The NRC recently released draft NUREG-1409, Backfitting Guidelines, Revision 1 for public comment. NUREG-1409 was last revised in July 1990. This is another step in a string of actions taken by the NRC to better ensure the NRC’s application of the Backfit Rule consistent with its intent. This revision is intended to compliment modifications made to Management Directive (MD) 8.4, approved by the Commission on September 20, 2019.
Similar to MD 8.4, draft NUREG-1409 is focused on application of the Backfit Rule but also discusses a modified approach to Backfit Rule implementation labeled “forward fitting.” The forward fitting concept was previously introduced in MD 8.4 and defined in the NUREG as “when the NRC conditions its approval of a licensee-initiated request for a licensing action on the licensee’s compliance with a new or modified requirement or staff interpretation of a requirement that the licensee did not request.”
As explained in draft NUREG-1409, the NRC’s policy on utilizing the forward fitting approach is to triage whether the proposed forward fit really is necessary. In this regard, the NUREG “requires the NRC to justify and document its analysis . . . to ensure reasoned and informed NRC decisionmaking and transparency.” This analysis must demonstrate (1) a “direct nexus” between the new requirement or regulatory staff position and the licensee’s request, and (2) such imposition “is essential to the NRC staff’s determination of the acceptability of the licensee’s request.”
The proposed revisions in draft NUREG-1409 represent a general rewrite of the methods to be used by the NRC when justifying a backfit (and the associated forward fit concept), and appears to represent further evidence of an improved working relationship with industry by addressing many concerns expressed by licensees.
Noteworthy modifications to the NRC’s approach to backfitting include the following:
- Risk Considerations and Safety Significance: Consistent with modifications to MD 8.4, Section 1.4 of the NUREG introduces risk-informing principles by suggesting that Staff “consider risk insights, to the extent practical, for any proposed backfitting or forward fitting action.” While emphasizing that probabilistic risk assessment (PRA) information should be included, draft NUREG-1409 also opens the door to considering qualitative factors as part of a backfit analysis: “A quantitative estimate of risk is just one of the possible considerations that can support an integrated and risk-informed justification.”
- Section 1.5 of the NUREG addresses communications between the NRC Staff and licensees, which had been an area of concern from a backfit ratcheting perspective. The draft acknowledges that “[d]efinitive statements made by the staff to a licensee that a specific action is needed to comply with NRC requirements or to satisfy existing applicable staff positions may be perceived [by a licensee] as a backfit.” The NUREG suggests, however, that if a suggestion is made “in a neutral context (i.e., not suggesting a licensee must take an action that goes beyond its current requirements),” the statement would not be a backfit.
Comments on the draft NUREG-1409 are due by May 22, 2020, i.e., within 60 days of the publication in the Federal Register on March 23, 2020. The NRC also plans to “conduct a public meeting to describe the draft NUREG and answer questions from the public.”
The NRC Staff promised in SECY-20-0021 to provide a revised NUREG-1409, Revision 1 to the Commission after reviewing and addressing public comments. After issuing a final NUREG-1409, Revision 1, the NRC Staff “will revise as appropriate all office-level or region-level guidance, training, and qualification programs.”
Morgan Lewis will continue to review backfit developments.