ML20196D919

Informs That NRC Has Completed Review of Issues Raised in of Appeal to NRC Edo.Submits List Summarizing Actions Taken Since

ML20196D919
Person / Time
Site:	Maine Yankee
Issue date:	06/22/1999
From:	Miraglia F NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
To:	Meisner M Maine Yankee
References
NUDOCS 9906240388
Download: ML20196D919 (3)

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UNITED STATES I NUCLEAR REGULATORY COMMISSION i 4 E WASHINGTON, D.C. 2006H001

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% June 22, 1999 l Mr. Michael J. Meisner, President l Maine Yankee Atomic Power Company 321 Old Ferry Road Wiscasset, Maine 04578-4922

SUBJECT:

APPEAL OF DIRECTOR'S DECISION ON MAINE YANKEE ATOMIC POWER COMPANY'S BACKFIT CLAIM REGARDING BEYOND DESIGN BASIS ACCIDENTS IN SPENT FUEL POOLS l

Dear Mr. Meisner:

1 The purpose of this letter is to inform you that I have completed my review of the issues raised in your December 7,1998, letter of appeal to the Nuclear Regulatory Commission (NRC)

Executive Director for Operations (EDO).

In your letter to the NRC dated February 17,1998, you stated your belief that the criteria being used by the NRC to evaluate Maine Yankee's exemption request for relief from offsite emergency preparedness requirements constituted a backfit, as described in 10 CFR 50.109.

The following list summarizes actions taken since that point in time.

April 21,1998 The NRC staff responded by letter to you with the basis for why the staff's actions did not constitute a backfit.

, May 6,1998 in a letter to the EDO you appealed the April 21,1998, decision. I June 25,1998 in response to your May 6,1998, appeal, the EDO sent a letter informing you that he had requested the Director of the Office of Nuclear Reactor Regulation (NRR) to appoint a backfit review panel consisting of senior NRC managers, who were not involved in the initial backfit determination, to review your appeal. /

November 6,1998 The Director of NRR informed you of the backfit review panel's finding that the staff had not imposed a backfit on Maine Yankee.

c December 7,1998 in~a letter to the EDO, you again appealed the backfit review panel's j -[ \

findings. pp'.yg Based upon my review, I have confirmed the previous finding that the staff did not backfit Maine Yankee in evaluating your request for relief from the offsite emergency preparedness requirements of 10 CFR 50.54(q). Specifically, NRC' requests for additional information or the imposition of special conditions associated with approving exemption requests are outside the j realm of the backfit rule and do not constitute an imposition of new requirements by the staff.

l These situations are not covered by the backfit rule.

9906240388 990622 PDR ADOCK 05000309 h[I W PDR i

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To grant an exemption from the regulations pursuant to 10 CFR 50.12, the NRC must make certain basic findings that the exemption is authorized by law, will not present an undue risk to the public health and safety and is consistent with the common defense and security. In considering exemption requests, the staff may find a need for additional information or analysis from the licensee to determine whether these basic findings can be made. A staff request for such additional information or analysis is not covered by the backfit rule but the staff must have i a reasonable basis to justify its request. See, for example,10 CFR 50.54(f) which makes it clear that the staff must have " reasons for each information request prior to issuance to ensure l that the burden to be imposed is justified in view of the potential safety significance of the issue i to be addressed in the requested information." I believe that the staff's requests for information were justified in this case. ,

The backfit review panel made a number of observations regarding the process used by the staff to review the exemption request for relief from offsite emergency preparedness requirements. Subsequently, at the direction of the Director of NRR, the staff responded to the issues raised in the backfit review panel report. The enclosures to this letter provide the details of activities associated with the backfit review panel.

This letter closes out the actions taken in response to the issues raised in your December 7, 1998, letter to the EDO. Please contact me if you desire to discuss these issues further.

Sincerely, f.

AAQ.

Frank $1iraglia, ,

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Deputy Executive Director for Regulatory Programs

Enclosures:

as stated Docket No. 50-309 cc: See next page 1

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. Maine Yankee Atomic Power Company Docket No. 50-309 cc: )

I Mr. Charles B. Brinkman Friends of the Coast Manager - Washington Nuclear P.O. Box 98 -

Operations Edgecomb, ME 04556 ABB Combustion Engineering 12300 Twinbrook Parkway, Guite 330 Mr. William O' Dell l Rockville, MD 20852 Operations Director Maine Yankee Atomic Power Company Thomas G. Dignan, Jr., Esquire 321 Old Ferry Road Ropes & Gray Wiscasset, ME 04578-4922 One International Place Boston, MA 02110-2624 Mr. George Zinke, Director l Nuclear Safety and Regulatory Affairs l Mr. Oldis Vanags Maine Yankee Atomic Power Company State Nuclear Safety Advisor 321 Old Ferry Road State Planning Office Wiscasset, ME 04578-4922 State House Station #38 Augusta, ME 04333 Mr. Jonathan M. Block Attorney at Law Mr. P. L Anderson, Project Manager P.O. Box 566 Yankee Atomic Electric Company Putney, VT 05346-0566 l 580 Main Street - j Bolton, MA 01740 1398 Mr. Michael J. Meisner, President j MaineYankee Atomic Power Company Regional Administrator, Region 1 321 Old Ferry Road U.S. Nuclear Regulatory Comrnission Wiscasset, ME 04578-4922 475 Allendale Road King of Prussia, PA 19406 Mr. Robert Fraser, Director  ;

Engineering i First Selectman of Wiscasset Maine Yankee Atomic Power Company Municipal BuildinD 321 Old Ferry Road U.S. Route 1 Wiscasset, ME 04578-4922 Wiscasset, ME 04576 Mr. Patrick J. Dostie Mr. Mark Roberts State of Maine Nuclear Safety l U.S. Nuclear Regulatory Commission Inspector )

475 Allendale Road Maine Yankee Atomic Power Company King of Prussia, PA 19406 321 Old Ferry Road Wiscasset, ME 04578-4922 Mary Ann 1.ynch, Esquire Maine Yankee Atomic Power Company Mr. Mark Ferri, Vice President q 321 Old Ferry Road Decommissioning Director Wiscasset, ME 04578-4922 Maine Yankee Atomic Power Company 321 Old Ferry Road Mr. Neil Sheehan Wiscasset, ME 04578 4922 U.S. Nuclear Regulatory Commission 475 Allendale Road King of Prussia, PA 19406

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4. ENCLOSURES p~% 4 UNITED STATES p

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• WASHINGTON, D.C. 20555 4 001 l

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• May 19,.1999 J

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MEMORAND.UM TO: William D. Travers .f Executive Director for Operations FROM: irector e Office of Nuclear Reactor Regulation

SUBJECT:

DIRECTOR'S REVIEW OF MAINE YANKEE ATOMIC l POWER COMPANY'S BACKFIT CLAIM REGARDING l BEYOND-DESIGN-BASIS SPENT FUEL POOL ACCIDENTS l AND NRR STAFF RESPONSE TO BACKFIT REVIEW PANEL FINDINGS

.packaround By letter dated February 17 1998, Maine Yankee Atomic Power Company (MYAPCo) claimed that the criteria being used ry the U.S. Nuclear Regulatory Commission (NRC) staff to evaluate a Maine Yankee exemption tequest constituted a backfit as described in 10 CFR 50.109. On April 21,1998, Mr. Jack Goe, Acting Director, Division of Reactor Program Management, responded to the backfit claim by stating that the NRC staff had determined that its decision to l require a spent fuel pool heatup analysis before approving MYAPCo's request for exemption l from offsite eniergency preparedness requirements did not constitute a backfit. On May 6, 1998, MYAPCo appealed the NRC backfit determination. In response to the appeal, the Deputy Director of the Office of Nuclear Reactor Regulation (NRR) appointed a backfit review panel to evaluate the appeal. On October 28,1998, the backfit review panel made its recommendations to me (Attachment 1). The panel determined that the staff did not impose a backfit while reviewing MYAPCo's exemption request. However, the panel also made a number of observations and conclusions regarding the process used by the staff in reviewing MYAPCo's emergency preparedness exemption request.

Evaluation On February 10,1999, at my request, the NRR staff responded to the backfit review panel's repert by providing me with the staff's views on the findings of the panel (Attachment 2). The staff commented on the backfit review panel's findings in four areas: (1) the panel's concurrence with MYAPCo's claim that the application of the backfit rule does not depend on whether a change comes from an NRC initiative or a licensee application, (2) the level of detail of the review conducted by the staff, (3) the timeliness of the review, and (4) the applicability of certain technical conclusions relied upon by the panel. My conclusions in each of these areas are given below.

