVE:' [orc~d tile ,St.:i[( to meet. wh.:it the Commission itself has recognizeJ as "il relatively hi']h standard.* 48 Fed. Reg. 44217.

Accordingly, it is extremely doubtful that there is any need whatsoever to place any substantive limits on backfit requireme*nts, as the industry would do. If previous backfits have not been contested, and no unnecessary backfits have been identified, there is no ba3is for placing new limits on the institution of backfit requirements.

This does not mean, however, that the management of backfit requirements by the Staff cannot or should not be improved. If 1 i c ens e es r e c e i v e cJ 1 f fer c, n ~ and il t t i III e :, con f li c t i n CJ s i g n a 1 s f r om d i f f er en t. o r g a n i z c1 t i on s il n d l e v e 1s o f t h*c s ~- a f f , it no doubt confuses their operations, and it may both re~ult in unnecessary costs and be detrimental to safety. Mc1nagement should be made more efficient, and the Staff shoulc.1 be made accountable for its positions.

B. Breakdown of Backfit IDsues In order to assist the Commi:;sion's analysis, UCS has

,.- -~~-_:broken '.down t-.he potential .1rec1s in which post-approva~ changes

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All b.:ickfit.s full into onl' oC two c<1t.e9orie:...;, (u) those in which t.he backfit involvp:_; a IIPW safety safety ~;tand,.ird that i n c r eases the m;J. r g i n o f ::; a [et y beyond wh c:i t. w r1 s r eq u i r e d when a reactor was licensed, and (lJ) tho~;c in which the backfit is necessary to restore t.hC> dLJrl'~ of sa[et.y that the 'reactor was believed and intended to provide when it was licensed. These are described more fully below. The difference between them requires distinctly different treatment.

a. New Rule Backfjts The commission's regulations, prim<lrily 10 C.F.R. Part 50, establish the safety standards that must be met by the nation's 11uclear reactors. The~e scandilrds are adopted through a formal rulemaking process, in wl11d1 t.lw public has Zi.n opportunity to comment pursuant to the pr0vis1ons oE the Adffiinistrative Procedure Act. These rule:., ,He the l.Jasc-line on which reactor safety is determined. The public has the right to expect and to demand that these standarJs be met.

Over the years, as d r~sult of experiences such as the Thtee Mile Island accident or of analytical or methodological improvements, the Commission h,1::; founu it necessary to change these standar~s, which it h.1.s done through rulemaking

1 **

underlying st,1ndard by which till' safpty oE the nuclear reactors must be dete~mined. As~ r0sult, they mu~t ~e subjected to scrutiny by the public, and pdrt-.icularly by the industry, whose burdens will be incre3sed by the new rules.

For the purpose of this discussion, these backflts will be termed *new rule backfits.* Their distinguishing feature is that, as applied to existing reuctor~, they are in addition to what was required at the timl~ the reactor wa.:::; licensed, and they increase the de':jree or margin of safety beyond what was required at that time.

b. Cut.ch-un Backfits As previously noted, the vast maJority of what have loosely been termed ~b~ckfits* are, in fuct, changes that are needed to bring a reac:-.:,r into cor.ipli.:rnce with regulatory standards after it has b e en de ~ e r m1 1w d , i or var i o us r ea .son s , t*h a t the fa c i li t y did not actually provide ~-he level o[ safety required by the regulations when i t WdS l1c0nsed. Their purpose is not to make the reactor sa.Cer, than it n.:id to be when i t was licensed to operate, but to upgrade t-.be reactor so that it will provide the same degree of safety that the Commission thought the reactor would provide when the Commission \approved its license.:

.*.>, *. <_-

• For the purpose of th i s d i s cu .s s i on, - we w i 11 refer to these

I

• I.-

ope r a t i on , t 11 a t it i s not a :J s u f c a s t- h e S ta E( be l i ~ v e cJ when it approved the liccns1.' application. Some examples illustr<lte this sort of development:

(l ) TMI Accident Fixes. Much of the industry's discontent arises from the large number of improvements that the staff haG required since the Three Mile Island accident. The va:3t majority of ttio::,e fixes, however, were necessary to meet the safety standards embodied in the Commission's rules before the accident and at the time most, i [ not all, operatin<J reactors were licensed. The stuff beg.in to require till" fixes becau.se the accident demonstrat<:>d '".h,1t. tr.e [Jlant3 were not as safe .:1.s l1ad previously been intended and believed. Thus, these are not new s.1fety requi re1r.en,.s, but nc.1tcll-up:,* ncce:.;::.:ar/ t.o meet.

the Commiss1on 1 :J eh1stin<:1 regulations.

One 1:x.1mplo of t.he po::;t-TMI car.ch-ups is !-_he staff requirement that licensees connect pressurizer heaters, pilot operated relief valves, and other safety equipment to on-site power :30 that it will function if off-site power is lost. The staff's determination that this was necessary to meet preexisting safety standards appears* in NUREG-0578 at page A-3. This and other.. _catch-ups are t_he sort of

I I

-1 7 -

(2 ) r'ir<-3 protection. Gcner.::il Dc~i 1Jn Criterion (GDC) 3 requirea t.hat. !':ht~ rt*,1chJr be.* .:idt'quatcly protected against fire, but does not-. contain c1ny sp<.*cific requirements. The staff approved many plants under this vague requirement, and then the Browns Fc*rry Eire proved that the plants were not as saf~ as they were supposed to Le. The plants did not providl:" the <<Jegree of protection intended by the regulations, so the Staff began to require plants to upgrade tlw!3e prot<.~ctions so they would prov1de the degree of safety that the commission believed the*y provided when they were licensed.

Ultimdtely the Comm1ssion issued Appendix R ~o Part 50 in order to establish detailed guidelines for compliance with the fire protection rcquiremt~nts of CDC 3. This is ..1n examp.ie of <1 new regt, Lat ion !-.hat is not a back fit becau.3':'

its purpose is simply to provide the detailed guidance necessary to meet the standard previously established in a more general fashion by GDC J.

2* E11vironr.1ent-.al qualification. As with fire protection, GDC 4 h.:i.s lon,3 required that. equipment be qua l i f i e d to w i th.stand t. ll e L' ( ft~ ct. s o E i1 n a cc i dent and continue to serve its safety function. Since 1977, it has

same. When'the St.:i[f or tliP Commi.s.siun have required improvements in enviromcntal qualification at existing plants, they have simply required the licensees to provide the degree of protection that the Commission believed existed at the time t.lJC' plant was lici;nsed.

c. The O~ckfit oaselin~ For Each R~actor I n du s t r y ,rn d s t a f f d i :, cu~; .:, i on s to d a t e ha v e s u g ') e .s t e d th a t the existence of a backfit should be determined based upon changes from dpprovals con~a1ncd in th~ construction permit, and i n st a f f p .J per s ~ u ch il ::; the Sr and ,1 rd Rev i e w Plan and the Regulatory GJides, as well Q~ in the u~erating license. These posi t1 ons i gn()re both tl1l' n.1~.ur0 of U11.; c1pproval gran':ed by !:.he cons t r u c t i on i: L' r mi t a n d r. he 1 1.: ya l  ::; ta t u s o f st af f po s i t i. on papers.

The approv~ls giv~n in *he construction permit ar~ so vague that it is virtually impossible to det0rmjne even how the reactor is designed. To impose a backfjt requirement upon any changes that the staff m~y tequire after the construction permit is issued would be to place the regulation of nuclear reactors in the hands of the industry, and particularly in the hands of reactor designers. ThQ first time the staff reviews the design in detail is at the operating license stage. ~That ,: '.

I I I construction permit st.age, which t.lwy h..iv1~ consistently refused to do.

Arguments that the SRP, Rc<Julatory Guides, or other Staff positions should be viewed ,is the baGC'line from which the neeed for "backfib,* should \Jc.> judged ignore the fact thc::it these documents are not regulations.- They have ncve"r been subjected to public comment, and they are not l? i ndi nq 6n ci ther the Staff or the licensees. The re9uirement is not that these documents be complied*wHh, but that the regulations be met. That requirement governs even if the licensee must undertake extensive impr0v2ments not reflected in the SRP in order to comply.

