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.
In this instance, it was clear that there was no omission or mistake of fact. Therefore, irrespective of the associated conservative technical positions that the NRC Staff provided, it could not use the compliance exception to the backfit rule to impose its new interpretation of the compliance-related technical issue. Importantly, winning a backfit appeal eventually focuses on applying a backfit’s elements, not the associated technical issue. By its nature, backfit is somewhat “legalistic.” However, that is not negative in this instance.
As you pursue or consider a backfit claim, keep in mind that addressing the technical issue may be secondary to rigorously applying the elements of a backfit and the NRC’s use of the backfit rule exceptions.