1. MYAPCO's assertion that the aoofication of the backfit rule does not deoend on whether a chanae comes from an NRC initiative or a licensee aoolication in recent discussions with staff from the Office of the General Counsel, the agency's position on this issue has been clarified. The backfit rule was intended to ensure that once the NRC issues a license, the terms and conditions for operating under the license and regulations are MOUcNU d

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W. R Traws May 19, 1999 not arbitrarily changed after the fact by the Commission. The backfit rule precludes the staff from imposing new or different requirements or interpretations without meeting the specific criteria established by 10 CFR 50.109.~ s An exemption request made by a licensee is a request to do what is D91 currently permitted under its license and applicable regulations and represents a proposed deviation from how the l facility is licensed. When considering exemptions, the staff has an obligation to satisfy additional considerations about why it is acceptable to allow a licensee to operate outside of existing regulations. Requests for additional information (RAls) or the imposition of special 3 conditions associated with approving exemption requests are outside the realm'of the backfit l rule and do not constitute an imposition of new requirements by the staff. In these situations, i licensees are not protected by the backfit rule; instead,10 CFR 50.54(f) applies and requires the staff to provide a reasonable basis to justify the need for the additionalinformation. If the staff's request is not related to the issues associated with the exemption, a licensee could challenge it as arbitrary and capricious under 10 CFR 50.54(f). Application of the backfit rule in a manner similar to its application to exemptions also holds for staff RAls associated with review of licensee-requested license amendments and proposed changes to technical apecifications. In these examples management must exercise appropriate oversight and ensure agency expectations are met. Management will become the final arbiter. Thus, staff RAls, in response to licensee-initiated license amendment requests or exemptions, do not constitute backfits.

2. I.evel of detail of review conducted by the staff I have reviewed the issues associated with the level of detail of the staff's review and I have concluded that when the MYAPCo exemption request was submitted, the licensee did not provide an adequate deterministic cw probabilistic basis for approving the exemption. Thus, the staff had to request additionalinformation from MYAPCo. When responses to some of the staff's questions were not provided by MYAPCo, the NRR staff developed a technical basis that was adequate for approval of the exemption. However, to avoid the need for issuing similar exemptions in future situations, I have directed the staff to undertake a risk-informed rulemaking effort to establish integrated requirements for decommissioning reactors in the areas of emergency preparedness, onsite and offsite insurance, and safeguards. We expect to be able to provide the Commission with a technical framework and schedules for resolution of these issues by June 18,1999. The establishment of risk-informed regulations for decommissioning reactors in these areas could eliminate the need for routine staff reviews of exemptions and allow licensees to reduce expenditures as soon as possible while ensuring adequate protection of public health and safety. Predictability is a key element in developing

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riskinformed regulations.  !

3. Timeliness of the staff review in its February 10,1999, response to the backfit review panel's report, the staff explained that licensing action timeliness for recent decommissioning plants met the current NRR goals for timeliness. However, I believe that decommissioning licensing action timeliness can still be  !

improved. Promulgation of new regulations as described above cou!d eliminate the need for

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' Hay 19, 1999 W. D. Travers 3

. many routine NRC reviews in these areas. Thus, limited staff and licensee resources could be redirected to other areas requiring licensing reviews, such as decommissjoning technical specifications. As the need to review and approve exemptions is reduced' the timeliness of other reviews will be enhanced.

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4. Ano!!mhi!ity of certain technical conclusions relied uoon by the backfit review canel After reviewing the information available in this area at the time the issue was under consideration, I have concluded that for a high-density spent fuel pool drained of all coolant,

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rapid zircaloy fuel cladding oxidation could occur for at least 2 to 3 years after plant shutdown.

The staff was justified in requiring site-specific analyses before approving the emergency preparedness exemption requests. However, as concluded by the backfit review panel, requiring licensees to perform and the NRC to review such analyses is burdensome and time consuming for both licensees and the NRC. The risk-informed rulemaking effort that I have initiated is intended to result in new decommissioning regulations that will better define the extent to which plant-specific heatup analyses will be required.

Another technical issue raised by the staff is the expected consequences of rapid zircaloy oxidation (zircaloy fire) if it should occur. Information in NUREG-1353, "Beyond D'esign Basis Accidents in Spent Fuel Pools," appears to conflict with information in NUREG/CR-6451, "A Safety and Regulatory Assessment of Generic BWR and PWR Permanently Shutdown Nuclear l Power Plants." The staff's technical review will also examine the consequences of rapid zircaloy oxidation and this will be used to develop the new risk-informed regulations for permanently shutdown plants.

Conclusion l

1 reviewed the staff's February 10,1999, analysis of the backfit review panel's findings and have concluded that when the staff reviewed the exemption request, the available guidance appropriately led the staff to conclude that a site-specific analysis considering the zircaloy fire scenario was needed before the exemption could be granted. Although the existing -

information regarding the possible consequences of a zircaloy fire is conflicting in certain areas, the studies that I have initiated will clarify these uncertainties and will lead to new risk-informed decommissioning regulations.

Docket No. 50-309 Attachments: As stated (2)

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W. D. Travers May 19. 1999 many routine NRC reviews in these areas. Thus, limited staff and licensee resources cobid be .

redirected to other areas requiring licensing reviews, such as decommissigning technical i

specifications. As the need to review and approve exemptions is reduced, the timeliness of other reviews will be enhanced.

5. Anoticability of certain technical conclusions relied upon by the backfit review oand After reviewing the information available in this area at the time the issue was under consideration, I have concluded that for a high-density spent fuel pool drained of all coolant, rapid zircaloy fuel cladding oxidation could occur for at least 2 to 3 years after plant shutdown.

The staff was justified in requiring site-specific analyses before approving the emergency preparedness exemption requests. However, as concluded by the backfit review paael, requiring licensees to perform and the NRC to review such analyses is burdensome and time consuming for both licensees and the NRC. The risk-informed rulemaking effort that I have

. initiated is intended to resuit in new decommissioning regulations that will better define the extent to which plant-specific heatup analyses will be required.

Another technical issue raised by the staff is the expected consequences of rapid zircaloy oxidation (zircaloy fire) if it should occur. Information in NUREG-1353, "Beyond Design Basis Accidents in Spent Fuel Pools," appears to conflict with Information in NUREG/CR-6451, "A Safety and Regulatory Assessment of Generic BWR and PWR Permanently Shutdown Nuclear Power Plants." The staff's technical review will also examine the consequences of rapid zircatoy oxidation and this will be used to develop the new risk-informed regulations for permanently shutdown plants.

Conclusion 1 reviewed the staff's February 10,1999, analysis of the backfit review panel's findings and have concluded that when the staff reviewed the exemption request, the available guidance appropriately led the staff to conclude that a site-specific analysis considering the zircaloy fire scenario was needed before the exemption could be granted. Although the existing information regarding the possible consequences of a zircaloy fire is conflicting in certain areas, the studies that I have initiated will clarify these uncertainties and will lead to new risk-informed decommissioning regulations.

Docket No. 50-309 Attachments: As stated (2) -

DISTRIBUTION: See next page

• SEE PREVIOUS CONCURRENCES DOCUMENT NAME: G:\SECY\DUDLEY\BFRESOL.WPD Te voceive e esey ef thle doewsnent, indsete In the bes: *C* = Copy without enclosures *E' = Copy with er'elosures *N' = No copy OFFICE - PDIV-D/PM l TECliED% PDIV/LA l' PDIV-D/SC* l PDIV&D/D' lE DLPM/D* l NAME RDudley Rnnders } CJamerson - MMasnik SRichards JZwolinski DATE 05/ / 05/199' 05/23/99 04/26/99 04/26/99 m 4Ia; h m-munamunimmaussuun imii!- EEEi

- OFFICE AC 4R _

EDO

_NAME BE perlin MCAlliffi 'Mlia -

DATE 0 54 399 05/699 h5849 CfFICIAL RECORD COP,Y 6Y

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l DOCUMENT NAME: G;\SECY\DUDLEY\BFRESOL.WPD '

l DATE: .- j.

DISTRIBUTION:

HARD COPY Docket File (50-309)

PUBLIC WTravers (016-E15)

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ATTAQiMENT 1 ue p UNITED STATES 3

fj NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20666 0001

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• s e,+ ' October 28, 1998 :;J- "*'. -

MEMORANDUM TO: Samuel J. Collins, Director Office of Nuclear Reactor Regulation FROM: Backfit Review Panel:

John A. Zwolinski, Acting Director -

Division of Reactor Projects 1/11 Office of Nuclear Reactor Regulation d

Gus C. Lainas, Acting Director .

Division of Engineering . ff Office of Nuclear Reactor Regulation Frank J. Congel, Director _

incident Response Division Office of Analysis and Evaluation of Operational Data

SUBJECT:

RESULTS OF BACKFIT REVIEW PANEL REGARDING EMERGENCY PREPAREDNESS REQUIREMENTS FOR MAINE YANKEE On June 9,1998, the Backfit Review Panel (Panel) was appointed to determine if the criteria being used by the staff in evaluating a Maine Yankee request for relief from offsite emergency preparedness requirements of 10 CFR 50.54(q) constitute a backfit. The results of the Paners efforts are attached. The Office of the General Counsel has reviewed the Paners report and has no legal objection to the Paners findings.

The Panel reviewed numerous documents with varying degrees of relevancy to this matter.

Also, on July 9,1998, the Panel met with key Office of Nuclear Reactor Regulation (NRR) staff involved in the processing of the emergency preparedness exemption request. On July 10, 1998, the Panei met with the licensee to discuss its backfit appeal in a meeting open for public l observation. The meeting was transcribed. The Panel has followed the guidance contained in NRR Office Letter No. 901," Procedures for Managing Plant-Specific Backfits and 10 CFR l 50.54(f) Information Requests." The licensee argues that the critorion being imposed for review of its emergency preparedness exemption request is a backfit as the accident being postulated is considered to be outside the Maine Yankee licensing basis and, in addition, is a beyond-design-basis event. The licensee has also brought into question other issues such as i backfit protection when seeking to amend its license.