Al:.hough, for ~.hese reason:._;, chan*JPS from staff positions in the SRP or 11:-!icr inform.Ji d0c~1ment-.s canno~ b~ con:;1cJered t-.o have any dist.inct leyal sta,.u.; u:3 back(its, the:/ inay cduse practical diffi~ultit."'.S [ot l1c1.'nsees wllo were Collowing

• previous st..:iff posit.ion.:..;. or Luur.se, th0 licen;;ce:..; huve the choice of disagreeing with t-.he staff and attempting to convince the licensing board th,1t. their act.ions comply with Commission regulations even if they do not meet. the latest staff

I are reasonably justified. A l t. ho u g h t h c ~; e ch an g es a r e no t backf i t.s because they do not i nvo 1 vc chan<J<:>!.i in t-.he Commission's safety r~gulations or in equipment approved in detaD by the operating licen!3e, they could be !3llbjected to the sort of proceJural mcch.1ni!;m di:,cw;~pd at p<1 1Jt.'0 20 - 26 below as a means u f .1Jd i nlJ C('t r.a int- y t.u t. IH' *J!Jf'r .1 ~- i n*J J i c~n:;e review procc>ss .

.stetff changes and r<:.*sult-.in<J licr~nsce appeals, c:l.lonrJ with all r el e v an t do cum en t.1 ti on , bc i den ~ i ( i e tJ and r e v ':! c1 l e d t o particit=iants in the operatin<.J licc>nse hear1n*J.

In sum, ~.he uc1:.:;t*lln(::; [rum which l>ackfits IO,tf b~ Judged are the Corr.mi:ssiun':s rl' J:1l.1tions and ~he plant.,

1 cqu1prnt?nr-, .:1nd It-. may be r ea son ab l e to st r e c1 m1 ; n ,i <111 d r .:. t I on .-.11 i ;: l' :..; ~- c1 f f ,J ,~ c1 l i n gs w 1 t ll licensees during con.st.ruction and during the operaf_ing license r e v i e w s tag e , bu t s t a f f ch ,in 9 es au ri n g th a t p e r i o d a r e no t backfjts.

I II. Solutions Industry and staff propoG<.1ls to date hc1vc had both a procedural and a substantive component. The two must be

• • I although it is di([icult to tell since the industry c on s i s t en tl y [ a i l s t o i den t i ( y i ts !J p e ~ i f i c pr ob l ems.. Th e essence of the procedural component is to- assure that the staff manag0s the implementation of backfit requirements in a manner that assures that the r1.~qtli rem~nt~; are well considered and justified, minimizes dupli°cative or conflicting instructions to licensees, and minimizes unnecessary ~urdens upon licensees in implementing the bac~fits. UCS generally supports the concept of this sort of procedural reform, but it must be done carefully in order to assure that it Joes not deter or delay necessary improvements, µart.icularly if th~y are catch-ups necessary to rey.:iin safety µrot1. 0 ctions thilt were once thought to be met.

The v.:u i ous proc2dural pr0poi;.:l1s ,. .ind related 1 :..;sues follo*"':

(1) Ikq:.:.ire the C(Jn1rn1::;sion !,tuff to Justify all backfits. UCS :..;upports this requirement. in principle since it

• would contribute to rational decisionmaking, which is sorely lacking at the agency. In the case of new rule backfits, this would not be a new requirement since those must go through rulemaking in any event. This requirement could present a problem with respect to catch-ups backfits by placing an excessive burden on the staff. However, if the Staff has a

(2) Require all bockEit requirements to be reviewed and approved by a single office or individual at the NRC for each plant. The purpose oft.his requirement would be to minimize the confusion in dealing with t.he staff and to assure that new staff r~quirements are coordinated so that they do not overL:ip or conflict and U1.1i--. t-.hey cull L>e implemented efficiently.

Again, ucs underst..:rnus the neetl for such a requirement and would not oppose it. It is essential, however, that the process be open to full public scrutiny, including acces:.1 to all backftt proposals to be reviewed by tl1e central organization, ~o all staff-.1ppl1cant correspondence anJ all staff documents, and to all stdEf-applicant meetings, with nuticc sufficiP11t to permi!: tho public an opportunity to at~_end. The µublic ~huulrj also have access to det~iled minutes of all meetings of t!1is ccn~r<ll organization, whether internal

• or with licensees. All of these provisions are appropriate as

.:i matter of public policy. They are also necessary to prevent undue power from being concentrated in the hands of a few individuals hostile to safety improvements, as has occurred with the _Committee to Review Generic Requirements {CRGR) * . *The

J

• long-term a ppr oc1ch to the b~lck ( i tt i n<J i ::;s11 e must remedy these serious deficiencies.

(J) Provide for some form o( internc1l administrative appeal above the stuff level that initially imposes a backfit r eq u i r em en t . UCS supports thi!j *~once£-'~, although it r.iust I.Je open to public scr~tiny, with n~Eice of all objections to proposed back.:.it..::;, anJ opportunity to com1i1P.nt, and the right to attend all st<lff-applicant m~~tings on the subject.

(4) uo nJt Jou~le-binJ licensees by orJerin<J them to begin one sort of ..ictiun to i1,1pl1~ment: d catch-up (or, less likely, a back.fit) .::ind then ult.imatcly settling upon a di ff ere n t sol u::. i on to t ~le pro o 1 em. This may occur because takes some tim~ for ~h0 Staff to develop solutions once catch-up probh*ms ar8 di :;cover Pd. .s i nee ne i U1t!r the staff nor the licensees <.1re willing to sllu:-. down reactors Juring that period, they adopt. interim .Jolutions that sometimes are not the same as the solution that is ultimately developed. The industry complains that t!1is unreasonably raises its costs and penalizes those who take prompt action. They seek at a minimum the right to rely upon such interim solut.ions if they provide protection equivalent to th.1t. provided by the Staff's ultimate

interim operation. 1( they clwor;e t.hc lc1tter course, they should not be he.:irJ to compLlin w!wn t-liei r interim me.:isures, taken at their own risk, arc not acc~pted.

On the other hand, we recognize thL*re may L>e practical difficulties that deserve attention, .:rnd there is nothing inherently unrea~onable in p~rmittin~ alt~rnatives that provide equivalent protection. The difficulty is that the system begins to become unmanageable*Js alternatives proliferate, it is difficult to determine equivulcnce, and staff-applicant equivalence ne13otiations tent.I t-.o become hidden from the public. Accordingly, UCS believes that the RJouble-binda issue should be hanJled as follow:,:

(a) Only a very narrow eyuivalenc~ cest should be allowed. The question sl10:.ilcJ no~ be v,111ether the reactor with the alternative solJtion 1s ~s Jafe overall as a reactor using the Staff's solution. It is essentiully impossjble to make such a comparison in any reasonable_ way. Rather, the test must be whether the alternative backfit provides the same specific safety function and achieves the same specific safety goal as that provided by the Staff's backfit.

(b} The alternative should be specifically reviewed and

-2S-en v i r on men t a l q u a l i f i -.: d t. i n n r u l e ~; . It is al~u consistent with licensee schedules and actions .since the very neeu for this deter mi n at i on a r i s es [ r om t lw f d ct th a i- the 1 i c ens e es began implementing alternatives before the solution was ultimately arrived at l>y the st.1ff. 'l'hus, their alternatives c.:in be included in the rule1;1.1kin9 packa<Je alon<J with the staff's proposal so that all are decidt'd upon_ in tlie same proceeding.

(c) Licen:..;ces could avoid the b.1ck[it by showing, under 10 C.F.R. S 2.758 or a similar provision, that the purpose of the p.:1rUcular backfit does not apply to their facilities. Again, the decision would be open to public scrutiny and would have to be .re.1ched on a ra~ion.:il and Justi[iuble bc.1sis.

(4) Per~it re<l.sonable scheduling of backfits or catch-ups consi::;tent with operational need;.;. Here, the industry seeks to avoid unplanneJ shu~downs and to implement dny upgrades during planned outages.

The solution to this problem is fraught with logical and legal inconsistencies. In principle, when the Commission decides to adopt a new safety st~n<lard, it has determined that the new requirement is necessary to protect the public health and safety. Similarly, any catch 7 up backfit~ -are necessary to

(prouably all) plants beforl' it w.1s cert-ain t.hat they were safe. Thus, logic and reason dictate that all backfits should be implemented immediately, regardlc~s of how this might distupt reactor op~rations. I f the b .:i ck f i t :; a r e ii e c e.::; s a r y to protect the public health ~nd safety, there is no excuse for delay.

