NRC Approves Staff Withdrawal of Recommendations on Reactor Oversight Program Improvements

Morgan Lewis - Up & Atom

The NRC’s Commissioners approved an NRC Staff request on August 5 to withdraw two SECY memoranda related to improvements of the effectiveness and efficiency of the Reactor Oversight Process (ROP). These SECY papers were initially issued in 2018 (SECY-18-113) and 2019 (SECY-19-067), and sought Commission approval for what the NRC Staff recommended would be potential improvements to the ROP as a whole. In withdrawing these two SECY papers, the Commission’s brief Staff Requirements Memorandum (SRM) provided little explanation as to why the Staff requested withdrawal of the two SECY papers.

Background on the ROP and the Two SECYs

The NRC’s efforts to update the ROP date back at least several years. For SECY-18-113, the activities go back to questions about whether the level of effort for certain Component Design Bases inspections was appropriate, which were originally raised during the development of the NRC’s budget for CY 2015. For SECY-19-067, the Staff began developing recommendations with the NRC’s establishment of an internal “Transformation Team” to identify “potential transformation changes to the NRC’s regulatory framework, culture and infrastructure.” SECY-19-067 at 3. As part of this initiative, the Nuclear Energy Institute (NEI) provided 27 recommendations for improving the ROP, and the NRC and NEI staffed a cross-organizational team to address these recommendations.

The NRC Staff presented SECY 18-113, the first of the two proposals, to the Commission in November 2018, after “extensive communication with members of the public and the nuclear industry,” and after receiving what the Staff described as “generally favorable” feedback from external stakeholders on its proposal. SECY 118-113 requested approval to:

  • Extend the periodicity of engineering inspections from three to four years.
  • Consolidate and eliminate some inspection activities and develop two new types of inspections.
  • Focus inspection activities on operating experience, aging management, and facility changes.

The NRC Staff expected that these recommendations would “improve the effectiveness and efficiency of engineering inspections within the ROP.”

Similarly, SECY 19-067, which the NRC Staff presented to the Commission in June 2019, also sought to enhance the ROP while balancing protection of the public health and safety with available NRC Staff resources. Specifically, SECY 19-067 recommended:

  • Considering Greater-than-Green (GTG) findings (i.e., “White,” “Yellow,” or “Red” findings) as closed out for purposes of the ROP’s Action Matrix when the NRC’s supplemental inspection after the finding was completed (rather than waiting four calendar quarters from the close out inspection as in the current process).
  • Treating GTG Performance Indicators as Action Matrix inputs until the supplemental inspection is successfully completed (rather than treating a Performance Indicator as no longer being an Action Matrix input as soon as it returns to “Green” status).
  • Revising the description of a “White” finding from one having "low-to-moderate" safety significance to one having "low" safety significance, as well as revising the description of a “Yellow” inspection finding from one with "substantial" safety significance to one having "moderate" safety significance.
  • Changing the frequency of certain inspections, such as the Problem Identification & Resolution (PI&R) inspection from every two years to every three years, and allowing overlap between the periodic PI&R inspection and the annual sample inspections performed by resident and regional inspectors.

Public interest in SECY-19-067, including requests from the House of Representatives’ Appropriations and the Energy and Commerce Committees, led the NRC to publish a Federal Register notice of the SECY in August 2019 offering a 60-day comment period. A total of 90 public comments were submitted. After evaluating these comments, the NRC Staff determined that there were no new perspectives that were not already considered during the development of SECY-19-067, and therefore no changes were necessary. This conclusion in January 2020 apparently changed in 2021 for unstated reasons.

The SRM Authorizing Withdrawal of the SECY and Potential Consequences

We are not aware of the NRC Staff previewing any concerns with either SECY in recent public meetings discussing the ROP. Indeed, the NRC’s most recent semi-annual report to Congress on its licensing activities during the second quarter of FY 2021 still predicted that it would complete the comprehensive baseline inspection program review that was part of the SECY-19-067 ROP review by the end of August. Furthermore, the most recent discussion of either SECY in a ROP public meeting appears to have been during a October 2020 ROP session, when the NRC Staff reported on the status of a draft report reviewing potential changes to the PI&R inspection process as suggested in SECY-19-067. Similarly, the NRC Staff’s annual ROP Self-Assessment for CY 2020, issued in April 2021, discussed similar progress on the PI&R inspection review, and provided no indication that any issues would lead it to seek withdrawal of either SECY.

The document discussing the NRC Staff’s request to withdraw the two SECYs has not been made public, although press reports indicated it was transmitted to the Commissioners via email. The SRM summarized the NRC Staff’s rationale as noting that there was “new information and additional staff activities” that were not considered in the recommendations contained in the two SECYs. No public information regarding the Commissioner’s SRM voting record on this issue has been made available. It is also unclear what specific “new information” or “additional staff activities” were not considered in the original SECYs or why it took more than two years to identify the need to withdraw these SECYs.

Nevertheless, the SRM notes that the NRC Staff “intends to reevaluate the basis for the previous recommendations and reengage with internal and external stakeholders, including regional inspection staff, members of the public, and the nuclear industry, on these and any other proposed changes to the Reactor Oversight Process.” Although both SECYs contained recommendations on using risk-informed information and considerations on what specific inspections and oversight activities are to take place, it is unclear whether the NRC wishes to revisit a broader use of these tools as part of its oversight. Press reports in recent days have also indicated that the NRC remains committed to “transforming” the ROP, but what that transformation will look like now is uncertain.

Morgan Lewis advises clients with ROP, including responding to NRC inspection findings. We will continue to track developments and changes to the ROP.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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