The Panel has determined that the staff has not imposed a backfit on the licensee. However, the Panel has concluded that the criterion being used by the staff appears to be overly l conservative, seeking to achieve a safety finding that is much more conservative than a j traditional risk-informed reasonableness threshold. The, basis for this conclusion is contained in l

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S. J. Collins - '

i the attached report. Other issues, which arose during the Panel's liberations, are identified.

These include the applicability of 10 CFR 50.109 to plants in a decommissioning mode and protection provided alllicensees when exemption / amendment requests are made of the staff.

The attachment has been developed such that it is in a format to transmit to the licensee in response to its letter of May 6,1998. ,

The Panelis available to meet with you shouki questions exist. -

Attachment:

Maine Yankee Backfit Review Panel Results a

a MAINE YANKEE BACKFIT APPEAL PANEL RESULTS TABLE OF CONTENTS L BACKGROUND

11. BACKFIT APPEAL llL THE LICENSEE'S ASSERTIONS AND THE PANEL'S CONCLUSIONS Assertion 1 Assertion 2 i Assertion 3 i Assertion 4 e f

Assertion S

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SUMMARY

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s BACKFIT REVIEW PANEL RESULTS ON THE APPROPRIATE USE OF A POSTULATED ZlRCONIUM[ FUEL CLADDING FIRE IN A SPENT FUEL POOL AS THE CRITERION TO FORM THE BASIS TO GRANT EMERGENCY PLANNING EXEMPTIONS s

!. BACKGROUND On November 6,1997, Maine Yankee Atomic Power Company (the licensee) submitted an exemption request to allow Maine Yankee to discontinue certain aspects of offsite Emergency Planning (EP). At a meeting with the licensee on November 25,1997, the staff informed the licensee that a finding would have to be made that Maine Yankee was no longer vulnerable to an event that could exceed the Environmental Protection Agency's (EPA's) Protective Action Guides (PAGs) and that spent fuel pool heat up analysis would be part of the review.

On February 17,1998, the licensee transmitted a letter to the staff claiming the staff was using acceptance criteria and taking positions more stringent than those previously accepted in the Maine Yankee licensing basis, thus, claiming a backfit existed. The staff responded to the licensee in a letter dated April 21,1998, from Jack Roe, the Acting Director, Division of Reactor Program Management, to Mr. Meisner, President, Maine Yankee Atomic Power Company, denying the licensee's claim of backfit. The staff concluded that the "Backfit Rule was intended to assure that once the Nuclear Regulatory Commission (NRC) issued a license, the terms and conditions for operating under the licens,e and regulations at the time of initiallicensing are not arbitrarily changed post hoc by the Commission." Further, that when a licensee seeks an exemption, the licensee "is requesting authority to do what is not currently permitted under its license" and the licensee "has no valid expectations protected by the backfit rule regarding the terms end conditions for obtaining the new authority which is not pe:mitted under the regulations." Additionally, the letter stated that "to grant the exemption is discretionary...and would not be considered backfitting so long as: (l) there is a rational basis for the new requirements and (ii) there is reasonable nexus between the new requirements and the subject matter of the exemption"-that is, that staff has a fully rational basis for seeking new information to make a finding that an appropriate basis exists to grant the exemption. The staff believed that the analysis it requested from Maine Yankee was necessary to provide assurance that the radiation doses would not exceed the alert emergency classification, thus, obviating the need for offsite emergency response capability.

On May 6,1998, Maine Yankee sent a letter to the Executive Director of Operations appealing the staff's findings contained in the April 21,1998, letter. Subsequently, that matter was refenred to the Office of Nuclear Reactor Regulation (NRR).

On June 9,1998, senior NRC managers were appointed to a Backfit Review Panel (Panel) to evaluate the criteria being used by the staff to render a finding in support of a Maine Yankee proposed exemption regarding EP. On July 9,1998, the Panel met with key NRR staff ,

involved in the processing of the exemption request. On July 10,1998, the Panel met with Maine Yankee to discuss its backfit appealin a meeting open for public observation. Three members of the public provided additional com nents. The meeting was transcribed. The Panel has followed the guidance contained in NRR 04;ce Letter No. 901, " Procedures for Managing Plant-Specific Backfits and 10 CFR 50.54(f)Information Requests." The primary issue of concem is the

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criterion being applied by the staff in order to make a safety finding $nd, t'hus, develop a basis to grant an exemption to 10 CFR 50.47. The licensee argues that the criterion being imposed is a backfit as the accident being postulated is considered outside the Maine Yankee licensing basis and, in addition, is a beyond-design-basis event. The licensee has also brought into question another issue regarding backfA protection when seeking to amend its license and other concems.

!!. BACKFIT APPEAL in its May 6,1998, letter and in the subsequent interactions with the staff, the licensee appealed the staffs decision based largely on the following assertions: ,,

1. The backfit rule should apply to decommissioning plants.

2. The backfit rule should not distinguish between licensee-initiated requests and NRC-initiated actions. .

3. It is a violation of the backfit rule to review an exemption request against accident sequences and associated assumptions beyond those considered in the existing licensing basis.

4. A NUREG cannot be used as the basis to impose new or additional requirements on licensees.

5. The licensee further characterized another regulatory burden imposed by the staff to be a backfit; viz., the licensee was required not only to perform an acceptable analysis, but viso to provide the NRC with information, su'pport, and assistance, as necessary, to allow the fSRC to perform its own analysis verifying the licensee's fulfillment of the new criterion.

The Panel reviewed the licensee's request, the arguments presented in the materials provided, information obtained in the meetings conducted with the staff, and the history of the staffs disposition of similarrequests.

lit. THE LICENSEE'S ASSERTIONS AND THE PANEL'S CONCLUSIONS The licensee's backfit claim and subsequent appeal grew from its perception of the bases that the staff proposed to use to grant the exemption. Therefore, before discussing Maine Yankee's assertions, it is appropriate to discuss exemptions. Pursuant to 10 CFR 50.12(a), the Commission may, upon application by any interested person or upon its own initiative, grant l

exemptions from the requirements of the regulations that are (1) authorized by law, will not l present an undue risk to public health and safety and are consistent with the common defense and security, and (2) present special circumstrN. The underiying purpose of Section 50.54(q) from which Maine Yankee sought exemption is ! usure that licensees follow and maintain in {

I effect emergency plans that provide reasonable wssurance that adequate protective measures  ;

can and will be taken in the event of an emergency at a nuclear reactor. The regulations are intended to provide protection from generally credible beyond design-basis accidents. To grant

' an exemption from offsite EP requirements, the NRC must find that the proposed exemption does not compromise public health and safety in the event of these beyond-design-basis

. accidents.

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• Assertion 1: The backfit rule as it applies to decommissioning pla$4s.

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The licensee argued thatthe explict terms of the backfit rule apply to plants undergoing decommissioning because these plants are required to adhere to the provisions of 10 CFR Part 50. The licensee further stated that decommissioning plants need and are entitled to the

- same predictability, statsty, and protection from arbitrary actions as operating plants.

The Panel reviewed the history of similar requests and the staffs granting of EP exemptions to ,

Rancho Seco, Yankee Rowe, and Trojan.

Rancho Seco .

The EP was revised to reflect the shutdown and defueled status of the reactor. The licensee's submittalincluded several attachments to justify the proposed changes to the EP and a request for an exemption to cease offsite emergency response and preparedness activities.

The staff reviewed the EP based on the standards of 10 CFR 50.47(d), which state the requirements for a license authorizing only fuelloading and low-power testing. The standards of 10 CFR 50.47(d) recognize the lower risk associated with low-power operation and were considered by the staff to be generally appropriate for reviewing the offsite aspects of the defueled EP. The staff determined that tha radioactive source terms for an accidental release

. were greatly reduced by radioactive decay with time.

Base'don a review of the Sacramento Municipal Utility District's analysis of possible events at Rancho Seco, the staff concurred with the licensee's analysis and concluded that there is no credible accident for Rancho Seco in the defueled condition that could result in the release of radioactive materials to the environment in quantities that would require prompt protective actions for the public.

1 Yankee Rowe The staff used the same acceptance criteria for the review as was used to evaluate the adequacy of onsite emergency plans for operating nuclear power reactors, taking into .

l consideration th's current shutdown status and inherent low risk of Yankee Rowe. The  ;

radioactive source terms for an accidental release had been greatly reduced by radioactive decay. The staff independently evaluated the offsite radiological consequences of the maximum

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credible accident in a defueled state.

Based on the staffs review of the Yankee Rowe analysis, the staff concurred with the licensee's accident analysis and concluded that there is no credible accident in the defueled condition that o l could result in the release of radioactive materials to the environment in quantitles that would l require prompt protective actions for the public.

