ML20236S981

Summary of 980710 Meeting W/Util in Rockville,Md Re Plant Backfit Appeal.Appeal Submitted Per NRC Determination Re Plant Emergency Preparedness Exemption

ML20236S981
Person / Time
Site:	Maine Yankee
Issue date:	07/22/1998
From:	Michael Webb NRC (Affiliation Not Assigned)
To:	NRC (Affiliation Not Assigned)
Shared Package
ML20236S983	List: ML20236S981 ML20236T019
References
NUDOCS 9807270353
Download: ML20236S981 (29)

Text

- - - _ - _ _ _ _ _ _ - _ _ _ _ - ____________ ___-__ - _ _ _ _ -_

! 1 l July 22, 1998 i FACILITY: Maine Yankee Atomic Power Station l

SUMMARY

OF MEETING HELD ON JULY 10,1998, TO DISCUSS BACKh.

APPEAL SUBMITTED BY MAINE YANKF.E ATOMIC POWER COMPANY On July 10,1998, staff of Maine Yankee Atomic Power Company (Maine Yankee) met at Rockville, Maryland, with the NRC staff .to discuss a Maine Yankee backfit appeal. TN, appeal was submitted pursuant to an NRC determination regarding a Maine Yankee emergency preparedness exemption. Members of the public also provided comments. A list of attendees is included as Enclosure 1.

' Maine Yankee provided certifications of permanent cessation of operation and permanem removal of fuel from the reactor vessel on August 7,1997. On November 6,1997, Maine

. Yankee submitted an exemption request' to discontinue certain aspects of offsite emergency preparedness to reflect the permanently defueled status of the plant. On February 17,1998, Maine Yankee subrnitted a backfit claim pursuant to 10 CFR 50.109

.that stated that the NRC staff was using inappropriate acceptance criteria for granting the )

exemption, in a letter dated April 21,1998, the NRC provided its determination that the staff's decision to rely on a spent fuel heatup analysis to evaluate Maine Yankee's exemption request did not constitute a backfit. In a letter dated May 6,1998, Maine Yankee filed an appeal of the staff's determination. On June 9,1998, the Deputy Director, Office of Nuclear Reactor Regulation, appointed a backfit review panel to review the Maine Yankee appeal. The July 10,1998, meeting was held to allow Maine Yankee to present its appeal to the panel.

The handout used by Maine Yankee is included as Enclosure 2. A background paper prepared by the Nuclear Energy Institute discussing generic issues related to the Maine Yankee backfit claim is included as Enclosure 3.

The meeting was transcribed. The trant.cript is included as Enclosure 4. The transcript will be placed on the Maine Yankee docket and be available for public review at the NRC's local public document room at the Wiscasset Public Library, High Street, Wiscasset, Maine. In addition, the transcript is available on the NRC Internet web site at www.nrc. gov /opa/ reports /my.htm.

ORIGINAL SIGNED BY:

Michael K. Webb, Project Manager gM Ap 7^" Non-Power Reactors and Decommissioning u M@ [" pad a w nv ;g ypf

Project Directorate Division of Reactor Program Management Office of Nuclear Reactor Regulation Docket No. 50-309

Enclosures:

As stated cc w/ enclosures: See next page DISTRIBUTION:

E-MAIL HARD COPY  !

SCollins/FMiraglia (SJC1/FJM) Docket File' 50-3091 JZwolinski RDavis BBoger (RPZ) PUBLIC FCongel JGray /

JRoe (JWR) ' Region i GLainas MWebb

SWeiss (SHW) PDND 'If DBarss DWheeler L EHylton (EGH)  :.' 7 U O 3 d MMasnik JBeall BMcCabe (BCM) OGC (015 B18) RCaruso [

,. PDND (Decomm. staff) EHylton SCrockett f,

PDND:PM P PDND:(A)Sg 4 MWebb s n MMasnik M mss 7/r*/98 7/2J/98 7/7f/98 7/j)/98 ,

OFFICIAL RECORD COPY DOCUMENT NAME: G:\SECY\MTG_NOTC\7-10MW. SUM 9807270353 990722 PDR ADOCK 05000309 l T PDR

]