History dL*1;ion:itrates, however, that the Commis::;ion nimply will not shutduwn reactors in these circumatances. To the contrary, i-f for.::ed to accept this logic, the Commission would probably stop requirin~ backfits at all. In this conflict.

between protecting the integrity of the Atomic Energy Act and achieving increased protection oE the public health and safety,

he !utter must prevail. UCS believes, therefore, that the Commission 9 hould adopt a rc,a~onable vrocess that ~ill allow

-.he Comrni.:.l::;ion t.he scheduling flc>xib1lity th.:it it believes is necessary to implement b<1ckfils. ucs proposes the following:

(a) For the reasons di.scu.;.sed above, all backfits must be ir:iplemented immediately unll?s:, ,rn extended .schedule j.3 permitted as set out below.

(b) Justification.s for the Gafety of continued operation

J\ :* .....

av o i d t 11 e d i s g r a c e f u l con t i nu o 11 !j n I) n comp 1 i a n c e s i t. u a t i on th a t the commjssion encountered \vith re.spc>ct-. to environment.al qualification, as reflectpd in CLI-00-21.

(i i ) The justific.-:itions must provide a rational basis for a written staff determination th,1t. the reactor ciln be operated safely pent.Jing completion of the specific backfit.

Generally, in order to meet t-.hi.s test:. the justification must demonstrate that the purpose of the backfit is being achieved in sor.ie other way during tile interim period.

b. The Substantive Component

~he subsr,:rnti ve component of b.:1ckt i t reform as propo~ed by the industry involves establishing a restrictive 3tandard that backfits must ~eet before they may be imposed on reactor licensees. Th~se pr~poseJ re~trictions dre generally two-fold. Fi rs t-_ , t iw y \.;o u 1 J r e4 u i re t Ii c.1 t. the lJ a ck [ i t "w i 11 subs:.antially enhance public health c:rnd ~,afety a.s c1 result of i r.iproved overall safety," ( lan 13ua<Je proposed by the i\tomi c Industr j al For um) . Second, thC'y woulJ require some :.rnrt of cost-benefit analysis under which the 11nqu<1ntifiable degree of additional protection that would be provided by the improvement must be compared with, and must exceed, or even substantially

Instead , they sh o u 1 d be 1 e ft to t he t'::; t. ab l i shed remedy o f attempting to de1,10nDtrate undi*r 10 C.r'.H. S 2.758 that the purpose of tile backfit does n*ot applf to their facilities. The burden of demun:;trating that th~ir facilities do not need to comply with the requiremPnt mu::;t. be pL1c~~d upon the licen::,ees.

In t.hc> first place, th' ~t-.1[f due~ no::. have lhe re.source!3 to carry the oppusite burden with respect to every reactor, particularly .:.t(ter the Staff h.:is already curried the burden necessary to support promulgation of tl1.e rule in the first pl.Jee. If tlw rule survived indu:,try comment and .scrutiny, it becomes ::.he individual licensee's rc-spnnsib1lity to demonstrate why it should not. have to comply.

There should be no need tu e::;tablisil i.l new administrative r.icch.:in i .sm :- o 1 ':lpl emenr-. ,_ .1 I. :,

')

~, i c e n ~; e e .s "'o u l d s i mp l y

~eek d licen~c <l@endraent to permit implementation uf their al~ernative approaches. They would se0k d waiver or excepcion to the requirc1:1ent under 10 C.F.R. § 2.758-or a similar provision dev~l0ped specific~lly for tl1is ~ituat1on,, and the request would be subject to pu~lic scrutiny in a license amendment hearing.

would be avai l.:1ble upon ,:1 showing that-. equiv.1lent protection was provided through a spPci fie altern<1t.ive. Fourth, the determination would be subject to public scrutiny under the provisions of Sectiun 1B9(a) of the Atomic Energy Act and the Administrative Procedure Act.

(b) If the'! upgrade is required to meet preexi::,tin<J regulatory standard~ - a *catch-up* - no new substantive standard is permissi~le since the very purpose of such an upgrade is to m~e_t the safety st,:rndard that the plant was

~uppased to m~et in the firut pl~ce. Thi::, is the protection required by the Commission's regulations, which were subjected to the rulem.:ikin<J require1:ien~_s o( t:he Administrative Procedure Act, .:ind which ,nay 11l>':. !Jp ch,1n!Jed wit.bout 1Joi11g through r u le m,1 k i n lJ

• improvements in the L~cil1ty ~J some utand<lrd of substantially increased protection, 3S Alf would require, is irrelevant in this context. The baselin~ is not the safety assured by the facility as designed Jnd 0perateJ, but the safety required by the regulations. That degree of safety must be regained if it is lost or never existed.

II I. Response:> to t-lle Co1r,m1:;sion':, Q1H*stion:,

Much of thl~ prev1o*u:-; Ji:;cu:,:.don rv:;pond:; to th(! particular questions r~i.scd by t.he Commission i11 it:-;; Advance !Jotice. For clarity, however, ~e ,1ddre:J:., c.:ich of those quc3tions here, with references to r-.hat discu::;silln a.s appr1Jpric.1tc.

1. How should "b.:ickf1tting" be d,~[incJ?

Th i .s is .:i n 1 mp o r tan t q u v !, t. i on s i 11 cc the i n du !; t r y tl n d , un t i l now, the NRC h.::ive L.ii leJ to di~;t-.inrJuish bet*t1<?en th~ Vorio*us situations i11 which changes may be required or to develop solutions tailored to the situations. While we appteciate the concern apparently reflected in the Commission's question, we believe that arguing over the definition of "backfit" may rlegenerate into a semantic game in wtiich substance is overlooked. Thus, 111 our view the Co,mm1ssion :,hould define the t ~ r m cs s en t 1al 1y .:i s I t .:i 1 r l~ <.1 cl y h u s a t l O C*F. R. § 72 .42* That

~ectiun, as .::ipplied tu reactors, would read c.1s follow~:

'[D]ackfit:ing' 1nenns the addition, elimination, or modification of structures, systt~m.s, or components of

[ a reactor] after :-.h<? 1 i cen.sc h.:is been i s~ued.

I t would also be re.:i..,onabh... t:q add cht1nges in the operating organization as backfits .

._-,*.* The point, however, is not how backfits should be defined,

• ~!. ....

t- t* ' *

• *-1 ,.. ~

a. Managem~nt pruc~dure!J gov~rning backfitting requirements mat apply to all aspect~ uf reactor design, construction, or operation, including propo3ed training and staffing changes. such m,rnagemen t procedures, and p.:ir ti cul c1r ly any attempts to limit Staff or Commi~sion dincretion, must not apply to propo~:;0J inform.:ition requL..,!Jts or requeGts for analysis or tests, or the like. These reques~s are vital to the Staff's and Commission's ability to keep abreast of developments and to be knu~ledgabl0 of potentiJl safety problem~. The SLlf f need:.;

the i-nf or mat ion that is obtained r.hrough .such requ~sts in order to Jetermine ...,.l1ether !Jdckfit:s :.;hould be proposed, and thereby to develop the JUstilication (or any [eactor improvements that it may wish to require. To require a similar justification for 1nformar.ion requ~s~-~3 *,.;ould epectivvly mc:ike those requests 1mpo.ssi!::>le by J1.:privi11g t-.he .sc.aff of r.he veiy information that wo u l d be need t., J to j u .st i f y ti If~ m. This is purticularly true since the regulation of nuclear power does not involve close review of all aspects of reactor design, construction, and operation, but an audit process under which t~e Staff depends very heavily upon inf orrna t ion provided by the licensees. I ts ability to obtain that information must not be hindered.