Trojan

' The staff determined that the most significant potential accident associated with a permanently defueled and shutdown reactor involves the spent fuel stored on site. The postulated accident sequence involved the complete or partial loss of water from a spent fuel pool containing recently off loaded fuel. This beyond-design-basis accident sequence could result in a zirconium fuel cladding fire that could propagate through the spent fuel storage pool and result in significant

offsite consequences. Although such an accident is beyond the design bkses, it was considered within the spectrum of accidents that might be reasonably credible and that could require continuance of the offsite EP. It is also within the spectrum of beyond-design-basis accidents considered in NUREG 43g6," Planning Basis for the Development of State and Local Govemment Radiological Emergency Response Plans in Support of Light Water Nuclear Power Plants," that formed the basis for NRC's emergency planning regulations from which the licensee sought exemption. A description of the accident sequence and estimates ofimpact are contained in NUREG-1353, " Regulatory Analysis for the Resolution of Generic issue 82, 'Beyond

- Design Basis Accident in Spent Fuel Pools." Consideration of this accident scenario was limited to the period of time that the spent fuel was thermodynamically capable of a cladding fire. This time period of concem had been estimated by the staff to be about 1 to 3 years following final shutdown depending on fuel bum-up and the spent fuel storage configuration.

The licensee subsequently justified to the staffs satisfaction that its spent fuel pool was designed to seismic criteria that essentially precluded a credible event that would lead to the loss of coolant inventory, thus, making the review criterion of a zirconium cladding fire moot.

Panel Conclusions on Assertion 1 The Panel finds that the Commission did not appear to explicitly consider the applicability of the backfit rule to decommissioning reactors. The staff is preparing a Commission paper that will l address the applicability of the backfit rule to decommissioning plants. The Panel believes action l on this Commission Paper should afford plants the same predictability, stability, and protection as operating reactors. Thus, the Panel has chosen to defer a conclusion on this matter on a generic basis. For the purposes of this appeal, the Panel simply assumed that the backfit rule applies to this specific licensee request. . -

Assertion 2: The backfit rule should not distinguish between licensee !nitiated reque.sts and NRC1nitiated actions.

The licensee stated that the backfit rule and its Statement of Considerations do not make the distinction in applicability based on the source of the proposed action. The licensee indicated that the backfit rule, by definition, relates to the imposition of new or additional requirements by the NRC. The licensee asserted that the NRC's position with respect to the Maine Yankee issue creates a distinction that does not exit,t in the backfit rule.

The Panel reviewed the rapplicable regulations and the staffs approach to evaluating the exemption request.

Panel Conclusion on Assertion 2 1

The Panel agrees with the lic_ensee that the application of the backfit rule should not depend on l whether the change comes from an NRC initiative or a licensee application.  !

Assertion 3: It is a violation of the backfit rule to review an exemption request against I accident sequences and associated assumptions beyond those considered {

in the existing licensing basis, in order to evaluate this assertion, the Panel reviewed several relevant documents. These included NUREG-1353, the staffs efforts in granting EP ex'emptions for Rancho Seco, Yankee j i

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Rowe, and Trojan (described above), and the agency's bases for imposing' offsite EP regulations

- (including NUREG-0396 and NUREG-0654). Also, the Panel reviewed SECY 93-127 (regarding Price-Anderson Exemptions) and its associated Staff Requirements Memorandum, and the ongoing staff efforts related to the proposed draft rulemaking on EP (SECY 97-120). The Panel's findings and analysis are summarized as follows.

1. Basis for Offsite EP Requirements NUREG-0396, " Planning Basis for the Development of State and Local Govemment Radiological Emergency Response Plans in Support of Light Water Nuclear Power Plants," and NUREG-0654, " Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants," discuss radiological emergency preparedness and the basis for planning response actions in the event of nuclear power plant accidents. These documents include consideration of generic beyond-design-basis accidents.

The underlying purpose of the offsite requirements is to ensure licensees follow and maintain in effect emergency plans that provide reasonable assurance that adequate protective measures can and will be taken in the event of an emergency at a nuclear reactor. To grant an exemption from the regulations, the staff need only conclude that reasonably credible beyond-design-basis accidents will not require offsite response capabilities.

2. NUREG-1353," Regulatory Analysis for the Resolution of Generic issue 82, 'Beyond Design Basis Accidents in Spent Fuel Pools" The risk of beyond design-basis accidents in spent fuel storage pools was examined in WASH-1400. It was concluded that these risks were orders of magnitude below those involving the reactor core because of the simplicity of the spent fuel storage pool design; in particular, (1) the coolant is at atmospheric pressure, (2) the spent fuel is always suberitical and the heat source is low, (3) there is no piping that can drain the pool, and (4) there are no anticipated operational transients that could interrupt cooling or cause criticality.

The methods used to provide cooling for the removal of decay heat from the stored assemblies vary from plant to plant. The safety function to be performed remains the same; the spent fuel assemblies must be cooled and must remain covered with water during all storage conditions.

Assuming that the water is drained or boiled off, the fuel rods will heat up until the buoyancy-driven air flow is sufficient to prevent further heat up. If the decay heat levelis high enough to heat the fuel rod cladding to about 900 *C (1650 'F), the oxidation becomes self-sustaining, resulting in a zirconium cladding fire. Propagation of the zirconium cladding fire to older adjacent assemblies is likely if the decay heat levelin an older adjacent assembly is high enough to heat that assembly to within 100 to 200 'C (200 to 400 'F) of the self-sustaining oxidation temperature. Although propagation of a zirconium cladding fire to 1- to 2-year old fuel by only thermal radiation can occur, the older fuel would have to be next to the hottest assemblies.

The risk from the storage of spent fuel in the spent fuel storage pool at light-water reactors is dominated by the beyond design-basis earthquake accident scenario. The seismic capacities, or fragility, of two older spent fuel pools indicate that the high confidence of low probability of failure (HCLPF)is about three times the safe-shutdown earthquake (SSE) design level. The HCLPF values are estimated to be in the 0.5 to 0.65 g range. The median peak ground acceleration needed to fail these pools is estimated to be in the 1.4 to 2.0 g range, nearly a factor of ten higher than the SSE design value. A report prepared by the American Society of Civil Engineers

c. .

I also concluded that, in general, the seismic design of nuclear facilit[ structures result in median factors of safety on the order of 4 to 19 based on post-1973 design criteria.

The structural capacity of the elevated boiling-water reactor (BWR) pool is lower than that for the pressurized-water reactor (PWR) pool located at ground level; however, the lower conditional probability of a zirconium cladding fire for the BWR fuel assembly design offsets the higher seismic failure frequency. The probability of a zirconium cladding fire, resulting from the loss of water from the spent fuel pool, is estimated to have a mean value of 2 x 10-e per reactoryear for either the PWR or the BWR spent fuel pool. The seismic event contributes over 90 percent of the PWR spent fuel damage probability, and nearly 95 percent for the BWR.

The source term 'for the spent fuel pool accident is not the same as the source term associated with core damage accidents. The consequences of a spent fuel pool accident, which results in the complete loss of water, are dominated by the long lived isotopes such as cesium and strontium. The health consequences are dominated by the risk of latent cancer fatalities due to long-term exposures.

The risk and consequences of a spent fuel pool accident appear to meet the Safety Goal Policy Statement objectives. The study concluded that most of the spent fuel pool risk is derived from beyond-design-basis earthquakes, and that this risk is no greater than the risk from core damage accidents due to seismic events beyond the SSE. Therefore, reducing the risk from spent fuel pools due to events beyond the SSE would stillleave at least a comparable risk due to core damage accidents. Because of the large inherent safety margins in the design and constructior) of the spent fuel pools, no action was deemed justified. Key facts from NUREG-1353:

For a zirconium clad fire to occur, the fuel must be recently discharged (between 3) and 180 days in a cylindrical BWR configuration, and between 30 and 250 days in a cylindrical PWR configuration).

. For a less severe accident in which the fuelis exposed to air, but does not reach {

temperatures high enough to ignite the zirconium cladding, fuel pin failure could occur, resulting in a release of the noble gases and halogens.

For spent fuel accidents, there are no "eady fatalities" and the risk of early injury is negligible. I For a severe core damage accident, early fatalities and eady injury are part of the risk due to the presence of short lived isotopes. For the long lived isotopes (predominately cesium), the ,

exposure is due mainly to exposure after the area is decontaminated and people retum to '

their homes.

Most of the spent fuel pool risk is derived from beyond design-basis seismic events. For j operating plants, the spent fuel pool risk is no greater than the risk from core damage accidents due to seismic events beyond the SSE. Potential improvements to the spent fuel pool cooling and make-up systems were alsa examined. The potential risk to the general public is estimated to be very small, on the order of three to four person-rem, given a loss of cooling event, which results in failure of the spent fuel cladding, but not a cladding fire. Reducing the spent fuel pool l risk would not affect the overall risk of an operating plant to any significant degree.

The Panel believes that in the circumstances of this case, a zirconium cladding fire resulting from a drain down of the spent fuel pool is so unlikely, especially after significant decay time, that it need not be considered in acting on Maine Yankee's exemption request.

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3. Price-Anderson Exemptiory

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~ The staff stated the following in SECY 93-127, " Financial Protection Required of Licensees of 1.arge Nuclear Power Plants During Decommissioning:" "...the most significant accident l sequence for a permanentiy defueled and shutdown reactor involves the complete loss of water from a light water reactor spent fuel pool. This beyond design basis accident could result in a zirconium fuel cladding fire that could propagate through the spent fuel storage pool and result in significant off site consequences....Although such an accident is beyond the design bases, it may be considered ' reasonably credible' and could warrant requiring substantial financial protection.

