Fire Protection Compensatory Measures, 19701-19706 [2020-07341]

Download as PDF 19701 Proposed Rules Federal Register Vol. 85, No. 68 Wednesday, April 8, 2020 This section of the FEDERAL REGISTER contains notices to the public of the proposed issuance of rules and regulations. The purpose of these notices is to give interested persons an opportunity to participate in the rule making prior to the adoption of the final rules. NUCLEAR REGULATORY COMMISSION 10 CFR Part 50 [Docket No. PRM–50–115; NRC–2017–0132] Fire Protection Compensatory Measures Nuclear Regulatory Commission. ACTION: Petition for rulemaking; denial. AGENCY: The U.S. Nuclear Regulatory Commission (NRC) is denying Petition for Rulemaking (PRM)–50–115, ‘‘Petition for Rulemaking—Fire Protection Compensatory Measures,’’ dated May 1, 2017, submitted by David Lochbaum and Paul Gunter (the petitioners) on behalf of the Union of Concerned Scientists and Beyond Nuclear, respectively. The petitioners request that the NRC issue regulations that establish acceptable conditions for the use of compensatory measures (e.g., fire watches, surveillance cameras) during periods when fire protection regulations are not met, as well as define the maximum duration that compensatory measures may be relied upon. The NRC staff concludes that the petitioners did not present sufficient new information or arguments to warrant the requested changes to the regulations in light of the NRC’s relevant past decisions and current policies. Therefore, the NRC is denying PRM–50–115. DATES: The docket for PRM–50–115 is closed as of April 8, 2020. ADDRESSES: Please refer to Docket ID NRC–2017–0132 when contacting the NRC about the availability of information for this action. You can obtain publicly-available documents related to this action by any of the following methods: • Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC–2017–0132. Address questions about NRC dockets to Carol Gallagher; telephone: 301–415–3463; email: Carol.Gallagher@nrc.gov. For lotter on DSKBCFDHB2PROD with PROPOSALS SUMMARY: VerDate Sep<11>2014 17:42 Apr 07, 2020 Jkt 250001 technical questions, contact the individual listed in the FOR FURTHER INFORMATION CONTACT section of this document. • NRC’s Agencywide Documents Access and Management System (ADAMS): You may obtain publiclyavailable documents online in the ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/ adams.html. To begin the search, select ‘‘Begin Web-based ADAMS Search.’’ For problems with ADAMS, please contact the NRC’s Public Document Room (PDR) reference staff at 1–800–397–4209, 301– 415–4737, or by email to pdr.resource@ nrc.gov. For the convenience of the reader, instructions about obtaining materials referenced in this document are provided in Section IV, Availability of Documents. • NRC’s PDR: You may examine and purchase copies of public documents at the NRC’s PDR, Room O1–F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. FOR FURTHER INFORMATION CONTACT: Pamela Noto, Office of Nuclear Material Safety and Safeguards, telephone: 301– 415–6795, email: Pamela.Noto@nrc.gov, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001. SUPPLEMENTARY INFORMATION: I. Background and Summary of the Petition Title 10 of the Code of Federal Regulations (10 CFR) 2.802, ‘‘Petition for rulemaking—requirements for filing,’’ provides an opportunity for any interested person to petition the Commission to issue, amend, or rescind any regulation. The NRC received a petition dated May 1, 2017, from David Lochbaum and Paul Gunter on behalf of the Union of Concerned Scientists and Beyond Nuclear, respectively, regarding the establishment of acceptable conditions for the use of compensatory measures during periods when fire protection regulations are not met. The NRC assigned Docket Number PRM–50– 115 to this petition and published a notice of docketing and request for public comment in the Federal Register on October 6, 2017 (82 FR 46717). Fire protection programs at U.S. commercial nuclear power plants have the primary goal of minimizing both the probability of occurrence and the consequences of fire. The fire protection regulations under 10 CFR 50.48, ‘‘Fire PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 protection,’’ establish detailed requirements for fire protection plans at U.S. commercial nuclear power plants. Under § 50.48(a), each operating nuclear power plant licensee must have a fire protection plan that satisfies Criterion 3, ‘‘Fire protection,’’ of appendix A, ‘‘General Design Criteria for Nuclear Power Plants,’’ to 10 CFR part 50, ‘‘Domestic Licensing of Production and Utilization Facilities.’’ The fire protection plan describes the overall fire protection program and includes measures related to fire prevention, automatic detection, suppression and response, as well as personnel administrative requirements and the protection of safety-related structures, systems, and components in the event of a fire. The fire protection program for nuclear power plants uses a defense-indepth approach of administrative controls, fire protection systems and features, and post-fire safe-shutdown capability to achieve the required degree of reactor safety. Licensees of nuclear power plants that were operating before January 1, 1979, must meet the requirements of appendix R, ‘‘Fire Protection Program for Nuclear Power Facilities Operating Prior to January 1, 1979,’’ to 10 CFR part 50, except to the extent provided for in § 50.48(b). Licensees of facilities licensed to operate after January 1, 1979, must meet the facility-specific fire protection licensing basis that was reviewed and approved by the agency. As an alternative to § 50.48(b) or to the facility-specific fire protection licensing basis, licensees may also adopt and maintain a fire protection program that meets § 50.48(c), ‘‘National Fire Protection Association Standard (NFPA) 805,’’ which incorporates by reference NFPA 805, ‘‘Performance-Based Standard for Fire Protection for Light Water Reactor Electric Generating Plants, 2001 Edition,’’ with certain exceptions. The petitioners stated that the current guidance documents regarding compensatory measures are deficient due to the following issues: Issue 1: Compensatory Measure Guidance Documents Are Not Enforceable Expectations The petitioners assert that fire protection compensatory measures guidance documents are not regulations and that they, therefore, convey unenforceable expectations. As an E:\FR\FM\08APP1.SGM 08APP1 19702 Federal Register / Vol. 85, No. 68 / Wednesday, April 8, 2020 / Proposed Rules lotter on DSKBCFDHB2PROD with PROPOSALS example, the petitioners describe an inspection at the Waterford Steam Electric Station, Unit 3, in November 1995, where NRC inspectors discovered that workers had revised procedures to define a continuous fire watch from having someone in the area at all times to only having a roving fire watch check the area every 15 to 20 minutes. The petitioners assert that the NRC addressed the issue with a ‘‘generic nonanswer’’ and that no enforcement action was taken. In addition, the petitioners note that the NRC issued: (1) Information Notice 97–48, ‘‘Inadequate or Inappropriate Interim Fire Protection Compensatory Measures,’’ in July 1997, describing the discovery of a continuous fire watch that had been improperly redefined; and (2) Regulatory Guide 1.189, Revision 2, ‘‘Fire Protection for Nuclear Power Plants,’’ in October 2009, that included the definition of a fire watch. The petitioners observe that the guidance in the information notices and the regulatory guides are not NRC requirements or substitutes for regulations; therefore, compliance with these documents is not required. Issue 2: Compensatory Measure Guidance Documents Are Not Clear The petitioners observe that compensatory measure guidance documents are not clear and, therefore, create confusion for licensees, NRC inspectors and reviewers, and the public about what constitutes acceptable compensatory measures for compliance with fire protection regulations and the permissible durations of such measures. The petitioners provide examples of instances in which the NRC regions requested that NRC headquarters staff provide clarification of compensatory measures. Petitioners also noted that NRC inspectors frequently ask questions about the appropriateness and acceptability of fire protection compensatory measures. In addition, the petitioners assert that the available guidance and the lack of regulatory requirements do not help NRC inspectors or industry workers determine a reasonable time period to keep compensatory measures in place. In particular, the petitioners assert that compensatory measures routinely have been used for longstanding noncompliance with fire protection regulations and that not all fire protection compensatory measures may be acceptable for long periods of time. Issue 3: Compensatory Measure Guidance Documents Were Not Developed Through an Open Process The petitioners assert that, because compensatory measure guidance VerDate Sep<11>2014 17:42 Apr 07, 2020 Jkt 250001 documents were not developed through an open process, the public did not have opportunities to provide input on the acceptability of various fire protection compensatory measures. In particular, the petitioners assert that the public did not have opportunity to provide feedback on the acceptability or the duration of fire protection compensatory measures, as they had during the development of the NFPA 805 regulations in appendix R to 10 CFR part 50 and § 50.48(c) via the NRC’s rulemaking process. The petitioners also assert that because fire protection compensatory measures have been employed in lieu of compliance with the regulatory requirements in appendix R to 10 CFR part 50 and NFPA 805 for many years, the public’s legal rights have been infringed upon, and if compensatory measures will be used as a long-term protection against fire risks, the public deserves an opportunity to formally weigh in on their acceptability. Petitioners’ Requests The petitioners assert that when violations of the NRC’s fire protection regulations are discovered, compensatory measures intended to provide sufficient protection until compliance is restored have not been properly established. Therefore, the petitioners request that the NRC amend its regulations to include compensatory measures that would provide enforceable requirements for licensees. In particular, the petitioners request that the NRC issue a final rule that defines the compensatory measures authorized for use and the conditions under which such measures are required when the NRC’s fire protection regulations (e.g., § 50.48 and Criterion 3 of appendix A to 10 CFR part 50) are not met. In addition, the petitioners request that the final rule define the maximum duration that compensatory measures may be relied upon. II. Public Comments on the Petition A. Overview of Public Comments The docketing notice for the PRM invited interested persons to submit comments. The comment period closed on December 20, 2017. The NRC received 7 public comment submissions that collectively contain 27 individual comments. The NRC reviewed and considered all comments in its evaluation of the petition. B. NRC Response to Public Comments The NRC binned the comments on the petition into four categories. The following discussion provides a highlevel summary of each category and the PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 NRC’s response to the binned comments, including—if appropriate—a high-level summary of the basis for the response. 