• ..,~

,I

~ .. i_

(

....' ~

concerns and huve .:my c~)rnmi:__;sion Jecision l>e subjected to public scrutiny. The standard:.; should otherwise be assumed to govern. -

'I

b. A~, previou!;ly discu:Jsed, a change in Staff position c,:rn110i- it.self co11stitut.l 1 a l>,1ck(it because it is nothing more thcJn the Stc1ff's view of how the underlying c,Jr.tmission reg~1lation~ m.:iy ue complied with. It has no legal significance. Tile ~c1seline from which proposed improvements must be judg0d is the Commission's regulations and the degree of protection that they require, subject only to the.

proposition th.:it licen:.,ee:.:; may be .:ib_le to avoicJ specific ne\1 regulatory requirements where they c>btdin a -,..,aiver. Beyond t11at, only thi2 operar_ing license may 0C'rve as any sort of b.:iseline for particulJr reac~ors. For the r ea.:,ons <.11 scuss ed above , ':he co 1. s ::. r u c t i on p Pr mi t d rJ es not µ r o v i cJ e spec i f i c

.:i ppr o v al s f r 0 m w h i c ll c Ii u 11 1J l":: can be Li c t er mi n e c.l u n J er the

• definition of backfit .

2. The question of a standJrd for determining whether co impose a proposed ~backiitting requirement" is addressed in the section on the substantive component of backfit reform.

a. As discussed .:ibove, the Atomic Energy Act does not

,_ ~L"*: *. ~ ._ ~= :::--? ,.~ ~t~<:~ -~ . :

c. There should .Jlw.:iy::::; be <1 presumption in favor .of the s a f et y be n e f i t *t o b e de r i v t' d f r om .1 b c1 ck f i t r e g u 1 a..t i on s or other improvement. However, there should b~ no standard for comparing such benefits '*to.-*cconomi c con tu because such a comparison is illeg~l. In addition, au lhis ques~ion fmplicitly_recognlzes, it is essentially impoasible to attempt to compare the viL1l but intangible benefits . of saf~ty improvements ~gainst tl1e falsely precise qudntitative estimates of the costs of the improvement. Congress has mandated that safety be protected without regard to cost, antl has thereby determined ~hat no such comparison will be allowed.

d. 7he only uhowing necessary to justifY d backfit is that (1) the Commissiori has adopted the requirement as a new regulation necessary to protect t.he public health and safety or

'_(2) the imµrov~r.ient is nece~;s,:Hy to re<Jain t_be safety protection th.:i t was int.ended wnen -the plant was licensed but

• that subsequent events have shown did not actually exist.

previously discussed, PRAs must not be used for this purpose.

e. Par the reasons. discussed earlier, i.t is not As

-)4-neces~ary at plant ..., . .

impleinent.ed as SUlJ<Jl.!Ht~d in i-1i'-~*3cction ,)n t.hc procedural

component o[ backfit reform.

4. *sec tht~ di scuHs ion o [ schedu 1 i n<J undPr the Gect ion on the proct.~dur.:il comp1J11cn':. of Lldck(i t r '-'Lorm.

-5. *Any appro~ch t.o iinposing new rl*quirementn must rely upon well est.:iblished technicJl principles. PRA's may not be employed. The threshold in all cases remains compliance with Commission regulations and protection of the public health and safety. No *approachw to backfitting changes that principle.

6. In o r de r to en ha n de cert a i n t y ,1 n <l t. he over .:i 11 s a f et y o f nuclear power, as well as the Commission's and its Staff's 3bility to address all'of the complex issue, the Commission should resist efforts to .:idopt ~lternatives to backfit requirements as much ~s possible. The only excuse 3hould be that the backfjt is not needed at the particular plant because the design* is such that it would no~ serve or is not needed to serve its specific intenJeJ purpose.

I

• United States of America Nuclear Regulatory Commission Revision of Backfitting Process for Power Reactors, Notice of Proposed Rulerna king, 10 OFR Parts 2 and 50 4 9 Fe d

• Reg

• 4 7 0 3 4 (Nov. 30, 1984)

Union of Concerned Scientists Comments on Proposed "Backfit" Rule The Union of Concerned Scientists has provided NRC with detailed comments on the two previous proposals in the series on "backfits." "Comments of the Gnion of Concerned Scientists on Proposed Revision of the Backfitting Process for Power Reactors, l-.UPR 48 Fed. Reg. 44217, Oct. 28, 1983 {hereinafter "UCS 1983 Comrne~ts") and "ComDents by Union of Concerned ScieGtiscs on Revision of Backfitting Process for Power Reactors, 49 Fed. Reg. 16900, June 4, 1984 (hereinafter "CCS 1984 Comments"). Those comments are attached and incorporated here with and will not be repeated. This document deals primarily with questions raised by the most recent Federal Register notice.

The questions posed in the notice are discussed below:

1. Should S 50.109 also apply to backfitting imposed through rulemaking?

No, Section 50.109 should not apply to rulemaking, if it is adopted in either the form proposed by the NRC or that advocated by the industry. ~As we have demonstrated, the Atomic Energy Act 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 the increased protection will clearly exceed the direct and

• indirect cost of implementation of the faculty." 49 Fed. Reg. 47035, Co 1. 3 Nor can an "appeal" to the EDO be permitted from a requirement imposed by rule. The legal requirements applicable to rulemaking are contained in the Federal Administrative Procedure Act, 5 use§ 553. Licensees participate fully in such

- decision making,. which provides a full forum for them to openly present all facts and arguments in their favor in the context of a legal ~rocess which the law requires to be open to public scrutiny and comment. The Commission may not circumvent that process by permitting "appeals" outside of the public forum to its Executive Director. Such a process would clearly be illegal. If licensees quarrel with a rule they may appeal it to court. If their quar~el is based on new information, they may file a rulemaking petition or, if appropriate a* request for 1

UCS 1983 Comments, p. 4-7; UCS 1984 Comments, p. 5

exemption There is no dearth of lawful and effective means for licensees to present their positions to the Commission.

2. Should§ 50.109 limit backfitting to backfits "imposed by rule, regulation or order? If the imposition of backfits is not limited to rule, regulation or order, what other mechanisms should be employed?

The obvious purpose of this provision proposed by the industry is to make the process of correcting safety problems so cumbersome as to stop it completely. It is virtually unknown for the NRC to complete a rulemaking in less than a year; most take

- much longer. Moreover, in combination with the in~ustry's definition of "regulatory requirements" (The so-called "impact" approach), the effect would undoubtedly, be to eliminate the condition which the Supreme Court found legally necessary to 2

JUStl. f y two-?tage 1 1cens1ng.

• The Supreme Court approved a licensing process which permits construction to go forward with unresolved safety issues and on the basis of preliminary designs only on the understanding that "the Commission is absolutely denied any, authority to consider [the utility's] investment when acting upon an application for license for operation." Power Reactor Development Co. v. Union, 367 li. s. 396, 414 (1961). If the prospect of any change at all after the granting of a construction permit to what licensee intended, must be justified by elaborate cost-benefit analysis and must be 2 UCS believes that even the NRC's proposed approach violates the conditions necessary for approval of two-stage licensing.

However, the industry's proposal is so overreaching in this regard as to leave no room for reasonable argument.

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?

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 NRC's budget is greatly re~tricted, such waste cannot be justified. We cannot imagine any rational reason for suggesting otherwise except perhaps the hope that the prospect of being required to run a time-consuming obstacle course, particularly when manpower resources are limited, might itself deter staff from proposing safety improvements.

4. Should backfitting be defined as the imposition 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 structures, systems or components of such facility, the design thereof, or the procedures or organization required to construct or operate such facility" (_the effect).

the basis for this position?

What is UCS believes that neither definition is appropriate, for reasons we have previously specified. UCS 1983 Comments, p.

10-30. Both would include within the definition of backfit changes made between the issuance of the construction permit and the operating license. Since the construction permit is granted upon the basis of only preliminary designs and therefore, by

definition, is not and could not be predicated upon a full NRC review of safety questions, the resolution of safety issues before the operating license is issued are not "backfits."

Moreover, it is not clear that even the staff's definition recognizes the crucial distinction between actions necessary to 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 (i.e. impose a "new" minimum safety standard). The former are

- not fairly considered "backfits" since they are necessary to meet pre-established standards.

While the staff excludes from the definition of "regulatory requirements" rules, regulations and orders "to require compliance with the ~ommission'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 regulation and orders raises questions about what is meant. Any

• rule should clearly and ,forthrightly address this issue.

If forced to choose between the two alternative definitions of "regulatory requirements" offered, th~ NRC's is freferable.