Such an accident is possible during the first year after reactor shutdown for a low density spent fuel storage configuration and during the first 2 to 3 years after shutdown for spent fuel stored in certain high density configurations."

The Commission's response to SECY 93-127 required the staff to issue Price-Anderson exemptions for permanently shutdown plants after a case-by case review.

The Panel notes that the criteria used by the staff for granting relief from Price-Anderson may be different than the criteria used in granting exemptions to EP. The protection afforded by offsite EP may be relaxed well before the financial protection associated with Price-Anderson.

4. EP Draft Rulemaking The staff has undertaken rulemaking that will simplify the review and approval process for EP regulations. On July 10,1997, the Commission approved Option 2 of SECY 97-120,

Rulemaking Plan for Emergency Planning Requirements for Permanently Shutdown Nuclear Power Plant Sites 10 CFR Part 50.54(q) and (t),10 CFR 50.47, and Appendix to 10 CFR Part 50." The proposed rulemaking would allow power reactor licensees to obtain relief from EP requirements during permanent shutdown. Under specified conditions and subject to NRC approval, licensees would be allowed to modify their EP requirements if they met the following conditicns: (1) the reat'.srs onsite are defueled and permanently shutdown; (2) spent fuel in the spent fuel pools is no longer susceptible to a zirconium cladding fire or gap release caused by an

~ incipient fuel cladding failure in the event the spent fuel pool is drained accidentally; and (3) a site-specific analysis of the onsite inventory of radioactive material has determined that in the event of a release, no member of the public would be exposed to doses in excess of the EPA PAGs. After spent fuel has cooled down to a point where the spent fuel cladding temperature would not exceed 565 *C following an accidental draining of the spent fuel, licensees would be allowed to modify their EP requirements. The cladding temperature limit of 565 *C would be reached after a decay period of 17 months for PWRs and 7 months for BWRs (according to NUREG/CR-6451,"A Safety and Regulatory Assessment of Generic BWR and PWR Permanently Shutdown Nuclear Power Plants," prepared by Brookhaven National Laboratory).

The Panel notes the efforts of the staff appear to support a time-sensitive criteria in lieu of a ,

comprehensive case by-ease technical evaluation. This approach will significantly reduce staff and licensee time and effort and result in a fully predictable process. ]:

Panel Conclusion on Assertion 3 ,

The staff first used the spent fuel pool fire as a limiting safety concem during the review of the Trojan EP exemption request. Subsequent to the Trojan review, spent fuel pool fires were used  ;

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8-by the staffin proposals to the Commission for Price-Anderson exehptiks and in generic rulemaking for processing EP' exemptions for decommissioning plants. 1 The Panel finds, in addition to the history associated with the use of the subject criteria, that no backfit occurred when this criterion was used by the staff in evaluating Maine Yankee's exemption request. Indeed, Maine Yankee recognized the need for this analysis and included such an analysis in its January 20,1998, submittal. However, the Panel believes that the staff sought to develop an absolute safety finding rather than a risk-informed reasonable assurance finding. s

. 1 While the use of the zirconium clad fire is a conservative criterion for evaluating EP exemption requests for decommissioning plants, it remains unclear that this is the appropriate criterion in all circumstances. Maine Yankee argued that sufficient technical bases exist to grant the EP I exemption shortly after off loading all fuel to the spent fuel pool. A reasonableness test along with a risk-informed perspective and a realistic consideration of the likelihood that the spent fuel pool could be drained in the first place appears to justify this view. NUREG-1353 provides a quantitative analysis of the potential radiologicalimpact of radioactivity released to the environs from a buming spent fuel versus the number of days fuel has been stored. The impact of radioactivity releases decreases from about 2,600,000 to 4 person-rem (whole body dose) over a 1-year period. Thus, a simplistic and quantifiable figure of merit already exists, which is clear and easily understood. Additional complex analyses of heat-up rates and extensive reviews of computer codes as the staff initially requested in this case are not required.

in additiori, the NUREG-1353 analysis did not assume a prompt, planned evacuation. It did assume that after 1 day of radioactivity releases associated with the spent fuel fire, people would be relocated. The analysis also indicated that no substantial acute individual doses would occur.

There is not a clear nexus that relates the need for the comprehensive EP with the characteristics of a spent fuel pool fire. The Panel concludes that the staff had ample opportunity to establish reasonable assurance that the public health and safety was protected without going into such technical depth. i Assertion 4: A NUREG cannot be used as the basis to impose new or additional requirements for licensees. l Panel Conclusion on Assertion 4 ft is well known by the staff eat NUREGs do not themselves impose requirements on licensees. There are intemal NRC procedures that must be followed before any requirements  !

can be imposed. Technicalinsights and analyses contained in NUREGs can be used by the '

staff to support evaluations that are part of the staff's routine functions and could form the foundation for the imposition of a requirement through other appropriate means.

In this case, the Panel notes that NUREG-1353 was used by the staff to identify accidents that could have offslie radiologicalimpact justifying the continuation of offsite emergency preparedness while undergoing decommissioning. The Panel agrees that the staff appropriately used some of the analyses in NUREG-1353; viz., in identifying potentially significant safety concems while undergoing decommissioning. However, as previously discussed, the staff could have relied on NUREG-1353 and concluded that EP is no longer required at a finite period of time after the reactor was completely defueled and, thus, had sufficient information to make the findings required to grant an exemption.

.s Assertion 5: The licensee fprther characterized another regulathry burden imposed by the staff to be a backfit: viz., the licensee was required not only to perform an acceptable analysis but also to provide the NRC with information, support, and ass,istance, as necessary, to allow the NRC to perform its own analysis verifying the licensee's fulfillment of the criterion.

Panel Conclusion on Assertion 5 .

The staff can always seek information needed to evaluate licensee requesp with the condition that the information requested must have a reasonable nexus to the findings that the NPC must make to act on the licensee's request. Management must ensure that information requests meet this standard. This conclusion was confirmed by the Office of the General Counsel.

In processing exemption requests, the underlying regulation,10 CFR 50.12, states, among other things that "[a]pplication of the regulation in the particular circumstances would not serve the underlying purpose of the rule oris not necessary to achieve the underlying purpose of the i rule." The staff, therefore, must make a fundamental finding that circumstances have changed sufficiently to warrant consideration of the exemption and a technical argument exists which provides sufficient justification to support the proposed exemption.

To reach a determination that sufficient basis exists to meet the requirement of 10 CFR 50.12, the staff may need to seek information necessary to make a safety finding. In cases involving offsite EP requirements, the requirement of ensuring adequate public health and safety may result in evaluations that go beyond the design basis because the offsite EP requirements are based on beyond design basis accidents. Design basis events are typically postulated in performing plant reviews with the distinction that these events do not yield releases to the environs which exceed Part 100 limits.

Therefore, the staff"s use of a postulated zirconium clad fire is appropriate to ensure that even under the most challenging potential" worst-case scenarios," the public health and safety rernain protected as long as the zirconium clad fire remains as a reasonably credible event.

t IV.

SUMMARY

The Panel finds that the staff acted prudently and appropriately in applying criteria deemed necessary to make a safety finding to dev?'@ rationale and basis to support an exemption to 10 CFR 50.47. Based on the preceding ciscussion, the Panel finds no inconsistency with the application of 10 CFR 50.109 to the extent that a zirconium clad fire was reasonably credible.

The Panel believes that the concems and questions raised by the staffin response to the request made by the licensee were appropriate. The Panel believes the criteria are defensible, l

albeit overly conservative. Management oversight, accountability and related NRC i expectations should be focused to ensure staff questions and positions are germane to the  !

topic. The scope and depth of technical reviews are management issues and management .

must ensure that absolutes are not the goal of the technical reviews but risk-informed i

reasonableness tests are maintained.

However, the most compelling observation was the lack of staff sensitivity to elapsed time and schedules confronting decommissioning nuclear power plants. Time sensitive review criteria will focus the staff on issues of higher safety concem and allow the NRC to be a predictable

. -10 l

l regulator, if done effectively, the NRC will be consistent and predicthbidin the

! decommissioning area. In this case, the staff should have consider ~ed whether the zirconium l

clad fire was reasonably credible in view of either the seismic design of the spent fuel pool (as it I did in Trojan) or the time elapsed since the reactor was permanently shut down.

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o; . ATTA0tfENT 2

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It UNITED STATES

1. E NUCLEAR REGULATORY COMMISSION f WASHINGTON, D.C. 20555 0001

\*.***,o# February 10, 1999 ;i MEMORANDUM TO: Samuel J. Collins, Director Office of Nuclear Reactor Regulation FROM: $ Oavid B. Matthews, Dirbfb . '

Division of Reactor Program Managemen(,,

Office of Nuclear Reactor Regulation

SUBJECT:

NRR STAFF RESPONSE TO BACKFIT IkEVIEW PANEL FINDINGS I

On October 28,1998, the backfit review panel (the Panel) appointed to review a Maine Yankee backfit appealissued its report. The report concluded that the NRC did not impose a backfit on the Maine Yankee licensee. However, the Panel's report discussed several additionalissues regarding the process and criteria being used by the NRC staff in its evaluation of emergency planning (EP) exemption requests submitted by licensees of permanently shutdown reactors.