1. Enforceability of Guidance Documents Comment: Two commenters do not agree with the petitioners’ assertion regarding enforceability because compensatory measures are required by a facility’s operating license (through a standard license condition on fire protection). The fire protection license condition contained in each power reactor operating license requires the licensee to ‘‘implement and maintain in effect all provisions of the approved fire protection program as described in the updated final safety analysis report, and as approved in the NRC safety evaluation reports . . . .’’ Failing to implement the compensatory measures would, therefore, be a violation of the facility’s license condition and contrary to the updated final safety analysis report requirement, both of which are enforceable. NRC response: The NRC partially agrees with this comment. All licensees are required to comply with the applicable regulations and the facility operating license, which are enforceable. The NRC does not agree that guidance documents are enforceable. The NRC issues guidance to provide acceptable methods for meeting regulatory requirements. Licensees may voluntarily rely on methods contained in guidance documents to comply with regulations and the facility license, but the methods themselves are not enforceable as a part of the guidance. 2. Clarity of Guidance Documents Comment: Two commenters do not agree with the petitioners’ assertion regarding the clarity of guidance documents because facility-specific requirements for compensatory measures are sufficiently clear for licensees, the NRC, and the public. Section 50.48(a) requires each facility to have a fire protection program that includes specific features such as administrative controls. The fire protection program is either included directly or is incorporated by reference into the updated final safety analysis report for a facility. Expectations for fire protection compensatory measures are explicitly described for each facility, and are well-understood by the licensee and the NRC. NRC response: The NRC agrees with this comment. The use of compensatory measures is clearly described in each licensee’s approved fire protection program and in NRC guidance E:\FR\FM\08APP1.SGM 08APP1 Federal Register / Vol. 85, No. 68 / Wednesday, April 8, 2020 / Proposed Rules lotter on DSKBCFDHB2PROD with PROPOSALS documents. Additionally, the use of compensatory measures is discussed in NRC generic communications. For example, (1) Information Notice 97–48, ‘‘Inadequate or Inappropriate Interim Fire Protection Compensatory Measures,’’ alerted licensees to potential problems associated with the implementation of interim compensatory measures for degraded or inoperable plant fire protection features, or degraded and inoperable conditions associated with post-fire safe-shutdown capability; (2) Regulatory Issue Summary 2005–07, ‘‘Compensatory Measures to Satisfy the Fire Protection Program Requirements,’’ discusses how a licensee with the standard license condition for fire protection may change its approved FPP to use alternate compensatory measures; (3) NUREG/ CR–7135, ‘‘Compensatory and Alternative Regulatory MEasures for Nuclear Power Plant FIRE Protection (CARMEN–FIRE),’’ documents the history of compensatory measures, details the NRC’s regulatory framework established to ensure that they are appropriately implemented and maintained, and explores technologies that did not exist when the current plants were licensed that may offer an effective alternative to the measures specified in a licensee’s approved fire protection program and; (4) Inspection Manual Chapter 0326, ‘‘Operability Determinations,’’ contains guidance on the use of compensatory measures. 3. Development of Guidance Documents Through an Open Process Comment: Two commenters do not agree with the petitioners’ assertion that guidance documents were not developed through an open process because sufficient opportunities for public comment were available in the development of related guidance documents and the public had ample opportunity to participate. Specifically, Regulatory Guide 1.189, Revision 2, ‘‘Fire Protection for Nuclear Power Plants,’’ which discusses treatment of fire protection compensatory measures, was published for public comment under Draft Regulatory Guide DG–1214 in April 2009, and the NRC responded to over 90 public comments. NRC response: The NRC agrees with this comment. The NRC’s policy is to provide opportunity for public participation in the regulatory guidance development process under Management Directive 6.6, ‘‘Regulatory Guides.’’ This is to collect input from external stakeholders and allow for an open and collaborative environment. For example, the NRC staff revised the final version of Regulatory Guide 1.189, VerDate Sep<11>2014 17:42 Apr 07, 2020 Jkt 250001 Revision 2, taking into account comments received on Draft Regulatory Guide DG–1214, which was published for public comment in April 2009. (Revision 3 of Regulatory Guide 1.189 was subsequently issued in February 2018 to incorporate editorial changes and align it with current program guidance for regulatory guides. The changes were intended to improve clarity and did not alter the Staff Regulatory Guidance in Section C of the guide.) 4. List of Licensee Event Reports Comment: Two commenters do not agree with the petitioners’ assertion that the list of licensee event reports in attachment 1 to the petition is compelling testimony to the frequent need for fire protection compensatory measures. The commenters state that, contrary to the assertions in the petition, the licensee event reports show that licensees were following their fire protection program requirements by instituting fire watches when inoperable fire protection features occurred or were discovered. The volume of licensee event reports referenced is indicative of a program that provides little ambiguity or flexibility in implementation. This is an illustration of the process working as intended. NRC response: The NRC agrees that the licensee event reports listed in attachment 1 of the petition are indicative of regulations that appropriately address the safety concern. The requirements of 10 CFR 50.72, ‘‘Immediate notification requirements for operating nuclear power reactors,’’ and 10 CFR 50.73, ‘‘Licensee event report system,’’ apply to reporting certain events and conditions related to fire protection at nuclear power plants. Licensees report to the NRC fire events or fire protection deficiencies that meet the criteria of §§ 50.72 and 50.73, as appropriate under the requirements of these regulations. Additionally, one commenter identified unrelated concerns about the NRC’s regulations and practices that the NRC determined are outside the scope of PRM–50–115. Finally, several commenters provided general support for the petition, recommending that the NRC should initiate rulemaking to address the issues raised by the petitioners, but did not provide supporting rationale for this recommendation. III. Reasons for Denial The NRC is denying the petition because the petitioners did not present sufficient new information or arguments to warrant the requested changes to the PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 19703 regulations in light of the NRC’s relevant past decisions and current policies. The remaining paragraphs of Section III summarize the NRC’s evaluation of the three main issues identified in the petition. Issue 1: Compensatory Measure Guidance Documents Are Not Enforceable Expectations The guidance documents referenced in the petition (i.e., regulatory guides and information notices) are not directly enforceable. The NRC’s regulatory guides and information notices provide guidance to licensees and inform licensees of operating experience on how to implement specific parts of the NRC’s regulations, techniques used by the NRC to evaluate specific problems or postulated events, operating or analytical experience, and data needed by the NRC in its review of applications for licenses. Historically, at the time of licensing of most currently operating power reactors, compensatory measures were incorporated into the licensee’s technical specifications; accordingly, changes to compensatory measures required NRC review and approval. Subsequently, the NRC issued Generic Letter 86–10, ‘‘Implementation of Fire Protection Requirements,’’ which described a process for relocating the fire protection program, including management of compensatory measures, into the final safety analysis report for a facility, and adding a standard license condition to a facility’s operating license that requires the licensee to ‘‘implement and maintain in effect all provisions of the approved fire protection program as described in the updated final safety analysis report, and as approved in the NRC safety evaluation reports.’’ Through the standard fire protection license condition, a site’s fire protection program still requires fire protection compensatory measures for equipment that does not meet the functionality requirements. Section 50.48(a) requires each facility to have a fire protection program; this provision stipulates what that program must contain and includes administrative controls. The approved fire protection program is either described directly in the updated final safety analysis report or incorporated by reference. The licensee’s commitments related to fire protection compensatory measures (e.g., fire watches, surveillance cameras) are contained within the fire protection program. Therefore, failing to appropriately implement the fire protection compensatory measures would be a E:\FR\FM\08APP1.SGM 08APP1 19704 Federal Register / Vol. 85, No. 68 / Wednesday, April 8, 2020 / Proposed Rules lotter on DSKBCFDHB2PROD with PROPOSALS violation of the plant’s operating license, which is enforceable. The provisions of § 50.48(a) require, among other things, that any change to the approved fire protection program must meet Criterion 3 of appendix A to part 50. Under 10 CFR 50.48(a)(3), a licensee must retain each change to the fire protection program as a record until the Commission terminates the license. The licensee’s changes to the approved fire protection program are subject to inspection, as discussed in Inspection Procedure 71111.21N.05, ‘‘Fire Protection Team Inspection (FPTI).’’ In April 1996, the NRC responded to a petition under 10 CFR 2.206, ‘‘Requests for action under this subpart,’’ by issuing Director’s Decision (DD)–96–03, 42 NRC 183 (1996), which concluded that fire protection compensatory measures, as approved by the NRC on a facility-specific basis, ‘‘continue to ensure public health and safety.’’ Since this decision, the NRC has continued to evaluate fire protection compensatory measures on a facilityspecific basis. Thus, the current framework ensures adequate protection of public health and safety. Therefore, the NRC concludes that the petitioners’ assertion that compensatory measures guidance documents are unenforceable does not raise any new significant safety or security concerns that would support the request to amend the NRC’s regulations in light of relevant NRC past decisions and current policies. Issue 2: Compensatory Measures Guidance Documents Are Not Clear Section 50.48(a) requires each power reactor licensee to have a fire protection program. This provision stipulates what the fire protection program must contain and, as noted above, includes a requirement for administrative controls. Through the fire protection license condition, a licensee’s fire protection program requires fire protection compensatory measures for equipment that does not meet the functionality requirements. The fire protection license condition requires the licensee to ‘‘implement and maintain in effect all provisions of the approved fire protection program as described in the updated final safety analysis report, and as approved in the NRC safety evaluation reports.’’ The required compensatory measures for fire protection systems and equipment that do not meet the functionality requirements are explicitly stated within each site’s approved fire protection program. These compensatory measures were originally incorporated into most plant’s technical specifications. Thus, the initial VerDate Sep<11>2014 17:42 Apr 07, 2020 Jkt 250001 compensatory measures, and any subsequent changes, were reviewed and approved by the NRC. The NRC subsequently issued Generic Letter 86– 10 and Generic Letter 88–12, ‘‘Removal of Fire Protection Requirements From Technical Specifications,’’ which formed the basis for licensee assessments that provided the ability to make changes to approved fire protection program’s functionality and surveillance requirements, as well as to the compensatory measures required for nonfunctional fire protection systems and equipment. The licensees could implement such changes under the regulatory framework for fire protection programs that were removed from technical specifications without the NRC’s review and approval, provided that the licensee performed an analysis that demonstrated the change would not adversely affect the ability to achieve and maintain safe shutdown in the event of a fire. The NRC subsequently issued Information Notice 97–48, which provided examples of NRC inspection findings of licensees implementing inappropriate compensatory measures for nonfunctional fire protection systems and equipment. This information notice also reinforced the guidance provided to the NRC inspectors in Generic Letter 91–18, on the resolution of degraded and nonconforming conditions affecting structures, systems, and components relied upon for compliance with § 50.48. In addition, Information Notice 97–48 reinforced the NRC’s expectations of the timeliness of corrective actions documented in Generic Letter 91–18— that is, for structures, systems, and components that are not expressly subject to technical specifications and are determined to be inoperable, the licensee should assess the reasonable assurance of safety. If the assessment assures safety, then the facility may continue to operate while prompt corrective action is taken. Generic Letter 91–18 states that the timeliness of the corrective action should be commensurate with the safety significance of the issue. The NRC continued the expectation of timeliness of corrective actions from Generic Letter 91–18 in Regulatory Issue Summary 2005–20, ‘‘Revision to NRC Inspection Manual Part 9900 Technical Guidance, ‘Operability Determinations & Functionality Assessments for Resolution of Degraded or Nonconforming Conditions Adverse to Quality or Safety,’ ’’ which superseded Generic Letter 91–18. This expectation was further clarified in Part 9900’s superseding document, Inspection PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 Manual Chapter 0326, ‘‘Operability Determinations & Functionality Assessments for Conditions Adverse to Quality or Safety,’’ which states, When evaluating the effect of a condition on an SSC’s capability to perform any of its specified safety functions, a licensee may decide to implement compensatory measures, as an interim action, until final corrective action to resolve the condition is completed . . . In general, these measures should have minimal impact on the operators or plant operations, should be relatively simple to implement, and should be documented. Conditions calling for a compensatory measure can place additional burden on plant operators and inspectors should verify the licensee addresses the conditions commensurate with its safety significance per 10 CFR 50 Appendix B Criterion XVI. It is important to note that the majority of long-term compensatory measures that are/were in place for noncompliance with fire protection regulations were put in place for regulatory issues that were the subject of Enforcement Guidance Memoranda (see Enforcement Guidance Memorandum 07–004, ‘‘Enforcement Discretion for Post-Fire Manual Actions Used As Compensatory Measures for Fire Induced Circuit Failures,’’ and Enforcement Guidance Memorandum 09–002, ‘‘Enforcement Discretion for Fire Induced Circuit Faults’’), or for facilities that were transitioning their licensing basis to meet the requirements of § 50.48(c). For facilities that are not transitioning their licensing basis to § 50.48(c), the deadline for compliance with the referenced Enforcement Guidance Memoranda has expired. Therefore, where a licensee is still relying on compensatory measures for the noncompliances discussed in the Enforcement Guidance Memoranda, and permanent corrective actions have not been taken, these instances would be considered by the NRC for enforcement action. For facilities that are transitioning their licensing basis to § 50.48(c), the compensatory measures would be removed once a facility achieves full compliance with their new licensing basis. The deadlines for achieving full compliance are detailed in each facility’s respective safety evaluation report and fire protection license condition. Any required actions that have not been completed by the deadlines stated in the safety evaluation report are considered by the NRC for enforcement action. Additionally, the NRC issued Regulatory Issue Summary 2005–07, which informed licensees that alternate compensatory measures as otherwise required by the approved fire protection E:\FR\FM\08APP1.SGM 08APP1 Federal Register / Vol. 85, No. 68 / Wednesday, April 8, 2020 / Proposed Rules program may be used for a degraded or inoperable fire protection feature under certain circumstances. The regulatory issue summary was not meant to provide specific examples of acceptable alternate compensatory measures. As stated in the regulatory issue summary, the purpose was to discuss how a licensee, with the standard license condition for fire protection, may change the approved fire protection program to use alternate compensatory measures. The regulatory issue summary also states that a licensee may change the approved fire protection program to implement a different compensatory measure or combination of measures. The licensee must perform a documented evaluation of the impact of the proposed alternate compensatory measure to the fire protection program and its adequacy compared to the compensatory measure required by the fire protection program. The documented evaluation must demonstrate that the alternate compensatory measure would not adversely affect the ability to achieve and maintain safe shutdown in the event of a fire. The regulatory issue summary provides additional insights into what the documented evaluation should consider, stating, [t]he evaluation of the alternate compensatory measure should incorporate risk insights regarding the location, quantity, and type of combustible material in the fire area; the presence of ignition sources and their likelihood of occurrence; the automatic fire suppression and fire detection capability in the fire area; the manual fire suppression capability in the fire area; and the human error probability where applicable. lotter on DSKBCFDHB2PROD with PROPOSALS Additional guidance was provided in Regulatory Guide 1.189, Revision 2, on what would constitute an acceptable evaluation to determine that the change to the fire protection program would not adversely affect the ability to achieve and maintain safe shutdown in the event of a fire. Regulatory Guide 1.189, Revision 3, states that, within the context of the standard fire protection license condition, the phrase ‘‘not adversely affect the ability to achieve and maintain safe shutdown in the event of a fire,’’ means to maintain sufficient safety margins. The regulatory guide also states that, with sufficient safety margins, the following applies: 1 Fire protection programs in U.S. nuclear power plants use the concept of defense in depth to achieve the required degree of fire safety by using echelons of protection from fire effects. The three echelons for fire protection are: (1) Prevent the fire from starting, i.e., plants maintain fire safety by taking measures to minimize the likelihood that VerDate Sep<11>2014 17:42 Apr 07, 2020 Jkt 250001 a. Codes and standards or their alternatives approved for use by the NRC are met. b. Safety analysis acceptance criteria in the licensing basis are met or proposed revisions provide sufficient margin to account for analysis and data uncertainty. Employing appropriate compensatory measures on a short-term basis is an integral part of the NRC-approved fire protection program. The NRC recognizes that some compensatory measures have been in place for an extended period of time. However, this does not introduce a safety concern. The fire protection programs at nuclear power plants are built upon the concept of defense in depth 1 with layers of protective