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 NRC's rules which are the minimum necessary for safety, whether the safety issue in question had ever been addressed at all prior to issuance of the construction permit, or whether the licensee's intentions had even

been known or could have been known to NRC at the time of the c.p. review. Adoption of such a rule would amount to a near-total abdication by NRC of 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 Energy Act.

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 include the concept of "over its remaining life" for the following reasons:

1. Su c h an an a 1 y s i s c an on 1 y be based on pr ob ab i 1 i s t i c r i s k assessment. For the reasons previously given, that methodology is not appropriate to this application. ucs 1983 Comments, pp. 7-9.

2. The concept creates an incentive for delay* and obstructionism and rewards those who delay the most.

3. "Benefits" are currently expres~ed by NRC in terms of 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. Moreover, the older vintage plants have already been grandfathered from many newer

safety standards and thus are likely to be more dangerous than the newer ones. Application of this concept would 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 newer plants, yet the concept would do precisely that. 3

6. To what extent may the Commission consider costs, including economic costs in backfitting decisions under the standards and processes proposed in§ 50.109? What is the basis for the position stated?

See UCS 1984 Comments, pp. 4-5; UCS 1983 Comments, pp. 3-7.

It is also the opinion of NRC's General Counsel that costs cannot generally be considered in determining compliance with regulations. H. Plaine to Commissioners, Memorandum

Subject:

Consideration of Costs for Eackfitting and Other Safety Related Costs in NRC Processes, p. 4ff, May 4, 1984.

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 Fed. Reg. 47036, Col. 2. This assertion is based explicitly on the "premise" that all plants meet or will 3 The Commission may be interested to know that even without authorization, CRGR is currently using the concept. When reviewing the staff's proposed ATWS rule, CRGR "suggested" that certain plants "may have reached an age where the benefits of full implementation of the ATWS rule might not justify the costs involved." v. Stello to W. Dircks "

Subject:

Minutes of CRGR Meeting 34," May 4, 1983.

meet all current rules even without the backfit being considered. ~ . ; Cols. 1-2. That premise does not accord with reality. As we have demonstrated, the vast majority of "backfits" have been required to ensure that plants meet the basic rules in effect at the time they were licensed. UCS 1983

~omments, pp. 10-18. This fact has never been disputed by NRC so far as we are aware, although it is totally at odds with the "premise" necessary to the Commission's assertion that it may balance costs against benefits.

It is ma~ifestly disingenuous to suggest that NRC has been or is in the business of ordering changes that go beyond those necessary for safety. It may have made mistakes (in both directions) 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.

A few other questions should be addr~ssed. First, comments are asked on the adviseability of imposing the backfit standard on license amendments. In UCS's view, such an application would be contrary to law.

The Atomic Energy Act forbids a license to be issued if it would be "inimical to the

• health and safety of the public." 42 u.s.c. § 2133(d). See also§ 2232(a). These provisions are implemented by 10 C.F.R. § 50.57(a) which

requires the NRC to find that the facility will operate in conformance with the rules and that there is reasonable assurance that the public health and safety will not be endangered thereby. License amendments are governed by the same standards.

10 CFR S 50.92(a). There is no warrant in the law to allow a Licensee to accomplish by amendment what it could not accomplish by application of the standards which apply to the initial license.

Additional comment is necessary on the cost-benefit analysis mandated by the proposed§ 50.109(d) (1-7). Even were it permissible to consider costs, the proposal does so in a way that is grossly biased in favor of costs as against benefits. As Commissioner hsselstine notes, every conceivable cost is counted, but an entire and very substantial class of benefits is inexplicably excluded; namely, the avoidance of the monetary costs associated with an accident, such as damage to the plant, off-site property damage, the direct and indirect costs of evacuation, relocation, decontamination, and possible compensatory damages for harm to members* of the public. Even for the TMI-2 accident, which is far from the worst-case, off-site insurance claims totaled 31.25 million dollars as of March, 1983. NUREG-0957, "The Price-Anderson Act- The Third Decade."

GPU estimates that cleanup will cost over 1 billion dollars. The total costs of an accident involving substantial off-site releases could easily be in the billions of dollars. It is an obvious inequity to count even such "costs" as NRC

\

resource expenditures against a backfit but refuse to consider. in favor of a backfit the full benefits associated with avoiding an accident, nor has NRC attempted to provide a reason for this. It is arbitrary and without justification.

Comments on Commissioner Asselstine's Proposal In general, UCS endorses Commissioner Asselstine's analysis of the backfitting issue and believes that his proposal for a backfitting standard comes 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.

First, Commissioner Asselstine would prohibit consideration of monetary costs at the operating license stage only for backf1ts related to "safety matters that were left unresolved at the time of issuance of the construction permit." 4 9 Fed. Reg.

4 7 0 41, Co 1

• 1. Unfortunately, the current construction permit A.

'W) review process does not permit a reliable determination of which issues were or were not "resolved" or, if purportedly "resolved,R what facts were considered in reaching the resolution. For example, it might well have been argued that environCTental qualification was "resolved" for all construction permits since all were theoretically supposed to be in compliance with GDC 4.

Nor do we believe that all such cases would alternatively be encornpased within the "mistake of fact" exclusion contained in Commissioner Asselstine's § 109(b) (3). Beyond mistakes of fact, the problem lies also in the superficiality of the review.

UCS beleives that so long as c.p.'s are to be granted on the basis of preliminary-design concepts, it is not legitimate 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 decisiqns; only the licensee is provided an opportunity to cornment. 4 UCS believes that the decision making process should be open and accessible to all persons who might be affected. ucs 1984

• Comments, pp. 8-11 .

Conclusion For the reasons stated above, UCS urges the Commission not to adopt the proposed rule.

4 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 EJ..,l y n R

• We i s's > J

'Barman, Weiss & Jordan General Counsel Union of Concerned Scientists 2001 S Street, N.W.

Suite 430 Washington, D.C. 20009 (202) 3 28-3500 dated: January 29, 1985

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Rochester ,.

• Y. 14607 W (ET -8 All :09 October 2, 1987 Secretary , U. s. uclear Regulatory Commission shington , D. c. 20555 Attn: Docketing and ervice Branch

Dear Commissioners ,

I wish to comment 52 Fed . Reg . 34224 Col . 1 (when economic cost will be a consideration in backfiting) . The regulation, if implemented properly , will improve protection of public health and safety . However , until the Commission develops objective criteria and examples delineating what backfits under cons i derat -

ion are needed to ensure public safety and which @nes go beyond adequate safety ,

the regu l ation cannot be applied in any meaningful way . lease address this matter and develop objective criteria .

,vith regards to your intention to issue a new version of the "Manuel Chapter",

You wouid be doing both the NRC and the public a disservice by preventing public comment and input. You know that many of the most fr u itful ideas regarding safe t y have come fro m the public.

I 1, I

• I

') . '

i J:!. JqUELEAR ~EGtJLAfmv COMMISSIOij DOCKETING & SERVitE SECTION OFFlCE. or- T" ,.: SF.C RH ARY OF tqE t. ::;MMl~5 iON Po?~a,k o" Copies Add' I r ,,i * :

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• • • ! ~ ---

SIERRA CLUB lR rer -,s Ps :32 LEGAL DEFENSE S11nrist, Mt. McKinlty Ansel Adams 2044 Fillmore Street SAN FRANCISCO OFFICE Fredric P. Sutherland Extt11tivt Dirutor October 1, 1987 William S. Curtiss Julie E. McDonald Deborah S. Reames Laurens H. Silver Secretary, U.S. Nuclear Regulatory Commiss i on Michael R. Sherwood Washington, D.C. 20555 Stephan C. Volker Sta.ff Attornrys ATTN: Docketing and Service Branch

..A Vawter Parker

. . . . Coordinating Attornty Re: Comments on Proposed Rule -- Revision of Earl M. Blauner Backfitting Process for Power Reactors, 52 Fed.

Of Counsel Reg. 34223, September 10, 1987 Joanne C. May Kliejunas Dirutor of Dtwlopmtnt

Dear Secretary:

Diana Lee Nancy L. Fortner I appreciate the opportunity to comment on the pro-Dtvtlopmtnt Assistants posed backfit rule.

