In the latest installment of NRC’s changes to its guidance on backfitting on May 29, the Commission approved the Staff’s proposed revisions to Management Directive (MD) 8.4, previously titled, “Management of Backfitting, Issue Finality, and Information Collection” and its companion Directive Handbook (DH). As a result of content changes (discussed herein), the title of these directives has now been modified to also provide guidance for the “forward-fitting” requirements for 10 CFR Part 52 licensees by including its analogous terms for Backfitting, “forward fitting and issue finality.” As such, NRC guidance on Backfitting is now called “Management of Backfitting, Forward Fitting, issue Finality, and Information Requests.”
A divided Commission at the US Nuclear Regulatory Commission (NRC) on January 24 approved the Mitigation of Beyond-Design-Basis Events rulemaking (Final Rule). The NRC began the rulemaking in December 2016 as part of its efforts to evaluate and implement, if necessary, regulatory changes in response to the Fukushima Daichi event in March 2011. In somewhat of a surprise, the majority of Commissioners last week rejected large portions of the proposed rule submitted by the NRC staff over two years ago. The rationale for changing the Final Rule demonstrates a renewed emphasis on applying backfit analyses.
The nuclear industry periodically has urged the US Nuclear Regulatory Commission (NRC) to more diligently apply the backfit rule when NRC staff attempts to change its position without proper justification.1
These industry requests apparently were heard by the NRC, as evidenced by an NRC letter dated July 19, 2017 (and made public on July 27, 2017) that addresses the NRC’s review of its application of the 10 CFR 50.109 backfit process. The letter also contains the NRC Executive Director for Operations (EDO) Victor McCree’s response to the report and recommendations of the Committee to Review Generic Requirements (CRGR), which issued its report on June 27, 2017 in response to a request by the EDO on June 9, 2016. (For more info on the NRC’s backfit compliance reviews, see our previous posts on the subject.)
On December 20, the NRC’s Office of the General Counsel (OGC) issued a memorandum to the Committee to Review Generic Requirements (CRGR) summarizing key policy recommendations contained in COMSECY-16-0020 (“Recommendation on Revision of Guidance Concerning Consideration of Cost and Applicability of Compliance Exception to Backfit Rule”).
The OGC’s summary is one of several actions taken by the NRC linked to a licensee’s successful challenge this past summer (with support from the Nuclear Energy Institute (NEI)) to an NRC-proposed backfit, which invoked the “compliance exception” to the Backfit Rule.
In a September 15, 2016, letter to Exelon, the Nuclear Regulatory Commission’s (NRC’s) executive director for operations (EDO) granted Exelon’s appeal of the NRC’s attempted imposition of a backfit by using the compliance exception to the backfit rule. Using that exception would have allowed the NRC to impose the backfit without justifying its actions from a cost-benefit perspective.
Although this event has been much reported by the various nuclear-related publications, we point you to something contained within the EDO issuance that may have gone unnoticed by those who do not routinely face backfit situations (or choose to not pursue this area of regulatory challenge). In a September 15, 2016, memorandum to William Dean, the director of the Office of Nuclear Reactor Regulation, the EDO repeated numerous times that he recognized the associated technical issues, but in the end, focused on whether the threshold for meeting the compliance backfit exception was met. The threshold involved whether the NRC Staff’s position addressed a failure to meet known and established commission standards because of an omission or a mistake of fact. New or modified interpretations of what constitutes compliance therefore do not fall within the compliance exception.