features. The technical deficiencies being compensated for do not invalidate the defense-in-depth approach. Further, licensees track fire protection program deficiencies involving compensatory measures at their respective nuclear plants. The NRC’s resident inspectors review corrective action programs on a daily basis and are aware of the compensatory measures in place at reactor units. Additionally, the NRC inspects a sample of these compensatory measures for adequacy during routine fire protection inspections. Therefore, the NRC concludes that fire protection compensatory measures guidance documents are clear and were not meant to provide specific examples of acceptable alternate compensatory measures. As stated in Regulatory Issue Summary 2005–07, a licensee with the standard license condition for fire protection may change the approved fire protection program to use alternate compensatory measures. Issue 3: Compensatory Measure Guidance Documents Were Not Developed Through an Open Process It is the policy of the NRC that activities are undertaken in an open and transparent manner; staff decisions are sound and consider the need for and impact of proposed actions; and regulatory guidance will be provided to identify acceptable methods for applicants and licensees to meet applicable laws and regulations, when needed. The NRC views openness as a critical element for achieving the agency’s mission to ensure the safe use fires might occur; (2) rapidly detect, control, and promptly extinguish those fires that do occur, i.e., plants establish fire protection systems (sprinklers, fire water systems, etc.) to extinguish (and minimize the consequences of) any fires that do occur; and (3) protect structures, systems, and components important to safety so that a fire not PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 19705 of radioactive materials for beneficial civilian purposes while protecting people and the environment. This is expressed in Management Directive 6.6, ‘‘Regulatory Guides,’’ as an objective to ensure that stakeholders (e.g., licensees, applicants, and members of the public and Agreement States) and individuals and offices within NRC all have an opportunity to consider and comment on a new or substantively changed draft regulatory guide before it is issued as a final (effective) Regulatory Guide. After considering the comments received on a document, the NRC publishes the final version. The NRC provided opportunities for public comment in the development of guidance documents related to fire protection compensatory measures, and the public had many opportunities to participate. For example, Regulatory Guide 1.189, Revision 2, was issued for public comment as Draft Regulatory Guide (DG)–1214 on April 21, 2009 (74 FR 18262). The NRC responded to 97 public comments on DG–1214 on October 31, 2009 (74 FR 56673). The NRC held a public meeting on May 20, 2009 to discuss comments and questions on DG–1214; and the Advisory Committee on Reactor Safeguards also held a meeting on October 9, 2009, to discuss comments and questions on DG–1214. As addressed above, the staff revised the guidance document based on comments submitted by the public. Revision 3 to Regulatory Guide 1.189 was not issued for public comment because the changes were intended to improve clarity and did not alter the Staff Regulatory Guidance in Section C of the guide. A notice of opportunity for public comment on Regulatory Issue Summary 2005–07 was not published because it is informational. Therefore, the NRC does not agree with the petitioners’ assertion that compensatory measures guidance documents were not developed through an open process. IV. Availability of Documents The following table provides information about how to access the documents referenced in this document. The ADDRESSES section of this document provides additional information about how to access ADAMS. promptly extinguished by the fire suppression activities will not prevent the safe shutdown of the plant, i.e., plants rely on redundant safety systems (e.g., installing fire barriers) that are unlikely to be damaged by a single fire. E:\FR\FM\08APP1.SGM 08APP1 19706 Federal Register / Vol. 85, No. 68 / Wednesday, April 8, 2020 / Proposed Rules Document April 24, 1986 ............... August 2, 1988 ............. November 7, 1991 ........ Generic Letter 86–10, ‘‘Implementation of Fire Protection Requirements’’ ....................................... Generic Letter 88–12, ‘‘Removal of Fire Protection Requirements from Technical Specifications’’ Generic Letter 91–18, ‘‘Information to Licensees Regarding Two NRC Inspection Manual Sections of Resolution of Degraded and Nonconforming Conditions and on Operability’’. 1994 petition under 10 CFR 2.206 ..................................................................................................... DD–96–03, ‘‘Director’s Decision Under 10 CFR 2.206’’ .................................................................... Information Notice 97–48, ‘‘Inadequate or Inappropriate Interim Fire Protection Compensatory Measures’’. Generic Letter 91–18, Revision 1, ‘‘Information to Licensees Regarding Two NRC Inspection Manual Sections of Resolution of Degraded and Nonconforming Conditions and on Operability’’. NFPA 805, ‘‘Performance-Based Standard for Fire Protection for Light Water Reactor Electric Generating Plants’’. Regulatory Issue Summary 2005–07, ‘‘Compensatory Measures to Satisfy the Fire Protection Program Requirements’’. Enforcement Guidance Memorandum 07-004, ‘‘Enforcement Discretion for Post-Fire Manual Actions Used As Compensatory Measures for Fire Induced Circuit Failures’’. DG–1214, ‘‘Fire Protection for Nuclear Power Plants’’ ...................................................................... Notice of Issuance and Availability of Draft Regulatory Guide, DG–1214 ........................................ Enforcement Guidance Memorandum 09-002, ‘‘Enforcement Discretion for Fire Induced Circuit Faults’’. Notice of Meeting to Provide Overview and Discuss Comments and Questions on Draft Regulatory Guide DG–1214, ‘‘Fire Protection For Nuclear Power Plants’’. Meeting Summary of May 20, 2009 Public Meeting Regarding Draft Fire Protection Regulatory Guide DG–1214. ACRS Report on the Draft Final Revision 2 to Regulatory Guide 1.189 (DG–1214), ‘‘Fire Protection for Nuclear Power Plants’’. NRC Responses to Comments on Draft Regulatory Guide 1.189, Revision 2 (DG-1214) ............... Regulatory Guide 1.189, Revision 2, ‘‘Fire Protection for Nuclear Power Plants’’ ............................ Staff Requirements-SECY–11–0032, ‘‘Consideration of the Cumulative Effects of Regulation in the Rulemaking Process’’. Inspection Manual Chapter 0326, ‘‘Operability Determinations & Functionality Assessments for Conditions Adverse to Quality or Safety’’. NUREG/CR–7135, ‘‘Compensatory and Alternative Regulatory MEasures for Nuclear Power Plant FIRE Protection (CARMEN–FIRE)’’. Petition for Rulemaking (PRM–50–115) ............................................................................................. Petition for Rulemaking; Notice of Docketing and Request for Comment ......................................... Public Comments on Petition for Rulemaking: Fire Protection Compensatory Measures ................ October 21, 1994 .......... April 3, 1996 ................. July 9, 1997 .................. October 8, 1997 ............ January 13, 2001 .......... April 19, 2005 ............... June 30, 2007 ............... April 1, 2009 ................. April 21, 2009 ............... May 14, 2009 ................ May 6, 2009 .................. June 10, 2009 ............... October 20, 2009 .......... October 31, 2009 .......... October 2009 ................ October 11, 2011 .......... November 20, 2017 ...... June 2015 ..................... May 1, 2017 .................. October 6, 2017 ............ December 20, 2017 ...... V. Conclusion The NRC completed an evaluation of the petition and determined that the issues in the petition did not raise any significant safety or security concerns. In addition, the NRC concludes that the arguments presented in the petition do not support the requested revisions to its regulations. Finally, the NRC reaffirms that its existing regulations continue to provide reasonable assurance of adequate protection of public health and safety. For the reasons cited in this document, the NRC is denying PRM–50–115. lotter on DSKBCFDHB2PROD with PROPOSALS ADAMS accession No. or Federal Register citation Date Dated at Rockville, Maryland, this 2nd day of April, 2020. For the Nuclear Regulatory Commission. Annette L. Vietti-Cook, Secretary of the Commission. [FR Doc. 2020–07341 Filed 4–7–20; 8:45 am] BILLING CODE 7590–01–P VerDate Sep<11>2014 17:42 Apr 07, 2020 Jkt 250001 FEDERAL DEPOSIT INSURANCE CORPORATION 12 CFR Parts 303 and 337 RIN 3064–AE94 Unsafe and Unsound Banking Practices: Brokered Deposits Restrictions; Extension of Comment Period Federal Deposit Insurance Corporation (FDIC). ACTION: Notice of proposed rulemaking: Extension of comment period. AGENCY: On February 10, 2020, the FDIC published in the Federal Register a Notice of Proposed Rulemaking (NPR) entitled ‘‘Unsafe and Unsound Banking Practices: Brokered Deposits Restrictions,’’ proposing revisions to its regulations relating to the brokered deposits restrictions that apply to less than well capitalized insured depository institutions. The NPR provided for a 60day comment period, which would have closed on April 10, 2020. The FDIC has SUMMARY: PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 ML031150322 ML031150471 ML031140549 ML17311B356 ML082401211 ML070180068 ML031200706 Available at www.nfpa.org ML042360547 ML071830345 ML090070453 74 FR 18262 ML090300446 ML091240146 ML091480283 ML092880515 ML092580570 ML092580550 ML112840466 ML16302A480 ML15226A446 ML17146A393 82 FR 46717 ML18088A076 determined that an extension of the comment period until June 9, 2020, is appropriate. This action will allow interested parties additional time to analyze the proposal and prepare comments. DATES: The comment period for the brokered deposits-related NPR published on February 10, 2020 (85 FR 7453),1 is extended from April 10, 2020, to June 9, 2020. ADDRESSES: You may submit comments, identified by RIN 3064–AE94, on the notice of proposed rulemaking using any of the following methods: • Agency website: https:// www.fdic.gov/regulations/laws/federal/. Follow the instructions for submitting comments on the agency website. • Email: comments@fdic.gov. Include ‘‘RIN 3064–AE94’’ in the subject line. • Mail: Robert E. Feldman, Executive Secretary, Attention: Comments/RIN 3064–AE94, Federal Deposit Insurance Corporation, 550 17th Street NW, Washington, DC 20429. 1 85 E:\FR\FM\08APP1.SGM FR 7453 (Feb. 10, 2020). 08APP1