Sally A. Hershey Control/tr The proposed rule is seriously deficient and should Joanna C. Chestnut not be adopted. Section 50.109{a)(4}{iii) states that Administrator cost-benefit analysis is not required where the regulatory Tom Turner action involves "defining or redefining what level of Sta.ff Writtr protection to the public health and safety . . should be Other Offices regarded as adequate." But this "standard" is far too ROCKY MOUNTAIN OFFICE vague. The regulation should include guidance, such as

..,,..1600 Broadway Street objective criteria or specific examples, on how to know

. Suite 1600 whether any particular proposed backfit is either needed Denver, CO 80202 to ensure adequate safety or goes beyond ensuring adequate (303) 863-9898 safety. Furthermore, the regulation is deficient in that WASHINGTON, DC OFFICE it fails to explain how the NRC will treat cases for which 1531 P Street, N.W. cost/benefit analysis will not be required.

Suite 200 Washington, DC 20005 (202) 667-4500 The proposed regulation is hardly less vague than the ALASKA OFFICE rule that the Court of Appeal recently overturned. The NRC must do better than this.

419 6th Street Suite 323 Juneau, AK 99801 Very truly yours, (907) 586-2751 NORTHWEST OFFICE 216 First Avenue, South Suite 330 Seattle, WA 98104 ulie E. McDonald (206) 343-7340 JEM:cms

J . S. NUCLEAR f>CG l./1.. D ::? Y roMMISSIOS DOCKn!~"j <, :: ' '/ 'C ~ ~ECTION C, f;--.: ** r:*:* i . **. --~~.t:*,y

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il.:l3 ANTRIM . NH 03440 U!:> Ni'C (603) 588 - 2916 Sept. 'd7, 1987 "87 OCT *2 A10 :10

Dear Secretary,

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. f:.'.i !~~ * . ,1i1lfrn.

Re: proposed revision to 10CFR 50.109 ~~ANO' .

I believe this rule is as ambiguous and fatally flawed as its predecessor which was struck down by the U.S. Court of Appeals in D.C. on 8/5/87. I am speaking on my own behalf as well as for the N.H.

Citizens vs . Price-Anderson and the Vermont Yankee Educational Coalition. We are in complete accord with the views expressed by the Union of Concerned Scientists .

Please, provide an opportunity for the public to comment on the Manual Chapter before it is re-proposed in its final .flDrm.

Thank you.

Sincerely,

_::; ~ .,.-~

():;:~:-::F r-- -r* 1. :r- :i \.r-1

'l'" wi: c .1::.r:;~

,._, .. f, I Ffftntl .,

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dd' I Cr

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September 24, 1987 C:f.z F/4 .3--1.2..t~t~brn COMMENT*; OF OHIO CITIZENS FOR RESPONSIBLE ENERGV, ON PROPOSED REV rs ION OF BAC KFI TT r NG INC .

PROCESS FOR PO\,.IER

._., o~ *)

Rr*~c~if PS ;j5 10 CFR 50.109, 52 FED REG 34223 (SEPTEMBER: HJ , 1'?87)

In response to the August 4, 1987 decisiO'fi Of court of Appeals for the District of Columbia which vacated the NRC's backfitting rule, the Commission is revising the rule ta conform to the court's decision. OCRE is pleased that the NRC is seeking to comply with the court's mandate. However, the proposed revisions do not go far enough in complying with the court's ruling, and also do not rectify the deficiencies in the backfit rule as a whole, It is not enough to include in proposed 10 CFR 50.109(a)

(4) (iii) the provision tha'c the back fit rule is inappliCC4ble when the regulatory action in vo lves defining or redefining what constitutes "adequate protection " of the public health and sofety without also redefining in section (a) (i) that:

backfitting does not apply to rulemaking. The proposed revision does not touch that section, which will s t i l l include as backfits modifications resulting from rulemaking , The court held that, in setting or enforcing the standard of "adequate protection" required by section 182 of the Atomic Energy Act, the commission may not consider the economic costs of safe ty measures. Union of Concerned Scientists v. NRC, slip OP. at 12, 20. Any regulation is part of the standard of "adequate protection*, as compliance therewith is mandatory and is a condition ,:)f licensing, 10 C:FR 50.57(a) (2). See also Mc1ine Yankee Atomic power co. (Maine Yankee Atomic Power Station )

ALAB-161, 6 AEC 1003, 100'? ( "I:he sine qua nan of adequci*!:e protection to public health and safet y is compliance with Gll applicable safety rules and regulations promulgated by the

- Commission,"> Making any changes to any regulation or deleting any regulation is "d etermining the content adequate protection consideration of costs to licensees.

20.

standard" Thus rulemaking, by definition, must be backfit rule .

in whi ch there exempt can

µcs v, NRC, slip op.

or from of be udding the no at the Other considerations also require this t-esul*t. The Commission has noted in other rulemaking proceedings that "wh~n applied to human-factors and certain other rul ema king, the Backfit Rule continues to exact NRC resources wholly disproportionate to any conceivable benefit to the public.*

Comments of commissioner Bernthal, proposed rule on - standards of pl"' o *c e c *t i on ,::~ g*a i n s t rad i *'.:i l: i an , 51 Fed . Reg . 3 0 8 7 3 ( A1..tg 1..1 s t 2 9 ,

1986). See also the proposed revision to 10 CFR 50 Append{x J, 51 Fed. Reg. 39538 (O ctobe r 2'i, 1986). Indeed, the .* CDt..H't of H, , UtlU~ ~c1UtAf6R¥ ~aMMISSI R Cf<ETING g. ~~rtVl<".E SkCllON

~f:Fld 6~ H:~ ...r1<'!UTAltr

• t 'tm CC! ',.'.',IStloN

D.C. Circui'c the i mpropr* i e ty Of applying the backfit rule to rulemaking proceedings: "during th e rulemaking process, the NRC is forced to Justi fy the need far regulations in vo lving back fitting by virt ue of the rulemaKing itself. A further finding on the impact of the regulations on the public safety would be otiose,* Connecticut Light ..:-.nd power ca. v. NRC, 673 F.2d .52 -5 , .5 36 (1'7'82).

Therefore, on bo*th legal ,::-,nd practical grc:runds, sec-cion (G) (1) must be revised to specificall y exclude rulemaking from the scope of the backfit ru le.

Staff positions implementing or interpreting commissio n rules should also be exempt from the backfit rule requirements.

Since such Staff positions (e,g , , the Standard Review Plan and Regulatory Guides) detail acceptable methods for complying with the regulations, they are inextricably intertwined with the regulations ( see comments of commissioner Asselstine on issuance of the backfit rule, 50 Fed, Reg, 38107 (S ept, 20, 1985) and thus the "adequate protection" standards. costs to licensees should not be considered in revising such Staff regulatory positions either.

The commission may want to use this opportunity to reexamine the basic premise and purpose of the backfit rule in other respects as well, As noted above, the applicability of the backfit rule to the human factors area has been seen as inappropriate, OCRE believes that the backfit rule should not apply to procedures, documentation, or ganization, management, maintenance practices, training, etc, as these oc-ti'v'ities are bY their v ery nature dynamic and not static, as is the basic design of plant structures and systems. such activities are always changing with turnover of personnel and e volut ion of standard practice, Similarly, a design change should only be considered a backfit if it is imposed after issuance of a full-power operating license, as prior to that time changes are more easily made to a facility. This flexibility in requiring backfits is necessary and desirable to ensure that the public health and safety will be protected. The long construction time of nuclear facilities, along with the iterati v e nature of nuc lear plant design , which is often incomplete at the inception of the project, render i t imperative that the NRC have full authority, unhampered by the backfit rul e, to require any changes in a facility under construction as it sees fit, OCRE therefore propo*;;es 10 CFR 50. 109 (a) (1) be i~evised *l:o read:

(,.:i) (1) Bac~:fitting i*; defined as the modifictH:ion of or addition to systems, structures, components or design of a facility; or the design appro v al or manufacturing license for a facility, except those resulting from a new or amended provision in the commission rules or imposition of a regulatory staff position interpreting the commission rules that is either new or different from a previously applicable staff position, c,fter:

( i) the d1Jte of issucrnce of full power, f u 11 *i:erm aper*at-ing license; or

( ii ) the date of i *; suance of the approval under Appendix M, N, or O of this part, This re v ision is necessar y to ensure that the backfi+:

rule, with its intendent cost justification requirements , will appl y only to those changes which go ' beyond adequate protection of the public", as is consistent With the court ' s 1~u1ing in UCS.