Kra i l

[ t UNITED STATES

'E NUCLEAR REGULATORY COMMISSION L

L

'E WASHINGTON. D.C. 20666-0001

/ July 22, 1998

[. .

i-FACILITY: Maine. Yankee ' Atomic Power Station I

SUMMARY

OF MEETING HELD ON JULY 10,1998, TO DISCUSS BACKFIT

~

APPEAL SUBMITTED - BY MAINE YANKEE ATOMIC POWER COMPANY l

'l On July 10,1998, staff of Maine Yankee Atomic Power Company (Maine Yankee) met at p

' Rockville, Maryland, with the NRC staff to discuss a Maine Yankee backfit appeal. The appeal was submitted pursuant to an NRC determination regarding a Mai ' Yankee emergency preparedness exemption. Members of the public also provided comments A

. list of attendees is included as Enclosure 1.

Maine Y'ankee provided certifications of permanent cessation of operation and permanent removal of fuel from the reactor. vessel on August 7,1997. On November 6,1997, Maine

. Yankee submitted an exemption request to discontinue certain aspects of offsite emergency preparedness to reflect the permanently defueled status of the plant. On February 17,1998, Maine Yankee submitted a backfit claim pursuant to 10 CFR 50.109 I l that stated that the NRC staff was using inappropriate acceptance criteria for granting the exemption. In a letter dated April 21,1998, the NRC provided its determination that the 1

. staff's decision to rely on a spent fuel heatup analysis to evaluate Maine Yankee's exemption request did not constitute a backfit, in a letter dated May 6,1998, Maine j Yankee filed an appeal of the staff's determination. On June 9,1998, the Deputy Director, i

Office of Nuclear Reactor Regulation, appointed a backfit review panel to review the Maine Yankee appeal.' The July 10,.1998, meeting was held to allow Maine Yankee to present its appeal to the panel.

The handout used by Maine Yankee . is included as Enclosure 2. A background paper prepared by the Nuclear Energy Instituto discussing generic issues related to the Maine '

L Yankee backfit claim is included as Enclosure 3.

i The meeting was transcribed. The transcript is included as Enclosure 4. The transcript wiu  !

be placed on the Maine Yankee docket and be available for public review at the NRC's local l public document room at the Wiscasset Public Library, High Street, Wiscasset,' Maine, in '

addition,' the transcript is available on the NRC Internet web site at i l

www.nrc. gov /opa/ reports /my.htm. l

/ % l / *K w Adr-  !

Michael K. Webb, Project Manager

!. {

Non-Power Reactors and Decommissioning i Project Directorate Division of Reactor Program Management Office of Nuclear Reactor Regulation Docket No. 50-309

Enclosures:

As stated cc w/cnclosures: See next page I

l

l<

Maine' Yankee Atomic Power Station Docket No. 50-309-

cc

t Mr. Charles B. Brinkman Friends of the Coast

. Manager - Washington Nuclear P.O. Box 98 h Operations Edgecomb, ME 04556

!. ABB Combustion Engineering L

12300 Twinbrook Parkway, Suite 330 Mr. William O' Dell Rockville, MD 20852 -

Operations Director Maine Yankee Atomic Power Company Thomas G. Dignan, Jr., Esquire P.O. Box 408 -

Ropes & Gray Wiscasset, ME 04578 One International Place Bostoni MA 02110-2624 Mr. George Zinke, Director Nuclear Safety and Regulatory Affairs

' Mr. Uldis Vanags Maine Yankee Atomic Power Company

State Nuclear Safety Advisor. P.O. Box 408 State Planning Office Wiscasset, ME 04578 State House Station #38

' Augusta, ME 04333 Mr. Jonathan M. Block

. Attorney at Law Mr. P. L. Anderson, Project Manager P,0. Box 566 Yankee Atomic Electric Company Putney, VT 05346-0566 580 Main Street Bolton, MA - 01740-1398 Mr. Michael J. Meisner, President Main Yankee Atomic Power Company Regional Administrator, Region i P.O. Box 408 U.S. Nuclear Regulatory Commission - Wiscasset, ME 04578

. 475 Allendale Road King of Prussia, PA 19406 Mr. Robert Fraser, Direct'or

. Engineering First Selectman of Wiscasset Maine Yankee Atomic Power Company Municipal Building P.O. Box 408 U.S. Route 1 Wiscasset, ME 04578 j Wiscasset, ME '04578 Mr. Patrick J. Dostie -

Mr. Richard Rasmussen State of Maine Nuclear Safety

' Senior Resident inspector inspector . .