Agencies

[Federal Register Volume 85, Number 68 (Wednesday, April 8, 2020)]
[Proposed Rules]
[Pages 19701-19706]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-07341]


========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

========================================================================


Federal Register / Vol. 85, No. 68 / Wednesday, April 8, 2020 / 
Proposed Rules

[[Page 19701]]



NUCLEAR REGULATORY COMMISSION

10 CFR Part 50

[Docket No. PRM-50-115; NRC-2017-0132]


Fire Protection Compensatory Measures

AGENCY: Nuclear Regulatory Commission.

ACTION: Petition for rulemaking; denial.

-----------------------------------------------------------------------

SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is denying 
Petition for Rulemaking (PRM)-50-115, ``Petition for Rulemaking--Fire 
Protection Compensatory Measures,'' dated May 1, 2017, submitted by 
David Lochbaum and Paul Gunter (the petitioners) on behalf of the Union 
of Concerned Scientists and Beyond Nuclear, respectively. The 
petitioners request that the NRC issue regulations that establish 
acceptable conditions for the use of compensatory measures (e.g., fire 
watches, surveillance cameras) during periods when fire protection 
regulations are not met, as well as define the maximum duration that 
compensatory measures may be relied upon. The NRC staff concludes that 
the petitioners did not present sufficient new information or arguments 
to warrant the requested changes to the regulations in light of the 
NRC's relevant past decisions and current policies. Therefore, the NRC 
is denying PRM-50-115.

DATES: The docket for PRM-50-115 is closed as of April 8, 2020.

ADDRESSES: Please refer to Docket ID NRC-2017-0132 when contacting the 
NRC about the availability of information for this action. You can 
obtain publicly-available documents related to this action by any of 
the following methods:
     Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2017-0132. Address 
questions about NRC dockets to Carol Gallagher; telephone: 301-415-
3463; email: [email protected]. For technical questions, contact 
the individual listed in the FOR FURTHER INFORMATION CONTACT section of 
this document.
     NRC's Agencywide Documents Access and Management System 
(ADAMS): You may obtain publicly-available documents online in the 
ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select ``Begin Web-based ADAMS 
Search.'' For problems with ADAMS, please contact the NRC's Public 
Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or 
by email to [email protected]. For the convenience of the reader, 
instructions about obtaining materials referenced in this document are 
provided in Section IV, Availability of Documents.
     NRC's PDR: You may examine and purchase copies of public 
documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 
Rockville Pike, Rockville, Maryland 20852.

FOR FURTHER INFORMATION CONTACT: Pamela Noto, Office of Nuclear 
Material Safety and Safeguards, telephone: 301-415-6795, email: 
[email protected], U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001.

SUPPLEMENTARY INFORMATION: 

I. Background and Summary of the Petition

    Title 10 of the Code of Federal Regulations (10 CFR) 2.802, 
``Petition for rulemaking--requirements for filing,'' provides an 
opportunity for any interested person to petition the Commission to 
issue, amend, or rescind any regulation. The NRC received a petition 
dated May 1, 2017, from David Lochbaum and Paul Gunter on behalf of the 
Union of Concerned Scientists and Beyond Nuclear, respectively, 
regarding the establishment of acceptable conditions for the use of 
compensatory measures during periods when fire protection regulations 
are not met. The NRC assigned Docket Number PRM-50-115 to this petition 
and published a notice of docketing and request for public comment in 
the Federal Register on October 6, 2017 (82 FR 46717).
    Fire protection programs at U.S. commercial nuclear power plants 
have the primary goal of minimizing both the probability of occurrence 
and the consequences of fire. The fire protection regulations under 10 
CFR 50.48, ``Fire protection,'' establish detailed requirements for 
fire protection plans at U.S. commercial nuclear power plants. Under 
Sec.  50.48(a), each operating nuclear power plant licensee must have a 
fire protection plan that satisfies Criterion 3, ``Fire protection,'' 
of appendix A, ``General Design Criteria for Nuclear Power Plants,'' to 
10 CFR part 50, ``Domestic Licensing of Production and Utilization 
Facilities.'' The fire protection plan describes the overall fire 
protection program and includes measures related to fire prevention, 
automatic detection, suppression and response, as well as personnel 
administrative requirements and the protection of safety-related 
structures, systems, and components in the event of a fire. The fire 
protection program for nuclear power plants uses a defense-in-depth 
approach of administrative controls, fire protection systems and 
features, and post-fire safe-shutdown capability to achieve the 
required degree of reactor safety.
    Licensees of nuclear power plants that were operating before 
January 1, 1979, must meet the requirements of appendix R, ``Fire 
Protection Program for Nuclear Power Facilities Operating Prior to 
January 1, 1979,'' to 10 CFR part 50, except to the extent provided for 
in Sec.  50.48(b). Licensees of facilities licensed to operate after 
January 1, 1979, must meet the facility-specific fire protection 
licensing basis that was reviewed and approved by the agency.
    As an alternative to Sec.  50.48(b) or to the facility-specific 
fire protection licensing basis, licensees may also adopt and maintain 
a fire protection program that meets Sec.  50.48(c), ``National Fire 
Protection Association Standard (NFPA) 805,'' which incorporates by 
reference NFPA 805, ``Performance-Based Standard for Fire Protection 
for Light Water Reactor Electric Generating Plants, 2001 Edition,'' 
with certain exceptions.
    The petitioners stated that the current guidance documents 
regarding compensatory measures are deficient due to the following 
issues:

Issue 1: Compensatory Measure Guidance Documents Are Not Enforceable 
Expectations

    The petitioners assert that fire protection compensatory measures 
guidance documents are not regulations and that they, therefore, convey 
unenforceable expectations. As an

[[Page 19702]]

example, the petitioners describe an inspection at the Waterford Steam 
Electric Station, Unit 3, in November 1995, where NRC inspectors 
discovered that workers had revised procedures to define a continuous 
fire watch from having someone in the area at all times to only having 
a roving fire watch check the area every 15 to 20 minutes. The 
petitioners assert that the NRC addressed the issue with a ``generic 
non-answer'' and that no enforcement action was taken. In addition, the 
petitioners note that the NRC issued: (1) Information Notice 97-48, 
``Inadequate or Inappropriate Interim Fire Protection Compensatory 
Measures,'' in July 1997, describing the discovery of a continuous fire 
watch that had been improperly redefined; and (2) Regulatory Guide 
1.189, Revision 2, ``Fire Protection for Nuclear Power Plants,'' in 
October 2009, that included the definition of a fire watch. The 
petitioners observe that the guidance in the information notices and 
the regulatory guides are not NRC requirements or substitutes for 
regulations; therefore, compliance with these documents is not 
required.

Issue 2: Compensatory Measure Guidance Documents Are Not Clear

    The petitioners observe that compensatory measure guidance 
documents are not clear and, therefore, create confusion for licensees, 
NRC inspectors and reviewers, and the public about what constitutes 
acceptable compensatory measures for compliance with fire protection 
regulations and the permissible durations of such measures. The 
petitioners provide examples of instances in which the NRC regions 
requested that NRC headquarters staff provide clarification of 
compensatory measures. Petitioners also noted that NRC inspectors 
frequently ask questions about the appropriateness and acceptability of 
fire protection compensatory measures. In addition, the petitioners 
assert that the available guidance and the lack of regulatory 
requirements do not help NRC inspectors or industry workers determine a 
reasonable time period to keep compensatory measures in place. In 
particular, the petitioners assert that compensatory measures routinely 
have been used for longstanding noncompliance with fire protection 
regulations and that not all fire protection compensatory measures may 
be acceptable for long periods of time.

Issue 3: Compensatory Measure Guidance Documents Were Not Developed 
Through an Open Process

    The petitioners assert that, because compensatory measure guidance 
documents were not developed through an open process, the public did 
not have opportunities to provide input on the acceptability of various 
fire protection compensatory measures. In particular, the petitioners 
assert that the public did not have opportunity to provide feedback on 
the acceptability or the duration of fire protection compensatory 
measures, as they had during the development of the NFPA 805 
regulations in appendix R to 10 CFR part 50 and Sec.  50.48(c) via the 
NRC's rulemaking process. The petitioners also assert that because fire 
protection compensatory measures have been employed in lieu of 
compliance with the regulatory requirements in appendix R to 10 CFR 
part 50 and NFPA 805 for many years, the public's legal rights have 
been infringed upon, and if compensatory measures will be used as a 
long-term protection against fire risks, the public deserves an 
opportunity to formally weigh in on their acceptability.
Petitioners' Requests
    The petitioners assert that when violations of the NRC's fire 
protection regulations are discovered, compensatory measures intended 
to provide sufficient protection until compliance is restored have not 
been properly established. Therefore, the petitioners request that the 
NRC amend its regulations to include compensatory measures that would 
provide enforceable requirements for licensees. In particular, the 
petitioners request that the NRC issue a final rule that defines the 
compensatory measures authorized for use and the conditions under which 
such measures are required when the NRC's fire protection regulations 
(e.g., Sec.  50.48 and Criterion 3 of appendix A to 10 CFR part 50) are 
not met. In addition, the petitioners request that the final rule 
define the maximum duration that compensatory measures may be relied 
upon.