Respectfully submitted, su *; an L. Hiatt OCRE Representati v e 8275 Munson Road Mentor, OH 44060

( 216 ) 255-3158 S,e,cy

[7590-01]

DOCK[TED L'* 'lPC N..O...EAR *~lCRY CThM ISSI OJ 10 cm Part 50 '87 SEP -9 A8 :24

~ISIOJ a= BA(l<FllTlt-c PRX:ESS R:R FO.ER REPCTCRS

'*

• I,..

KBC(: Nuclear Regulatory c.cmnission.

,ACTIGJ: Proposed rule.

~= The Nlx:lear Reg.,latory Carrnission is considering c1Tlef1dnents to its rule for backfitting of nuclear power plants. This action is necessary in order to bring the backfit rule into unarbiguous confonrance with the August 4, 1987 decision of the U.S. Court of ~als for the District of Colurbia Circuit in Union of C.Oncerned Scientists, et al. v. U.S. Nuclear Regulatory c.cmnission. This action is intended to clarify wien econanic costs may be considered in backfitting nuclear pov.er plants.

[}\1£5: Cooment period expires 001131981.

Carments received after this date wi I I be considered if it is practicable to do so, rut assurance of consideration can be given only for ccrnnents f i Ied on or before this date.

~: Interested persons are invited to send written ccmnents or suggestions to: Secretary, U.S. l'lx:lear Regulatory C.armission, Washington, D.C. 20555, ATTN: Docketing and Service Branch. Carrrents rray also be delivered to: Roan 1121, 1717 H Street, N.W., Washington, D.C., between 7.'jO 'f:JS-

~ a.m. and'""" p.m. weekdays. Copies of any ccmrents received may be examined at the flR: F\Jbl ic Docurent Roan, 1717 H Street, N.W.,

Washington, D.C.

0002.0.0 (7590-01 J RR R.RT1-ER 11\RH!ATIO.: aNT'ICT: Steven F. Crockett, Office of the Cieneral Counsel, U.S. ~ I ear Regulatory Cmmisslon, Washington, D.C. Telephone (202) 634-1465.

SLPPI..Bv8'lTl>R( l ~ T I ° ' : 0, Septerrber 20, 1985 (SO FR 38097), after an extensive rulenaking proceeding Ythich included seq.,entlal opport1r1ities for public carrnent on an advanced notice of proposed rulerreklng (48 FR 44217.

Septerber 28, 1983) and a notice of proposed rulerreklng (49 FR 4703q,

- Novemer 30, 1984), the Cannissfon adopted final cmenctnents to Its rules in 10 OR §50.109 for backfitting of ruclear JX7N8r plants. Backflttlng Is def Ined In sane deta 11 In the ru Ie. rut for purposes of d I scuss Ion here it means measures v.hlch are directed by'the Ccmnission or by r-.K: staff In order to lrrprove the safety of nuclear pc,,.er reactors, and v.hich reflect a change in a prior Cmtnlssion or staff position on the safety rratter in ~st Ion.

Backf its may be lnposed e I ther to ensure the adewate protect ion of pti>I ic health and safety, or to provide additional safety requirerrents beyond the level of adequate protection.

_Juc:Jiclal review of the anerded backflt rule and a related Internal NC mart.Jal chapter Ythlch partially lnplanented it was sought and, on August 11.

1987, the U.S. C:OUrt of Appeals for the D.C. Circuit rendered its decision vacating both the "11e and Marual chapter, U,lon of Concerned Scientists. et al. v. U.S. t-u:lear Regulatory Cannission, D.C. Cir. Nos. 85-1757 and 86-1219 (h.,gust 4, 1987). The Court conch.ded that the rule. v.hen considered along-with certain statements in the rule-preaii>le pl.bl lshed In the Federal Register, did not speak l.111c11Dig.,ousty In tenns that constrained the Cmrnission fran cons Ider ing econanlc costs in es tab I I sh Ing standards to ensure adequate

00O3.0.0 [7590-01]

protect Ion of the p.ibl le hea I th and safety as dictated by sect Ion 182 of the Atanic Energy Act of 1954 as anended, 42 U.S.C. 2011 ff. At the scme time, the Court agreed with the Cmmisslon that once an adecµ3te level of safety protection had been achieved under section 182, the Cannisslon was fully authorized trder section 1611 of the Atanic Energy Act to consider and take econanic costs Into accou,t In ordering further safety lnprovements. 1he Court therefore rejected the position of petitioners In the case, Uilon of Concerned Scientists, et a I., that econanlc costs rray never be a factor In

- safety decisions under the Atanic Energy Act.

Because the Cour* t I s op in Ion regarding the c i rams tances In Yth i ch costs may be considered In making safety decisions on ruclear pcM'8r plants. is carpletely in accord with the way in v.hich the Cmmission has always Interpreted this rule, the Ccmnisslon wl 11 not aR)eal the decision. Instead, the Cannlssion has decided. to a-rend both the rute and the related manual chapter (Chapter 0514) so that they conform lB'lclTt>l~ly'to the Court's opinion.

By this rulernaklng the Cannission Intends to apply the fol lowing safety principle in al I of Its backfittlng decisions. The Atanlc Energy Act ccmrards the Cannlssion to ensure that nuclear power plant operation provides adequate protection to the health and safety of the publ le. In defining, redefining or enforcing this statutory standard of adequate protect Im, the Coomission wl 11 not conslder-econanlc costs. Ho.Yever, ad~ate protection Is not absolute protection or zero risk. Hence safety irrprovenents beyond the mlnlrrun needed for adequate protection are possible. 1he C'.atmisslon Is Efll)OYlered under section 1611 of the Act to lnpose addltlonal safety recJ.Jlrernents that go beyond ade<:J,Jate protection and to consider econanic costs In doing so.

0004.0.0 [7590-01]

The anended backflt rule Ythlch was the subject of the C.OUrt's decision required, with certain exceptions (relating to backflts necessary to ensure the adequate protection of p.Jbllc health and safety), that backfits be lrrposed only upon a finding that they provided a substantial increase In the overal I protection of the J:Ublic health and safety or the c<JTT0011 defense and*securlty and that the direct and Indirect costs of irrp1EIJ1efltation were justified in view of this Increased protection. The proposed anenctrents Ythlch fol laN would I

restate the exceptions to this requirenent for a finding so that the rule

~Id clearly be In accord with the safety principle stated above.

Canrents are re(J.lested on the proposed anenctrents mlch fol low. In addition, interested persons are welcane to cooment on other possible approaches to confonn the backfl t ru Ie to the C.ourt I s dee Is ion.

lhe Carrnlsslon has also instructed Its staff to clTlend Its marual chapter on plant specific backfitting to ensure consistency with the Court's opinion ard to re Issue It. The marva I chapter wi I I be rev I sed and Issued fo I Ic,,vi ng adoption of a final rule. Upon call)letlon of that task copies of the revised diapter wl 11 be aval Iable for J:Ubl lc inspection in the Carmlsslon's Publ le Docunent Roan, 1717 H Street, N.W., Washington, D.C.

~IIOM:M"AL IM>ICT: CATECIRIC'AL 00.USI~

lhe t-R: has detennlned that this proposed rule Is the type of action described in categorical exclusion 10 CfR 51.22(c)(3)(i). Therefore, neither an envl rormenta I irrpact statement nor an envi ronnenta I assessment has been prepared for this proposed rule.

0005.0.0 [7590-01]

PAPERlm< REO.Cf lGI /Cr SfAllM:Nr This proposed rule does not contain a new or cl'rended infonrat Ion collection requirarent subject to the Papen'!Ork Reduction Act of 1980 (44 U.S.C. 3501 et seq.). Existing req_Jlrements were approved by the Office of 1/4inagerrent and Budget, approva I nt.Jrt:,er 3150-0011.