Maine Yankee Atomic Power Company Maine Yankee Atomic Power Company U.S. Nuclear Regulatory Commission P.O. Box 408 -

P.O. Box E - Wiscasset, ME 04578 ,

.Wiscasset, ME 04578

{

Mr. Mark Ferri Mary Ann Lynch, Esquire Decommissioning Director

. Maine Yankee Atomic Power Company Maine Yankee Atomic Power Company P.O. Box 408 P.O. Box 408 Wiscasset, ME 04578 Wiscasset, ME 04578

ENCLOSURE 1 l

! Maine Yankee Atomic Power Company Backfit Appeal Meeting l July 10,1998 ATTENDEES l

NAME ORGANIZATION Michael Meisner Maine Yankee George Zinke Maine Yankee Ralph Beedle Nuclear Energy Institute Alan Chapple Nuclear Energy Institute Tony Pietrangelo Nuclear Energy Institute Lynnette Hendricks Nuclear Energy Institute Allen Nelson Nuclear Energy Institute Ellen Ginsberg Nuclear Energy institute Don Davis Yankee Atomic Energy Company Tom Harrison McGraw-Hill John Zwolinski NRC (Backfit Review Panel chairman)

Frank Congel NRC (Backfit Review Panel member)

Gus Lainas NRC (Backfit Review Panel member)  !

Seymour Weiss NRC Dan Berss )

NRC  !

l James Beall NRC  !

Ralph Caruso NRC Steve Crockett NRC Roger Davis NRC Joe Gray NRC Michael Webb NRC l Duke Wheeler NRC l

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ENCLDSURE 3 1

Generic Issues Related to l Maine Yankee Backfit Claim on Ernergency Planning Exemption Request A. Summary of the Facts of Maine Yankee's Backfit Clain)

On November 11,1997, Maine Yankee Atomic Power Company ("MYAPC"), the licensee for the Maine Yankee nuclear power plant, requested an exemption from '

certain emergency planning requirements contained in 10 CFR 50.54(q) based on its

. status as a decommissioning plant. NRC staff members expressed concern about approving MYAPC's exemption request unless certain spent fuel pool heatup issues (i.e., the zircaloy cladding fire scenario) were evaluated by Maine Yankee. The Staff indicated to MYAPC that its review of MYAPC's exemption request would include application of the acceptance criteria in NUREG-1353 " Regulatory Analysis for the Resolution of Generic Issue 82,'Beyond Design Basis Accidents in Spent Fuel Pools."' The NRC also indicated later that it intended to independently validate the licensee's analysis of the zircaloy fire cladding scenario using NRC computer codes that were relatively newly developed and previously untested.

On February 17,1998, MYAPC filed a Claim of Backfit asserting that the application of the criteria in NUREG-1353 was a backfit because it would require ,

MYAPC to address a beyond design basis fire scenario that had not been included in  !

its licensing basis. The staff denied MYAPC's backfit claim. The NRC's letter of denial stated that the staffs request that MYAPC perform a spent fuel heatup analysis does not constitute a backfit because backfit protection is not afforded to a  !

licensee seeking an exemption. The NRC's letter of denial further stated that the I

staffs " determination to grant [an) exemption is discretionary," and that making {

exemption approval " contingent upon meeting new requirements would not be a backfit so long as: (i) there is a rational basis for the new requirements, and (ii)  ;

there is a reasonable nexus between the new requirements and the subject matter  !

of the exemption."

i

,. Maine Yankee's backfit appeal puts forth several arguments which can be  !