II. Public Comments on the Petition

A. Overview of Public Comments

    The docketing notice for the PRM invited interested persons to 
submit comments. The comment period closed on December 20, 2017. The 
NRC received 7 public comment submissions that collectively contain 27 
individual comments. The NRC reviewed and considered all comments in 
its evaluation of the petition.

B. NRC Response to Public Comments

    The NRC binned the comments on the petition into four categories. 
The following discussion provides a high-level summary of each category 
and the NRC's response to the binned comments, including--if 
appropriate--a high-level summary of the basis for the response.
1. Enforceability of Guidance Documents
    Comment: Two commenters do not agree with the petitioners' 
assertion regarding enforceability because compensatory measures are 
required by a facility's operating license (through a standard license 
condition on fire protection). The fire protection license condition 
contained in each power reactor operating license requires the licensee 
to ``implement and maintain in effect all provisions of the approved 
fire protection program as described in the updated final safety 
analysis report, and as approved in the NRC safety evaluation reports . 
. . .'' Failing to implement the compensatory measures would, 
therefore, be a violation of the facility's license condition and 
contrary to the updated final safety analysis report requirement, both 
of which are enforceable.
    NRC response: The NRC partially agrees with this comment. All 
licensees are required to comply with the applicable regulations and 
the facility operating license, which are enforceable. The NRC does not 
agree that guidance documents are enforceable. The NRC issues guidance 
to provide acceptable methods for meeting regulatory requirements. 
Licensees may voluntarily rely on methods contained in guidance 
documents to comply with regulations and the facility license, but the 
methods themselves are not enforceable as a part of the guidance.
2. Clarity of Guidance Documents
    Comment: Two commenters do not agree with the petitioners' 
assertion regarding the clarity of guidance documents because facility-
specific requirements for compensatory measures are sufficiently clear 
for licensees, the NRC, and the public. Section 50.48(a) requires each 
facility to have a fire protection program that includes specific 
features such as administrative controls. The fire protection program 
is either included directly or is incorporated by reference into the 
updated final safety analysis report for a facility. Expectations for 
fire protection compensatory measures are explicitly described for each 
facility, and are well-understood by the licensee and the NRC.
    NRC response: The NRC agrees with this comment. The use of 
compensatory measures is clearly described in each licensee's approved 
fire protection program and in NRC guidance

[[Page 19703]]

documents. Additionally, the use of compensatory measures is discussed 
in NRC generic communications. For example, (1) Information Notice 97-
48, ``Inadequate or Inappropriate Interim Fire Protection Compensatory 
Measures,'' alerted licensees to potential problems associated with the 
implementation of interim compensatory measures for degraded or 
inoperable plant fire protection features, or degraded and inoperable 
conditions associated with post-fire safe-shutdown capability; (2) 
Regulatory Issue Summary 2005-07, ``Compensatory Measures to Satisfy 
the Fire Protection Program Requirements,'' discusses how a licensee 
with the standard license condition for fire protection may change its 
approved FPP to use alternate compensatory measures; (3) NUREG/CR-7135, 
``Compensatory and Alternative Regulatory MEasures for Nuclear Power 
Plant FIRE Protection (CARMEN-FIRE),'' documents the history of 
compensatory measures, details the NRC's regulatory framework 
established to ensure that they are appropriately implemented and 
maintained, and explores technologies that did not exist when the 
current plants were licensed that may offer an effective alternative to 
the measures specified in a licensee's approved fire protection program 
and; (4) Inspection Manual Chapter 0326, ``Operability 
Determinations,'' contains guidance on the use of compensatory 
measures.
3. Development of Guidance Documents Through an Open Process
    Comment: Two commenters do not agree with the petitioners' 
assertion that guidance documents were not developed through an open 
process because sufficient opportunities for public comment were 
available in the development of related guidance documents and the 
public had ample opportunity to participate. Specifically, Regulatory 
Guide 1.189, Revision 2, ``Fire Protection for Nuclear Power Plants,'' 
which discusses treatment of fire protection compensatory measures, was 
published for public comment under Draft Regulatory Guide DG-1214 in 
April 2009, and the NRC responded to over 90 public comments.
    NRC response: The NRC agrees with this comment. The NRC's policy is 
to provide opportunity for public participation in the regulatory 
guidance development process under Management Directive 6.6, 
``Regulatory Guides.'' This is to collect input from external 
stakeholders and allow for an open and collaborative environment. For 
example, the NRC staff revised the final version of Regulatory Guide 
1.189, Revision 2, taking into account comments received on Draft 
Regulatory Guide DG-1214, which was published for public comment in 
April 2009. (Revision 3 of Regulatory Guide 1.189 was subsequently 
issued in February 2018 to incorporate editorial changes and align it 
with current program guidance for regulatory guides. The changes were 
intended to improve clarity and did not alter the Staff Regulatory 
Guidance in Section C of the guide.)
4. List of Licensee Event Reports
    Comment: Two commenters do not agree with the petitioners' 
assertion that the list of licensee event reports in attachment 1 to 
the petition is compelling testimony to the frequent need for fire 
protection compensatory measures. The commenters state that, contrary 
to the assertions in the petition, the licensee event reports show that 
licensees were following their fire protection program requirements by 
instituting fire watches when inoperable fire protection features 
occurred or were discovered. The volume of licensee event reports 
referenced is indicative of a program that provides little ambiguity or 
flexibility in implementation. This is an illustration of the process 
working as intended.
    NRC response: The NRC agrees that the licensee event reports listed 
in attachment 1 of the petition are indicative of regulations that 
appropriately address the safety concern. The requirements of 10 CFR 
50.72, ``Immediate notification requirements for operating nuclear 
power reactors,'' and 10 CFR 50.73, ``Licensee event report system,'' 
apply to reporting certain events and conditions related to fire 
protection at nuclear power plants. Licensees report to the NRC fire 
events or fire protection deficiencies that meet the criteria of 
Sec. Sec.  50.72 and 50.73, as appropriate under the requirements of 
these regulations.
    Additionally, one commenter identified unrelated concerns about the 
NRC's regulations and practices that the NRC determined are outside the 
scope of PRM-50-115.
    Finally, several commenters provided general support for the 
petition, recommending that the NRC should initiate rulemaking to 
address the issues raised by the petitioners, but did not provide 
supporting rationale for this recommendation.

III. Reasons for Denial

    The NRC is denying the petition because the petitioners did not 
present sufficient new information or arguments to warrant the 
requested changes to the regulations in light of the NRC's relevant 
past decisions and current policies. The remaining paragraphs of 
Section III summarize the NRC's evaluation of the three main issues 
identified in the petition.

Issue 1: Compensatory Measure Guidance Documents Are Not Enforceable 
Expectations

    The guidance documents referenced in the petition (i.e., regulatory 
guides and information notices) are not directly enforceable. The NRC's 
regulatory guides and information notices provide guidance to licensees 
and inform licensees of operating experience on how to implement 
specific parts of the NRC's regulations, techniques used by the NRC to 
evaluate specific problems or postulated events, operating or 
analytical experience, and data needed by the NRC in its review of 
applications for licenses.
    Historically, at the time of licensing of most currently operating 
power reactors, compensatory measures were incorporated into the 
licensee's technical specifications; accordingly, changes to 
compensatory measures required NRC review and approval. Subsequently, 
the NRC issued Generic Letter 86-10, ``Implementation of Fire 
Protection Requirements,'' which described a process for relocating the 
fire protection program, including management of compensatory measures, 
into the final safety analysis report for a facility, and adding a 
standard license condition to a facility's operating license that 
requires the licensee to ``implement and maintain in effect all 
provisions of the approved fire protection program as described in the 
updated final safety analysis report, and as approved in the NRC safety 
evaluation reports.'' Through the standard fire protection license 
condition, a site's fire protection program still requires fire 
protection compensatory measures for equipment that does not meet the 
functionality requirements.
    Section 50.48(a) requires each facility to have a fire protection 
program; this provision stipulates what that program must contain and 
includes administrative controls. The approved fire protection program 
is either described directly in the updated final safety analysis 
report or incorporated by reference. The licensee's commitments related 
to fire protection compensatory measures (e.g., fire watches, 
surveillance cameras) are contained within the fire protection program. 
Therefore, failing to appropriately implement the fire protection 
compensatory measures would be a

[[Page 19704]]

violation of the plant's operating license, which is enforceable. The 
provisions of Sec.  50.48(a) require, among other things, that any 
change to the approved fire protection program must meet Criterion 3 of 
appendix A to part 50. Under 10 CFR 50.48(a)(3), a licensee must retain 
each change to the fire protection program as a record until the 
Commission terminates the license. The licensee's changes to the 
approved fire protection program are subject to inspection, as 
discussed in Inspection Procedure 71111.21N.05, ``Fire Protection Team 
Inspection (FPTI).''
    In April 1996, the NRC responded to a petition under 10 CFR 2.206, 
``Requests for action under this subpart,'' by issuing Director's 
Decision (DD)-96-03, 42 NRC 183 (1996), which concluded that fire 
protection compensatory measures, as approved by the NRC on a facility-
specific basis, ``continue to ensure public health and safety.'' Since 
this decision, the NRC has continued to evaluate fire protection 
compensatory measures on a facility-specific basis. Thus, the current 
framework ensures adequate protection of public health and safety. 
Therefore, the NRC concludes that the petitioners' assertion that 
compensatory measures guidance documents are unenforceable does not 
raise any new significant safety or security concerns that would 
support the request to amend the NRC's regulations in light of relevant 
NRC past decisions and current policies.