The Panel's findings formed the basis for'the Director's Decision you issued to Maine Yankee on November 6,1998, regarding their backfit appeal. Subsequent to issuance of the Director's Decision, you requested the NRR staff to assess the findings of the backfit review panel. The staff reviewed the Panel's conclusions and identified the following three areas for comment:

(1) the level of detail of the review conducted by the staff, (2) the timeliness of the review, and (3) the applicability of certain technical conclusions relied upon by the Panel. The staff also noted that the panel agreed with Maine Yankee's claim that the application of the backfit rule should not depend on whether a change comes from an NRC initiative or a licensee application.

This position contradicts OGC's current view on this issue.

1. Level of detail of review conducted by the staff 1

The Panel concluded that "the staff sought to develop an absolute safety firJing rather than a risk-informed reasonable assurance finding"in granting an exemption from certain requirements of offsite EP to Maine Yankee in addition, based on the amount of time that Maine Yankee had been shut down, the panel stated that " complex analyses of heat-up rates and extensive reviews of computer codes as the staff initially requested in this case are not required" and concluded that "the staff had ample opportunity to establish reasonable assurance that public health and safety was protected without going into such technical depth."

The staff's practices regarding EP exemptions at permanently shutdown reactors evolved from

. SECY 93-127, Financial Protection Required of Licensees of Large Nuclear Power Plants During Decommissioning," dated May 10,1993, and its associated Staff Requirements Memorandum (SRM), issued on July 13,1993. In the SRM, the Commission directed the staff to " allow, after a requisite minimum spent fuel pool cooling period has elapsed, a reduction in the amount of financial protection required" at permanently shutdown facilities. In addition, the CONTACT: Michael K. Webb, DRPM/NRR 415-1347 E

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S. Collins Commission directed the staff to proceed with rulemaking "to determinejnore precisely the appropriate spent fuel cooling period after plant shut down" beyond which offsite liability insurance coverage could be reduosd. In SECY 93-127, the staff identified that the zirconium fuel cladding fire was possible for *the first two to three years after shut down for spent fuel t

s'ored in certain high density configurations." Although this accident scenario is a beyond-design-basis event, in SECY 93-12~, it was determined to be the most "significant accident sequence" for a permanently shutdown reactor and was found to be " reasonably conceivable"

, for the purposes of evaluating the need for offsite liability insurance. The need for offsite emergency preparedness is based on a spectrum of severe accidents which is not limited to design basis events. The mean probability of the spent fuel pool draindown scenario is 2 x 104 per reactor year and its consequences, if a zirconium fire results, would be extensive. Thus, since the issuance of the SECY 93-127 SRM, the staff's review of decommissioning EP exemptions for permanently shutdown reactors has considered the complete loss of spent fuel pool water and subsequent heatup of the fuel as one of the accidents that must be evaluated to show that the facility does not pose any undue risk to the public. Licensees have performed calculations to determine the plant specific spent fuel pool cooling periods necessary to preclude a zirconium cladding fire. The staff reviewed these submittals to confirm that a zirconium fire was not possible before approving the exemption requests.

The Commission, in the SRM on SECY 93-127, directehI the staff to proceed with rulemaking to determine the appropriate spent fuel cooling period after shutdown to preclude a zirconium fire.

The'staffinitiated a rulemaking effort with the Office of Nuclear Regulatory Research that included technical support from Brookhaven National Laboratory (BNL). BNL was tasked to identify existing codes that could perform these calculations or to develop a code that the staff and licensees could use to determine appropriate plant-sp~ecific spent fuel cooling periods. BNL concluded that existing codes were not sufficient and that a new code must be developed for this specific use. The staff planned to use the new code to perform sensitivity analyses to establish " generic" spent fuel coormg periods for use in an emergency planning rulemaking which would eliminate the need for EP exemptions at permanently shutdown plants.

While code development was ongoing at BNL, the staff went ahead with rulemaking efforts and

. on June 16,1997, forwarded SECY 97-120, "Rulemaking Plan for Emergency Planning Requirements for Permanently Shutdown Nuclear Power Plant Site 10 CFR 50.54(q) and (t); ,

10 CFR 50.47; and Appendix E to 10 CFR Part 50" to the Commission for review. Option 2 of  !

the Rulemaking Plan proposed that the reduction in offsite EP would occur when "the spent fuel in the spent fuel pool is no longer susceptible to a zirconium cladding fire . . . in the event the spent fuel poolis drained." The Commission directed the staff to. proceed with this option in its SRM of July 10,1997. Thus, in approving the rulemaking plan, the Commission also endorsed

. the criteria that the staff had been using since July 1993 for EP exemptions.

In hugust 1997, in response to an allegation related to the Haddam Neck facility (NRR-97-A-

. 0048) regarding the safety of spent fuel storage after permanent reactor shutdown, the NRC staff replied to a member of the public stating that "the staff will require the licensee to submit analysis of the worst case radiological event and determine the level of emergency preparedness required at the site to handle this worst case scenario. The safety analyses will ensure that spent fuel pool water loss scenarios for shutdown power plants will be analyzed in establishing the worst case radiological event." This letter was shared by the alleger with other active members of the public in the vicinity of the Maine Yankee plant. Several of those ,

individuals then contacted the NRC and requested that the staff ensure the same level of 4

S. Collins protection for the Maine Yankee residents as was afforded to persons living near Haddam Neck. The discussion of this topicwith stakeholders in the public doinainiunderscored the need for the staff to maintain a reasonably consistent position on this issue in all exemptions and safety evaluations issued for emergency planning at shutdown plants.

Also, in ' August 1997$ the staff published contractor report NUREG/CR-6451, *A Safety and Regulatory Assessme,it of Generic BWR and PWR Permanently Shutdown Nuclear Power Plants," which provided an assessment of risk at permanently shutdown plants and recommendations for an appropriate level of regulatory requirements and potential reduction of those requirements over time following shutdown. This report was based on the new code developed by Brookhaven and was part of the effort to calculate' spent fuel cooling time periods beyond which the spent fuel wou'd lack sufficient decay heat to cause cladding oxidation. The Brookhaven analysis suggested that the critical decay time was 17 months for the

" representative" PWR and 7 mdhs for the " representative" BWR', but cautioned that the

" representative

• geometries analyzed did not necessarily include the most limiting configurations.

On November 6.1997, Maine Yankee submitted a request seeking exemption from certain offsite emergency preparedness requirements. In its request, Maine Yankee indicated that it had undertaken a plant specific analysis of the susceptibility of its spent fuel to an accidental radiological release i.n the event that the spent fuel pool is drained. On January 20,1998, Maine Yankee submitted a request seeking exemption from the insurance requirements of 10 CFR 50.54(w) (onsite liability) and 10 CFR 140.11 (offsite liability). The submittal stated an analysis of the Maine Yankee spent fuelindicated that after January 16,1998 (approximately 13 months after final reactor shutdown), natural circulation of air was sufficient to keep the cladding temperature below 565'C. This temperature (565'C ) represents the onset of early clad failure and was the point at which significant reductions in insurance coverage were to be j granted by the proposed rule on insurance requirements for permanently shutdown reactors approved by the Commission and pubTtshed in Federal Reaister on October 30,1997 (62FR58690). Staff review of the licensee's analysis identified non-conservative modeling ,

errors and inconsistencies that could significantly increase the actual cladding temperature. 1 The staff asked the licensee to address these issues in two requests for additional information (RAl). Maine Yankee never provided a response to the second RAI, issued on July 6,1998.

To this date, the accuracy of their heatup analysis remains an unresolved issue.

l On February 17,1998. Maine Yankee filed its backfit claim. On March 24,1998, the staff l briefed the NRR Office Director on the process it was using to evaluate tne three active EP i exemption requests (Haddam Neck, Maine Yankee, and Big Rock Point).

The staff continued to review the Maine Yankee EP exemption in accordance with the approved .  !

Option 2 of SECY 97-120; i.e., that the reduction in EP could occur when "the spent fuel in the spent fuel pools is no longer susceptible to a zirconium cladding fire . . . in the event the spent j fuel pool is drained." The review plan was consistent with criteria and objectives previously outlined to the Commission, NRR management, and the public. Since the licensee became

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unresponsive to staff questions intended to verify the accuracy of the Maine Yankee heatup analysis, NRR managers and staff met to develop an approach to complete the evaluation without licensee input. As part of the effort, the staff performed its own simplified heatup I

'The NRC staff has recently identified some modeling and code errors in the Brookhaven report. Preliminary assessment indicates that the critical decay times may increase significantly.

F' Y-S. Collins analysis of the Maine Yankee spent fuel poolin order to expedite th'e approvat process. Once the staff's own heatup analysis was completed, the staff moved quic.kly t& finalize the review and develop a rationale for accepting the exemption, which was issued on September 3,1998.

The exemption could not have been issued before the staff completed its analysis because i neither the NRC staff nor the licensee could provide a technical basis (either plant-specific or generic) to show that the zirconium fire scenario was not still a reasonably conceivable event.