RE<ll.ATCRr' NW...YS IS

- The proposed rev is Ion to 1O a=R § 5 0. 109 wll I bring i t into conformance with the holding In lkilon of Concerned Scientists, et al. v. U.S. tluclear P-egulatory Qmnlssion, D.C. Cir. Nos. 85-1757 and 86-1219 (August 4, 1987).

1he revision clarifies the backflt rule to reflect~ practice that, In detenni n i ng Ythether to adopt a backf It r~I rement, econani c costs wl I I be considered only Ythen addressing those backfits Involving safety requlrerrents beyond those needed to ensure the adeq.Jate protection of public health and safety. Such costs are not considered W1ef1 establ ishlng the adequate protection of p.,blic health and safety. This proposed cl'rendnent does not have a s lgni fl cant irrpact on State and local goverrrnents and geographica I regions, p.blic health and safety, or the envlronrent; nor does it represent substantial costs to licensees, the flR:, or other Federal agencies. This constitutes the regulatory analysis for this proposed rule.

RECULATCRY' FLEX IBI LI 1Y /.CT CEU IF ICAT ICN In accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C.

605(b), the Cannlssion hereby certifies that this proposed rule, If prrnulgated, wi 11 not have a s lgil f leant econcmlc irrpact on a substant la I

0006.0.0 [7590-01) rurber of small entities. lhe affected faclfltles are licensed urder the provisions of 10 cm S0.21(b) ard 10 CFR 50.22. 1he ccnpanles that ow, these f'acl I I ties do not fal I within the scope of "smal I entities" as set forth In the Reg.Jlatory Flexibility Act or the Strei I Business Size Standards set forth in regulations issued by the STell Business Actninistration In 13 a=R Part 121.

B60<FIT ,ANt\LYSIS The t-R: has detennined that a backflt analysis Is not req.iired for this proposed rule because these arencirents do not irrpose req.Jir6'ef"ts on 10 OR Part 50 licensees.

LI ST OF SlBJ ECTS 10 a:R Part 50 Antitrust, Classified infom-atlon, Fire prevention, Incorporation by reference, lntergovermental relations, ~clear power plants and reactors, Penalty, Radiation protection, Reactor siting criteria, Reporting ard recordkeeplng requiraTEnts.

For the reasons set out In the prearble and under the auth:>rity of the Atanlc Energy Act of 1954, as arerded, the Energy Reorganization Act of 1974, as arerded, and 5 U.S.C. 553, the r-R: is proposing to adopt the follcming anerdrent to 10 CFR Part 50.

1. The authority citation for Part 50 Is revised to read as fol IONS:

,AJJJ'}ffiflY: Secs. 103, 104, 105, 161, 182, 183, 186, 189, 68 Stat,'936, 937, 938, 948, 953, 954, 955, 956, as arended, sec. 234, 83 Stat. 1244, as anerded (42 ~.S.C. 2132, 2133, 2134, 2135, 2201,

0007.0.0 [7590-01) 2232, 2233, 2236, 2239, 2282); secs. 201, as anerded, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846).

Section 50.7 also Issued under Pub. L.95-601, sec. 10, 92 Stat. 2951 (42 U.S.C. 5851). Section 50.10 also Issued under secs. 101', 185, 68 Stat. 936, 955, as cmerded (42 U.S.C. 2131, 2235); sec. 102, Pub. L.91-190, 83 Stat. 853 (112 U.S.C. 4332). Sections 50.23, 50.35, 50.55, and 50.56 also Issued tnder sec. 185, 68 Stat. 955 (42 U.S.C. 2235). Sections 50.33a, 50.55a and Appendix Q also Issued under sec. 102, Plb. L. 91-19.0, 83 Stat. 853 (42 U.S.C. 4332).

Sections 50.34 and 50.54 also Issued tmer sec. 204, 88 Stat. 1245 (42 U.S.C. 5844). Sections 50.58, 50.91, and. 50.92 also Issued trder Pt.b. L.97-415, 96 Stat. 2073 (42 U.S.C. 2239). Section 50.78 also Issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Sections

- 50.80-50.81 also issued under sec. 184, 68 Stat. 954, as c111ended (42 U.S.C. 2234). Section 50.103 also issued under sec. 108, 68 Stat.

939, as amended (42 U.~.C. 2138). "1:>Pendlx Falso Issued Ll"lder sec. 187, 68 Stat. 955 (42 U.S.C. 2237).

For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2273), §§ 50.46(a) and (b), and 50.54(c) are Issued under sec. 161b, 68 Stat. 948, as anended (42 U.S.C. 2201(b)); §§ 50.7(a),

50.l0(a)-(c), 50.34(a) and (e), 50.44(a)-(c), 50.46(a) and (b),

50.* 47(b), 50.IJ8(a), (c), (d), and (e), 50.49(a), 50.54(a), (I),

(1-1), (1)-(n), (p), (q), (t), (v), and (y), 50.55(f), 50.55a(a),

(c}-(e), (g), and (h), 50.59(c), 50.60(a), 50.62(c), 50.64(b), and 50.80(a) and (b) are Issued under sec. 1611, 68 Stat. 949, as anended (42 U.S.C. 2201(1)); and§§ S0.49(d), (h), and (j),

S0.54(w), (z), (bb), and (cc), 50.SS(e), S0.59(b), 50.61(b),

0008.0.0 [7590-01) 50.62(d), 50.70(a), 50.71(a)-(c) and (e), 50.72(a), 50.73(a) and (b), 50.74, 50.78, and 50.90 are Issued under sec. 1610, 68 Stat.

950, as cFended (42 U.S.C. 2201(0)).

2. Section 50.109, Is emended by revising paragraµ,s {a)(2), (3) ard (4) and footnote 3 to read as fol lows:

§ 50.109 Backfltting.

(a} * * *

(2) Except as provided In paragraph (a)( 4), the Qmni ss ion sha 11 requ I re a systematic and docurented analysis pursuant to paragraph (c) for backflts

¥which It seeks to lrrpose.

(3) Except as provided In paragraph (a)(4), the CaTmisslon shal I requl re the backfl tt ing of a faci 11 ty only v-.hen It detennines, based on the analysis described In paragraph (c} of this section, that there is a substantial increase In the overall protection o! the pi>llc health and safety or the ccmron defense and security to be derived fran the backflt and that the direct and lrdirect costs of lrrplementation for that facility are justified In view of this increased protection.

(4} The provisions of paragraphs (a)(2) and (a)(3) of this section are inapplicable and, therefore, backflt analysis Is not req. dred and the standard does not awly w,ere the Coomlsslon or staff, as appropriate, finds and dee Iares, with appropriate docunented evaluation for its findirg, either:

0009.0.0 [7590-01)

(I) That a modification Is necessary to bring a facility Into carpi lance with a license or the rules or orders of the Coomlsslon, or Into confonnance with written cmmitments by the I icensee; or (Ii) lhat regulatory action is necessary to ensure that the facility provides adeq.iate protection to the health ard safety of the public and Is in accord with the ccrnron defense and secur I ty; or (Iii) lhat the regulatory action involves defining or redefining Yohat level of protection to the pub! le health ard safety or canron defense ard security should be regarded as adequate.

Such docunented evaluation shal I include a statEfTleflt of the objectives of and reasons for the rrodification and the basis for Invoking the except I on *.:/ 1he Cannl ss Ion sha 11 a Iways req..i I re the backf i tt i ng of a facility If It detemiines that such regulatory action is necessary to ensure that the facility provides adequate protection to the health and safety of the ~I ic and Is in accord wl th the carroon defense and securl ty.

3 If lmnediately effective r~latory action Is required, then the docunented evaluation may fol ION rather than precede the regulatory action. If there are tYtO orrooreways to achieve carpi lance with a license or the rules or orders of the Camllsslon, or with written licensee carmitments, or there are bYo or n-ore ways to reach a level of protection 'tthich is adequate, then ordinarl ly the awl icant or I icensee

0010.0.0 [7590-01 J is free to choose the way wiich best suits its purposes. Should it be necessary or appropriate for the Carrnisslon to prescribe one of these ways to carply with Its requirerrents or to achieve adeq.Jate protection, then cost rray be a factor In selecting the YoaY, provided that the objective of cmpl lance or adequate protection is met.

Dated at Bethesda, M) this 1dday o( , 1987.

For the ~lear Regulatory C.cmnission