Issue 2: Compensatory Measures Guidance Documents Are Not Clear

    Section 50.48(a) requires each power reactor licensee to have a 
fire protection program. This provision stipulates what the fire 
protection program must contain and, as noted above, includes a 
requirement for administrative controls. Through the fire protection 
license condition, a licensee's fire protection program requires fire 
protection compensatory measures for equipment that does not meet the 
functionality requirements. The fire protection license condition 
requires the licensee to ``implement and maintain in effect all 
provisions of the approved fire protection program as described in the 
updated final safety analysis report, and as approved in the NRC safety 
evaluation reports.''
    The required compensatory measures for fire protection systems and 
equipment that do not meet the functionality requirements are 
explicitly stated within each site's approved fire protection program. 
These compensatory measures were originally incorporated into most 
plant's technical specifications. Thus, the initial compensatory 
measures, and any subsequent changes, were reviewed and approved by the 
NRC. The NRC subsequently issued Generic Letter 86-10 and Generic 
Letter 88-12, ``Removal of Fire Protection Requirements From Technical 
Specifications,'' which formed the basis for licensee assessments that 
provided the ability to make changes to approved fire protection 
program's functionality and surveillance requirements, as well as to 
the compensatory measures required for nonfunctional fire protection 
systems and equipment.
    The licensees could implement such changes under the regulatory 
framework for fire protection programs that were removed from technical 
specifications without the NRC's review and approval, provided that the 
licensee performed an analysis that demonstrated the change would not 
adversely affect the ability to achieve and maintain safe shutdown in 
the event of a fire.
    The NRC subsequently issued Information Notice 97-48, which 
provided examples of NRC inspection findings of licensees implementing 
inappropriate compensatory measures for nonfunctional fire protection 
systems and equipment. This information notice also reinforced the 
guidance provided to the NRC inspectors in Generic Letter 91-18, on the 
resolution of degraded and nonconforming conditions affecting 
structures, systems, and components relied upon for compliance with 
Sec.  50.48.
    In addition, Information Notice 97-48 reinforced the NRC's 
expectations of the timeliness of corrective actions documented in 
Generic Letter 91-18--that is, for structures, systems, and components 
that are not expressly subject to technical specifications and are 
determined to be inoperable, the licensee should assess the reasonable 
assurance of safety. If the assessment assures safety, then the 
facility may continue to operate while prompt corrective action is 
taken. Generic Letter 91-18 states that the timeliness of the 
corrective action should be commensurate with the safety significance 
of the issue.
    The NRC continued the expectation of timeliness of corrective 
actions from Generic Letter 91-18 in Regulatory Issue Summary 2005-20, 
``Revision to NRC Inspection Manual Part 9900 Technical Guidance, 
`Operability Determinations & Functionality Assessments for Resolution 
of Degraded or Nonconforming Conditions Adverse to Quality or Safety,' 
'' which superseded Generic Letter 91-18. This expectation was further 
clarified in Part 9900's superseding document, Inspection Manual 
Chapter 0326, ``Operability Determinations & Functionality Assessments 
for Conditions Adverse to Quality or Safety,'' which states,

    When evaluating the effect of a condition on an SSC's capability 
to perform any of its specified safety functions, a licensee may 
decide to implement compensatory measures, as an interim action, 
until final corrective action to resolve the condition is completed 
. . .
    In general, these measures should have minimal impact on the 
operators or plant operations, should be relatively simple to 
implement, and should be documented.
    Conditions calling for a compensatory measure can place 
additional burden on plant operators and inspectors should verify 
the licensee addresses the conditions commensurate with its safety 
significance per 10 CFR 50 Appendix B Criterion XVI.

    It is important to note that the majority of long-term compensatory 
measures that are/were in place for noncompliance with fire protection 
regulations were put in place for regulatory issues that were the 
subject of Enforcement Guidance Memoranda (see Enforcement Guidance 
Memorandum 07-004, ``Enforcement Discretion for Post-Fire Manual 
Actions Used As Compensatory Measures for Fire Induced Circuit 
Failures,'' and Enforcement Guidance Memorandum 09-002, ``Enforcement 
Discretion for Fire Induced Circuit Faults''), or for facilities that 
were transitioning their licensing basis to meet the requirements of 
Sec.  50.48(c). For facilities that are not transitioning their 
licensing basis to Sec.  50.48(c), the deadline for compliance with the 
referenced Enforcement Guidance Memoranda has expired. Therefore, where 
a licensee is still relying on compensatory measures for the 
noncompliances discussed in the Enforcement Guidance Memoranda, and 
permanent corrective actions have not been taken, these instances would 
be considered by the NRC for enforcement action.
    For facilities that are transitioning their licensing basis to 
Sec.  50.48(c), the compensatory measures would be removed once a 
facility achieves full compliance with their new licensing basis. The 
deadlines for achieving full compliance are detailed in each facility's 
respective safety evaluation report and fire protection license 
condition. Any required actions that have not been completed by the 
deadlines stated in the safety evaluation report are considered by the 
NRC for enforcement action.
    Additionally, the NRC issued Regulatory Issue Summary 2005-07, 
which informed licensees that alternate compensatory measures as 
otherwise required by the approved fire protection

[[Page 19705]]

program may be used for a degraded or inoperable fire protection 
feature under certain circumstances. The regulatory issue summary was 
not meant to provide specific examples of acceptable alternate 
compensatory measures. As stated in the regulatory issue summary, the 
purpose was to discuss how a licensee, with the standard license 
condition for fire protection, may change the approved fire protection 
program to use alternate compensatory measures. The regulatory issue 
summary also states that a licensee may change the approved fire 
protection program to implement a different compensatory measure or 
combination of measures. The licensee must perform a documented 
evaluation of the impact of the proposed alternate compensatory measure 
to the fire protection program and its adequacy compared to the 
compensatory measure required by the fire protection program. The 
documented evaluation must demonstrate that the alternate compensatory 
measure would not adversely affect the ability to achieve and maintain 
safe shutdown in the event of a fire. The regulatory issue summary 
provides additional insights into what the documented evaluation should 
consider, stating,

[t]he evaluation of the alternate compensatory measure should 
incorporate risk insights regarding the location, quantity, and type 
of combustible material in the fire area; the presence of ignition 
sources and their likelihood of occurrence; the automatic fire 
suppression and fire detection capability in the fire area; the 
manual fire suppression capability in the fire area; and the human 
error probability where applicable.

