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NRC Issues Update on Implementing Backfit Training for NRC Staff

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.)

In his July 19 letter, the EDO accepts, with slight modifications, the CRGR’s June 27, 2017 report and recommendations relating to NRC application of the backfit rule. These recommendations substantially reflect what the industry had suggested in its various letters to the NRC (referenced below). The report contains 18 recommendations, broken down into six areas:

  1. Update NRC requirements, guidance, and criteria

  2. Issue a policy announcement on the backfit policy changes

  3. Develop and implement training on backfits

  4. Update internal knowledge management documents regarding backfits

  5. Ensure that the updated policy announcement is applied to issues currently under review, and undertake an effectiveness review after a period of time

  6. Revise the CRGR charter to reflect rulemaking criteria, incorporate NRC direction, and enhance the rigor of CRGR assessments

The EDO agrees that the next key step is beginning training that would be “critical to ensure that employees are well-versed in not just the procedures, but also the regulatory fundamentals necessary to consider novel situations.” Accordingly, he directs the CRGR to develop “reset” training—with an initial pilot for agency senior managers—as soon as possible. Once approved, the EDO directs that training for technical reviewers, inspectors, project managers, and supervisors at NRC headquarters be completed by January 31, 2018.

After the “reset” training is completed, the NRC is to develop initial, refresher, and “just-in-time” training for all personnel. More programmatic reviews—including revising Management Directive 8.4, NUREG-1409, and NUREG/BR-0058—also are ongoing and will require CRGR approval. The EDO also directs that the initial effectiveness review of the policy should be conducted in three years rather than the five years suggested by the CRGR.

Finally, the EDO proposes two new action items that were not identified by the CRGR. He seized on a CRGR-identified “additional contributing factor to backfit challenges” relating to the “retrievability of licensing and design basis information” at older plants. The EDO therefore asks the Office of the Chief Information Officer to report on “the current availability of key docketed information” such as final safety analysis reports, technical specifications, license amendments, safety evaluation reports, and other docketed correspondence. The EDO also directs that the report identify the “resource implications” of making such information more readily available.


[1] See e.g., Nuclear Energy Institute (NEI) letters dated December 16, 2009 (providing NEI’s comments on the future role of the Committee to Review Generic Requirements (CRGR)); June 4, 2010 (communicating industry concerns regarding failure to apply the backfitting requirements to changes in interpretive guidance); November 7, 2014, (describing backfitting concerns related to a requirement for certain Part 70 licensees to develop quantitative exposure standards for dermal and ocular chemical exposures); April 24, 2015 (involving backfit concerns regarding Generic Letter 2015-01); January 20, 2016 (on the Exelon Generation Company backfit appeal); June 16, 2016 (in support of the Exelon Generation Company Second-Level Backfit Appeal); several letters commenting on CRGR public meetings in 2016 relating to its implementation of the backfit rule; and June 6, 2017 (requesting guidance to staff regarding General Design Criteria compliance and interpretation of facility-specific licensing basis for commercial power reactors).

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About this Author

Thomas Poindexter, Morgan Lewis Law Firm, Nuclear Energy Attorney
Partner

Thomas C. Poindexter represents nuclear energy clients in licensing, regulatory, and adjudicatory matters before the Nuclear Regulatory Commission (NRC) and the US Department of Energy (DOE). Trained as a nuclear engineer, he has served on several nuclear oversight committees for US utilities with nuclear power facilities, and currently assists nuclear power plants and material licensees in recovering from regulatory, investigation, and enforcement problems. Tom also focuses on emergent issue response, facility performance situations, and regulatory strategic planning....

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Grant Eskelsen, Morgan Lewis, Litigation lawyer
Associate

Grant W. Eskelsen handles a broad range of matters for the nuclear industry. He routinely counsels clients on compliance with nuclear-export related matters, including 10 CFR Part 810 and 10 CFR Part 110. Grant holds a top-secret security clearance and supports investigations and litigation involving classified information. He also provides due diligence support for energy transactions and supports clients in claims against the government for its ongoing failure to accept spent fuel from utilities. Grant also assists clients in internal investigations and litigation related to government contracting.

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