Thus, the staff believes it used an app; oval process with the appropriate depth of review regarding this issue.

2. Timeliness of the staff review ,

d The Panel concluded that "the most compelling observation was the lack of staff sensitivity to elapsed time and schedules confronting decommissioning power plants."

The staff performed a review of all decommissioning licensing actions performed for plants that entered the decommissioning process during the last 5 years: Haddam Neck, Big Rock Point, Maine Yankee, and Zion Units 1 and 2. The staff determined that 31 of 36 completed or open licensing actions (86 percent) are less than 1 year old,36 of 36 totallicensing actions (100 percent) are less than 2 years old, and no licensing action is more than 2 years old.

These data compare with the Fiscal Year (FY) 1998 - 1999 NRR timeliness goals of 80 percent of actions less than or equal to 1 year old,95 percent of actions less than or equal to 2 years old, and alllicensing actions less than or equal to 3 years old. It is also important to note that 4 of the 5 actions that exceeded 1 year of age were for the Haddam Neck facility. The completion of these actions was delayed in order to address offsite release of radioactive materialissues that arose at Haddam Neck and caused the staff to respond by diverting substantial project management resources that otherwise would have been used to process licensing actions. In the specific case of Maine Yankee's EP exemption, the elapsed time from the date of their request to issuance of the exemption was slightly less than 10 months. To ease the burden for future licensees and reduce the amount of time required for a review, the staff is attempting to establish criteria during the current decommissioning rulemaking that would not require a licensee to submit an analysis to demonstrate that the zircaloy fire was no longer a reasonably credible event.

3. Aooficability of certain technical conclusions relied upon by the Panel A number of characterizations in the Panel's report did not reflect all of the information available to the staff regarding spent fuel pool heatup scenarios. Discussions of specific examples are provided below.

The panel's review relied upon the following information from NUREG-1353: "[f]or a zirconium clad fire to occur, the fuel must be recently discharged (between 30 and 180 days in a cylindrical BWR configuration, and between 30 and 250 days in a cylindrical PWR configuration)." However, this conclusion is applicable only to cylindrical (Iow-density) PWR spent fuel storage configurations. Most facilities, including Maine' Yankee, utilize high density storage racks. The staff is unaware of any power reactor facilities that continue to store all their fuelin a cylindrical configuration. (Note that NUREG-1353 was published in 1989 before many plants completed re-racking their spent fuel pools.) For the Maine Yankee high density spent fuel pool configuration, Table 4.5.1 of NUREG 1353 lists the critical spent fuel cooling time to preclude a zirconium fire as 360 to 700 days (roughly 1 to 2 years). Thus, the data contained in

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S. Collins ' NUREG-1353 does not support a conclusion that a zirconium fire was not " reasonably credible 2 at Maine Yankee which had been shut down only 11 months at the . time the EP exemption

- request was submitted to the NRC. The staff's approval of the Maine Yankee exemption on September 3,1998, about 21 months after plant shutdown, could not have been granted by using available generic data; the plant-specific heat up analysis required by the staff was judged to be essential to provide reasonable assurance of public health and safety.

- The Panel stated a conclusion derived from NUREG-1353 that 1 year after shutdown, the population dose resulting from a spent fuel pool draindown scenario decreases from 2,600,000 person-rem to 4 person-rem. However, this statement compares a zirconium fire release

- 30 days after shutdown to a gap release of 50 percent of the fuel with ng fire at 1 year after shutdown. While the Panel's conclusion might be appropriate for the cylindrical PWR storage configuration after 1 year, it is not applicable to the high density racks at Maine Yankee as

. discussed in the previous paragraph. Because it is still possible to have a zirconium fire beyond 1 year after shutdown when spent fuel is stored in high density racks, actual dose consequences of such a draindown at Maine Yankee would be much higher that the 4 person-rem value cited by the Panel.

The Panel cited a conclusion from NUREG-1353 that "for spent fuel pool accidents, there are no 'early fatalities' and the risk of early injury is negligible." The Panelis correct that NUREG 1353 makes this statement. However, there is no reference data in NUREG-1353 that supports the assertion. Another analysis was completed in 1997 by Brookhaven National Laboratory and documented in NUREG/CR-6451. When BNL analyzed the consequences of a spent fuel pool fire, it found that early injury could occur and calculated prompt fatalities ranging from 0.2 to 101 deaths within a 500-mile radius (NUREG/CR-6451; Tables 4.1 and 4.2). For perspective, BNL then compared these consequences with previously published consequences of core melt accidents. For a major core melt accident with prompt evacuation,88 prompt fatalities were calculated within a 500-mile radius (NUREG/CR-6451; Table 4.3). Thus, the consequences of a spent fuel pool fire could be significant.

While the Panel's report did not specifically address what offsite dose criteria should be used for determining whether a reasonably conceivable event has consequences that require offsite emergency planning, the Panel's discussion of early fatalities and risk of early injury might imply that emergency planning is not needed unless early injury is expected. In reviewing the Maine Yankee exemption, the staff used the EPA Protective Action Guidelines (1 rem whole body,  !

' 5 rem thyroid) as the threshold for determining the need for offsite EP. These EPA guidelines have been used since 1978 by the NRC when evaluating emergency plans to determine when i offsite protective actions are needed.

The Panel stated that the mean probability of a seismic event leading to a complete draindown (and assumed zirconium clad fire)is 2 x 104 per reactor year. Although accurate as the mean

- value, this single number does not account for the range of uncertainty in the probabilistic data.

l These uncertainties should be considered when using probabilistic data to make risk-informed judgements. In this case Table S.1 of NUREG/CR-4982 specifies the range of uncertainty >

which is from 2.6 x 10d to 1.6 x 10* for PWRs and 6.5 x 104 in 4 x 10 " for BWRs. These very targe uncertainties associated with the estimated frequency of seismic-induced spent fuel pool failure led the staff to conclude that the risk of a spent fuel pool fire was significant enough to ask the licensee to perform an analysis. ,

'In its report, the panel used the term " reasonably credible" event. For the purposes of this paper, the staff has interpreted " reasonably credible" to be synonymous with " reasonably

l S. Collins -

6-The Panel's report noted that the Trojan licensee justified that its pog! was designed to seismic criteria that essentially precluded a credible seismic event that would lead to a loss of water inventory. The report implies that the NRC staff should have concluded that the Maine Yankee spent fuel pool had similar margins. However, to demonstrate the robust seismic design of the Trojan spentfuel pool, its licensee submitted a seismic margins assessment that quantitatively demonstrated that it could withstand a seismic event eight times greater than the design basis seismic event: The NRC staff could not have made a similar finding on Maine Yankee without a seismic margins assessment of the pool. No such analyses were performed or submitted by Maine Yankee.

48

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S. Collins February 10, 1999 The Panel's report noted that the Trojan licensee justified that its po'ol wa,s designed to seismic

. criteria that essentially precluded a credible seismic event that would lead to a loss of water inventory. The report implies that the NRC staff should have concluded that the Maine Yankee spent fuel pool had similar margins. However, to demonstrate the robust seismic design of the Trojan spent fuel pool, its licensee submitted a seismic margins assessment that quantitatively demonstrated that it could withstani a seismic event eight times greater than the design bar:s seismic event. The NRC staff could not have made a similar finding on Maine Yankee without a seismic margins assessment.of the pool. No such analyses were performed or submitted by Maine Yankee.

I DISTRIBUTION:

Central File PDND r/f DMatthews GHolahan SWeiss TEssig CMiller TCollins TMarsh EHylton MMesn.k MWebb FAkstulewicz isane

• See previous concurrence ,

'I' b-DOCUMENT

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To grant an exemption from the regulations pursuant to 10 CFR 0.12, the NRC must make l

, certain basic findings that the exemption is authorized by law, will not present an undue risk to j the public health and safety and is consistent with the common defense and security, in considering exemption requests, the staff may find a need for additional information or analysis from the licensee to determine whether these basic findings can be made. A staff request for such additionalinformation or analysis is not covered by the backfit rule but the staff must have a reasonable basis to justify its request. See, for example,10 CFR 50.54(f) which makes it clear that the staff must have " reasons for each information request prior to issuance to ensure l that the burden to be imposed is justified in view of the potential safety significance of the issue to be addressed in the requested information." I believe that the staff's requests for information j were justified in this case. l The backfit review panel made a number of observations regarding the process used by the (

staff to review the exemption request for relief from offsite emergency preparedness )

requirements. Subsequently, at the direction of the Director of NRR, the staff responded to the issues raised in the backfit review panel report. The enclosures to this letter provide the details of activities associated with the backfit review panel.

This letter closes out the actions taken in response to the issues raised in your December 7, 1998, letter to the EDO. Please contact me if you desire to discuss these issues further.

Sincerely, i l

Orisical cicned by Frank J. "iru tin '

Frank J. Miraglia, Jr.,

Deputy Executive Director for Regulatory Programs

Enclosures:

as stated Docket No. 50-309 1

cc: See next page l Distribution: Docket Files 50-309 PUBLIC ACRS EDO R/F OGC DEDR R/F RBellamy, RI MTschlitz GTracy t J l

a:\Meisner.wpd ROPMS* C:ROPMS* OGC* DEDR MDTschiltz GMTracy LJChandler FJMiraglia j 6/3/99 6/4/99 6/18/99 6/a9199 l

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y. 2 I

l.o The backfit review panel made a number of observations regarding the process used by the staff to review the exemption request for relief from offsite emergency preparedness requirements. Subsequently, at the direction of the Director of NRR, the staff responded to the Issues raised in the backfit review panel report. The enclosures to this letter provide the details of activities associated with the backfit review panel.