    Additional guidance was provided in Regulatory Guide 1.189, 
Revision 2, on what would constitute an acceptable evaluation to 
determine that the change to the fire protection program would not 
adversely affect the ability to achieve and maintain safe shutdown in 
the event of a fire. Regulatory Guide 1.189, Revision 3, states that, 
within the context of the standard fire protection license condition, 
the phrase ``not adversely affect the ability to achieve and maintain 
safe shutdown in the event of a fire,'' means to maintain sufficient 
safety margins. The regulatory guide also states that, with sufficient 
safety margins, the following applies:
    a. Codes and standards or their alternatives approved for use by 
the NRC are met.
    b. Safety analysis acceptance criteria in the licensing basis are 
met or proposed revisions provide sufficient margin to account for 
analysis and data uncertainty.
    Employing appropriate compensatory measures on a short-term basis 
is an integral part of the NRC-approved fire protection program. The 
NRC recognizes that some compensatory measures have been in place for 
an extended period of time. However, this does not introduce a safety 
concern.
    The fire protection programs at nuclear power plants are built upon 
the concept of defense in depth \1\ with layers of protective features. 
The technical deficiencies being compensated for do not invalidate the 
defense-in-depth approach. Further, licensees track fire protection 
program deficiencies involving compensatory measures at their 
respective nuclear plants. The NRC's resident inspectors review 
corrective action programs on a daily basis and are aware of the 
compensatory measures in place at reactor units. Additionally, the NRC 
inspects a sample of these compensatory measures for adequacy during 
routine fire protection inspections.
---------------------------------------------------------------------------

    \1\ Fire protection programs in U.S. nuclear power plants use 
the concept of defense in depth to achieve the required degree of 
fire safety by using echelons of protection from fire effects. The 
three echelons for fire protection are: (1) Prevent the fire from 
starting, i.e., plants maintain fire safety by taking measures to 
minimize the likelihood that fires might occur; (2) rapidly detect, 
control, and promptly extinguish those fires that do occur, i.e., 
plants establish fire protection systems (sprinklers, fire water 
systems, etc.) to extinguish (and minimize the consequences of) any 
fires that do occur; and (3) protect structures, systems, and 
components important to safety so that a fire not promptly 
extinguished by the fire suppression activities will not prevent the 
safe shutdown of the plant, i.e., plants rely on redundant safety 
systems (e.g., installing fire barriers) that are unlikely to be 
damaged by a single fire.
---------------------------------------------------------------------------

    Therefore, the NRC concludes that fire protection compensatory 
measures guidance documents are clear and were not meant to provide 
specific examples of acceptable alternate compensatory measures. As 
stated in Regulatory Issue Summary 2005-07, a licensee with the 
standard license condition for fire protection may change the approved 
fire protection program to use alternate compensatory measures.

Issue 3: Compensatory Measure Guidance Documents Were Not Developed 
Through an Open Process

    It is the policy of the NRC that activities are undertaken in an 
open and transparent manner; staff decisions are sound and consider the 
need for and impact of proposed actions; and regulatory guidance will 
be provided to identify acceptable methods for applicants and licensees 
to meet applicable laws and regulations, when needed. The NRC views 
openness as a critical element for achieving the agency's mission to 
ensure the safe use of radioactive materials for beneficial civilian 
purposes while protecting people and the environment. This is expressed 
in Management Directive 6.6, ``Regulatory Guides,'' as an objective to 
ensure that stakeholders (e.g., licensees, applicants, and members of 
the public and Agreement States) and individuals and offices within NRC 
all have an opportunity to consider and comment on a new or 
substantively changed draft regulatory guide before it is issued as a 
final (effective) Regulatory Guide. After considering the comments 
received on a document, the NRC publishes the final version.
    The NRC provided opportunities for public comment in the 
development of guidance documents related to fire protection 
compensatory measures, and the public had many opportunities to 
participate. For example, Regulatory Guide 1.189, Revision 2, was 
issued for public comment as Draft Regulatory Guide (DG)-1214 on April 
21, 2009 (74 FR 18262). The NRC responded to 97 public comments on DG-
1214 on October 31, 2009 (74 FR 56673). The NRC held a public meeting 
on May 20, 2009 to discuss comments and questions on DG-1214; and the 
Advisory Committee on Reactor Safeguards also held a meeting on October 
9, 2009, to discuss comments and questions on DG-1214. As addressed 
above, the staff revised the guidance document based on comments 
submitted by the public. Revision 3 to Regulatory Guide 1.189 was not 
issued for public comment because the changes were intended to improve 
clarity and did not alter the Staff Regulatory Guidance in Section C of 
the guide. A notice of opportunity for public comment on Regulatory 
Issue Summary 2005-07 was not published because it is informational.
    Therefore, the NRC does not agree with the petitioners' assertion 
that compensatory measures guidance documents were not developed 
through an open process.

IV. Availability of Documents

    The following table provides information about how to access the 
documents referenced in this document. The ADDRESSES section of this 
document provides additional information about how to access ADAMS.

[[Page 19706]]



----------------------------------------------------------------------------------------------------------------
                                                                                ADAMS accession No. or Federal
                   Date                                 Document                       Register citation
----------------------------------------------------------------------------------------------------------------
April 24, 1986...........................  Generic Letter 86-10,              ML031150322
                                            ``Implementation of Fire
                                            Protection Requirements''.
August 2, 1988...........................  Generic Letter 88-12, ``Removal    ML031150471
                                            of Fire Protection Requirements
                                            from Technical Specifications''.
November 7, 1991.........................  Generic Letter 91-18,              ML031140549
                                            ``Information to Licensees
                                            Regarding Two NRC Inspection
                                            Manual Sections of Resolution of
                                            Degraded and Nonconforming
                                            Conditions and on Operability''.
October 21, 1994.........................  1994 petition under 10 CFR 2.206.  ML17311B356
April 3, 1996............................  DD-96-03, ``Director's Decision    ML082401211
                                            Under 10 CFR 2.206''.
July 9, 1997.............................  Information Notice 97-48,          ML070180068
                                            ``Inadequate or Inappropriate
                                            Interim Fire Protection
                                            Compensatory Measures''.
October 8, 1997..........................  Generic Letter 91-18, Revision 1,  ML031200706
                                            ``Information to Licensees
                                            Regarding Two NRC Inspection
                                            Manual Sections of Resolution of
                                            Degraded and Nonconforming
                                            Conditions and on Operability''.
January 13, 2001.........................  NFPA 805, ``Performance-Based      Available at www.nfpa.org
                                            Standard for Fire Protection for
                                            Light Water Reactor Electric
                                            Generating Plants''.
April 19, 2005...........................  Regulatory Issue Summary 2005-07,  ML042360547
                                            ``Compensatory Measures to
                                            Satisfy the Fire Protection
                                            Program Requirements''.
June 30, 2007............................  Enforcement Guidance Memorandum    ML071830345
                                            07[dash]004, ``Enforcement
                                            Discretion for Post[dash]Fire
                                            Manual Actions Used As
                                            Compensatory Measures for Fire
                                            Induced Circuit Failures''.
April 1, 2009............................  DG-1214, ``Fire Protection for     ML090070453
                                            Nuclear Power Plants''.
April 21, 2009...........................  Notice of Issuance and             74 FR 18262
                                            Availability of Draft Regulatory
                                            Guide, DG-1214.
May 14, 2009.............................  Enforcement Guidance Memorandum    ML090300446
                                            09[dash]002, ``Enforcement
                                            Discretion for Fire Induced
                                            Circuit Faults''.
May 6, 2009..............................  Notice of Meeting to Provide       ML091240146
                                            Overview and Discuss Comments
                                            and Questions on Draft
                                            Regulatory Guide DG-1214, ``Fire
                                            Protection For Nuclear Power
                                            Plants''.
June 10, 2009............................  Meeting Summary of May 20, 2009    ML091480283
                                            Public Meeting Regarding Draft
                                            Fire Protection Regulatory Guide
                                            DG-1214.
October 20, 2009.........................  ACRS Report on the Draft Final     ML092880515
                                            Revision 2 to Regulatory Guide
                                            1.189 (DG-1214), ``Fire
                                            Protection for Nuclear Power
                                            Plants''.
October 31, 2009.........................  NRC Responses to Comments on       ML092580570
                                            Draft Regulatory Guide 1.189,
                                            Revision 2 (DG[dash]1214).
October 2009.............................  Regulatory Guide 1.189, Revision   ML092580550
                                            2, ``Fire Protection for Nuclear
                                            Power Plants''.
October 11, 2011.........................  Staff Requirements-SECY-11-0032,   ML112840466
                                            ``Consideration of the
                                            Cumulative Effects of Regulation
                                            in the Rulemaking Process''.
November 20, 2017........................  Inspection Manual Chapter 0326,    ML16302A480
                                            ``Operability Determinations &
                                            Functionality Assessments for
                                            Conditions Adverse to Quality or
                                            Safety''.
June 2015................................  NUREG/CR-7135, ``Compensatory and  ML15226A446
                                            Alternative Regulatory MEasures
                                            for Nuclear Power Plant FIRE
                                            Protection (CARMEN-FIRE)''.
May 1, 2017..............................  Petition for Rulemaking (PRM-50-   ML17146A393
                                            115).
October 6, 2017..........................  Petition for Rulemaking; Notice    82 FR 46717
                                            of Docketing and Request for
                                            Comment.
December 20, 2017........................  Public Comments on Petition for    ML18088A076
                                            Rulemaking: Fire Protection
                                            Compensatory Measures.
----------------------------------------------------------------------------------------------------------------

V. Conclusion

    The NRC completed an evaluation of the petition and determined that 
the issues in the petition did not raise any significant safety or 
security concerns. In addition, the NRC concludes that the arguments 
presented in the petition do not support the requested revisions to its 
regulations. Finally, the NRC reaffirms that its existing regulations 
continue to provide reasonable assurance of adequate protection of 
public health and safety. For the reasons cited in this document, the 
NRC is denying PRM-50-115.

    Dated at Rockville, Maryland, this 2nd day of April, 2020.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2020-07341 Filed 4-7-20; 8:45 am]
 BILLING CODE 7590-01-P