This letter closes out the actions taken in response to the issues raised in your December 7, 1998, letter to the EDO. Please contact me if you desire to discuss these issues further.

Sincerely, Frank J. Miraglia, Jr.,

Deputy Executive Director for Regulatory Programs

Enclosures:

as stated Docket No. 50-309 cc: See next page Distribution: Docket Files 50-309 PUBLIC ACRS EDO R/F OGC DEDR R/F RBellamy, RI MTschlitz GTracy a:\Meisner.wpd 9

ROPMSf C: ROP OC E MDTschiltz GMTrac LJChandler FJ 6/3 /99 6/g/99 6/

6/ f/99

MaineYankee P.O. BOX 408

• WISCASSET, MAINE 04578 + (207) 882-6321 i

i December 7,1998 MN-98-73 MJM-98-64 Mr. William D. Travers Executive Director for Operations U.S. Nuclear Regulatory Commission Washington, DC 20555

References:

(a) License No. DPR-36 (Docket No. 50-309)

(b) Letter to USNRC from MYAPCo, Claim of Backfit " Generic Issue 82, Beyond Design Basis Accidents in Spent Fuel Pools", dated February 17, 1998 (MN-9811)

(c) Letter to MYAPCo from USNRC, Determination Concerning Maine Yankee Atomic Power Company Claim of Backfit Regarding Beyond Design Basis Accidents in Spent Fuel Pools, dated April 21,1998.

(d) Letter to USNRC from MYAPCo, Appeal of NRC Determination Concerning Maine Yankee Atomic Power Company Claim of Backfit Regarding Beyond Design Basis Accidents in Spent Fuel Pools (Generic Issue 82), dated May 6,1998 (MN-98-38)

(e) Letter to MYAPCo from USNRC, Exemption From Certain Requirements of 10CFR50.54(b) and (c), and Appendix E to 10 CFR Part 50 at Maine Yankee Atomic Power Station (TAC No. MN0069), dated September 3, 1998 (f) Letter to USNRC from MYAPCo, Emergency Plan Exemption Bases and Associated Information; Claim of Backfit, dated September 22,1998 (MN-98-59)

(g) Letter to MYAPCo, from USNRC, Director's Decision Conceming Maine Yankee Atomic Power Company Claim of Backfit Regarding Beyond-Design-Basis Accidents in Spent Fuel Pools, dated November 6,1998

Subject:

Appeal of Director's Decision Cor.cerning Maine Yankee Atomic Power Company Claim of Backfit Regarding Beycnd Design Basis Accidents in Spent Fuel Pools

Dear Mr. Travers:

In Reference (g), the Director of the Of'. ice of Nuclear Reactor Regulation forwarded to us his br.ckfit determination based upon the recommendations of the Backfit Review Panel. This determination stated that the staff did not backfit Maine Yankee in evaluating our request for relief from offsite emergency preparedness requirements of 10 CFR 50.54 (q). We wish to appeal this decision to you.

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U.S. Nuclear Regulatory Commission MN-98-73 Atta: Mr. William D. Travers Page Two In nearly all respects, the Backfit Review Panel (BRP) confirmed our concerns over the staff handling of the requested exemptions on emergency planning. Maine Yankee is pleased that the BRP concluded that for Maine Yankee a zirconium cladding fire resulting from a draindown of the spent fuel pool need not have been considered by the NRC in acting on Maine Yankee's exemption request. We are also pleased that the BRP agreed with us, contrary to Reference (c),

that the application of the backfit rule should not depend on whether the change comes from an NRC initiative or a licensee application. It is also interesting to note that the BRP stated that there was not a clear nexus between the need for a comprehensive emergency plan and a zircalloy fire, contrary to the staff's assedion in Reference (c). Additionally, the BRP found that the staff did not pursue a risk-informed reasonable assurance approach, seeking instead to develop en absolute safety finding.'

The Backfit Review Panel's report does not disclose a clear, reasoned justification for their determination that no backfit was imposed. As best we can tell, the Panel concluded that there is something special about an exemption proceeding - so special that the staffis allowed to (1) ask and have answered any question that they deem relevant and (2) apply new and changing acceptance criteria unfettered by regulatory control or intemal staff guidance.

We believe this conclusion to be untenable.

Consider what is likely to happen next year. The staff will go to miemaking on emergency planning for decommissioning plants to institutionalize their position with regard to zircalloy fire by defining a specific period of fuel decay time required before a licensee may reduce their off-site emergency planning capability. In the course of the rulemaking process, even if the staff does not volunteer a backfit analysis, we believe that the Commission will require a backfit analysis for the simple reason that 10CFR50.109 requires it, i.e., ifit weren't a new staff position there would be no need for rulemaking. The staff already has an extensive technical basis to demonstrate failure to meet the backfit test - that no substantial safety benefit exists, that the probability of a zircalloy fire even early in decommissioning is low (because it depends upon an incredible, catastrophic seismic event as its initiator) and that the costs incurred by Maine Yankee and other facilities are well in excess of the minimal safety benefit achieved.

Yet, the ' staff has been successful in imposing a requirement on Maine Yankee and other facilities that they cannot achieve through rulemaking. This isn't logical or even a responsible application of the regulations.

1 I

t i ' Unfortunately, we are told by the Decommissioning Branch that these and other findings of the BRP are nothing more than recommendations, do not constitute staff policy and will not be considered further. Our understanding is that the Decommissioning Branch feels responsible only to address their lack of timeliness in deahng with our exemptions.

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-[ U.S. Nuclear Regulatory Commission MN-98-73 Attn: Mr. William D. Travers Page Three The backfitting process that Maine Yankee has initiated is more than just as academic exercise.

I The rulemaking on decommissioning (10CFR50.82) was is, sued with the explicit recognition that licensees would need to request exemption from certain rules like emergency planning and nuclear insurance. It is impossible to decommission a nuclear plant under the current regulatory scheme without requesting exemptions. Neither Maine Yankee nor other licensees can be successful with the regulatory constraints in place unmitigated by the backfit rule.

. It is difficult for us and the industry to understand the NRC's aversion to following the backfit  !

process. Almost without fail, rather than simply applying the backfit test, the staff searches for new and creative ways to avoid it. Don't these new staff positions on applicability of the backfit rule to exemptions themselves constitute backfits that should meet the substantial safety benefit test?

Between Maine Yankee and NRC, we've probably wasted thousands of man-hours on this issue, much ofit valuable management time. We could have avoided the wasted effort by simply.

asking ourselves, in a risk-informed way, "Is this issue important to safety?" But, that's all the backfit process does. It is an excellent tool for determining where to place our safety focus.

Rather than avoiding its use, we think the staff should be embracing it, if nothing else, as an efficiency and optimization tool - as a means to allocate resources on important issues and eliminate unnecessary activities.

In conjunction with this appeal, we would like to request a meeting with you so that our positions, and any NRC staff counter positions, can be fully explored prior to any final decisions.

As noted previously, we had great difficulty it 'etermining the BRP's actual basis for concluding that no backfit was imposed. In or; r that we may be able to effectively prepare for the appeal, we'd request you to carefully review the BRP's report and, if you agree that the basis is difficult to identify, issue a supplement to the report that clearly explains the logic behind the Panel's conclusion.

Finally, we'd like to renew our previous request to revise and reissue the SER the staff prepared in approving our emergency planning exemptions.2 Regardless of the staff's position on backfit, the BRP's findings on zircalloy fire and lack of risk-informed consideration3 are entirely inconsistent with the bases for approval of our exemption requests. We believe that NRR management agreed to make the SER bases consistent with the BRP findings, and request that the SER be modified appropriately, as'well as being updated to correct other mistakes that we've identified to the staff (Reference f).

2 Normally, our outstanding request to the staff should suffice, however we have been informed e by the Decommissioning Branch management that correction of the SER would not occur without direction from their management.

3 For example, in the SER the staff introduced an entirely new scenario - an adiabatic heatup of the fuel. Unlike the zircalloy fire which is a very low probability event, an adiabatic heatup is an impossible situation, which suggests to the public that such an event can occur.

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e-U.S. Nuclear Regulatory Commission MN-98-73 Attn: Mr. William D. Travers Page Four We look forward to meeting with you and discussing this issue further. If you would like to discuss any of these issues before then, please feel free to contact me at 207-882-5700. l Very truly yours,,

K C2B_

Michael J. Meisner, President Maine Yankee c: Document Control Desk Chairman Shirley A. Jackson Commissioner Greta J. Dieus Commissioner Nils J. Diaz Commissioner Edward McGaffigan, Jr.

Commissioner Jeffrey S. Merrific!d Mr. Samuel Collins Mr. Hubert Miller Mr. John Zwolinski l Mr. Michael Webb 1 Mr. Michael Masnik Mr. Ron Bellamy Mr. Patrick J. Dostie Mr. Uldis Vanags