i- summarized as follows. First, MYAPC argues that the form of a request for NRC i consideration of an issue does not affect the application of the backfit rule. Second, Yankee argues that the decommissioning rule specifically recognizes the prospective need for licensees to seek exemptions in the area of emergency planning. Third, l Yankee argues the NRC staffs evaluation criteria for exemptions has not been j formally issued as an agency position. Finally, Yankee contends that the staffs effort to apply Generic Issue 82 improperly imposes requirements already j determined by NRC staff not to be necessary. '

l

~

i Maine Yankee's backfit appeal currently is pending before a three member board l

l appointed by the Deputy Director, Office of Nuclear Reactor Regulation on June 9, t 1998. Pursuant to a notice issued by the NRC, dated June 30,1998, a public meeting will be held on July 10,1998, to permit the NRC and representatives of Maine Yankee to discuss the backfit appeal.

B. Questions Presentead

1. Does the backfit rule apply to decommissioning plants?

2. Does the backfit rule distinguish between licensee initiated requests for NRC  !

consideration and NRC initiated actions?

3. Is it a violation of the backfit rule to review an exemption request against ,

accident sequences and associated assumptions beyond those considered in the l existing licensing basis?

4. Can a NUREG be used as the basis to impose new or additional requirements on licensees?

C. Analysis of Generic Issues

1. Application of the backfit rule to decommissioning plants l

The applicability of the backfit rule to permanently shut down plants is an '

i important issue for the commercial nuclear power industry. Although the backfit rule does not on its face address the question regarding its applicability to decommissioning plants, nothing in the backfit rule or its Statement of Considerations suggests that the NRC intended to limit the rule to exclude plants undergoing decommissioning. In fact, the explicit terms of the backfit rule apply to plants undergoing decommissioning because they still are " operating" their plants under their Part 50 operating license, and the requirements of Part 50 and other regulations, such as Part 20, still apply unless an exemption has been granted.

In addition, the NRC's own explanation of the intent of the backfit rule provides a l strong public policy basis to apply it to decommissioning plants. The NRC has stated in its letter rejecting Yankee's backfit claim that "[t]he Backfit Rule was i i

intended to assure that once the NRC issues a license, the terms and conditions for operating under the license and regulations at the time ofinitial licensing are not arbitrarily changed post hoc by the Commission." The backfit rule was promulgated precisely because the Commission determined that a disciplined management process was necessary when new or additional requirements are being considered for imposition on licensees. The difference in a plant's operational status does not relieve the agency from its obligation to use the same standards for imposing requirements on decommissioning plants as are used for imposing requirements on operating plants. Decommissioning plants need and are entitled to the same predictability, stability and protection from arbitrary actions as operating plants.

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The purpose of the cost-benefit analysis mandated by Section 50.109 (unless adequate protection or compliance is at issue) is to compare the relative safety benefit of a proposed action with its economic impact. Requiring the NRC staff to engage in this analysis was intended to ensure that the agency carefully considered the basis for new or additional requirements to explain the basis for their imposition through a backfit analysis. It is difficult, if not impossible, to justify why the same analytical tool should not be used simply because a plant is undergoing decommissioning.

Support for the applicability of the backfit rule to decommissioning plants also is derived from the NRC's treatment of backfitting in the context of 10 CFR Part 72.

Section 72.02 specifically applies backfitting criteria to an independent spent fuel storage installation ("ISFSl") and a monitored retrievable storage installation

("MRS"). The NRC's decision with respect to these facilities argues for a similar position with respect to a decommissioning facility originally licensed under Part 50 because, as a practical matter, decommissioning simply is an intermediate step between operation and release of the the facility. The NRC has not provided an explanation adequate to distinguish among various facility phases.

2. Application of the backfit rule to exemption requests and other licensee initiated requests for approval The NRC denied backfit protection to Maine Yankee, in part, because the NRC's proposal that Yankee evaluate the zircaloy fire issue was raised in response to an exemption request. From the statements in the NRC's denial of MYAPC's backfit  !

claim, the agency's position regarding the application of the backfit mle appears to depend on whether imposition of a new or additional requirement derives from an NRC initiative or a licensee application. No provision of the backfit rule or the Statement of Considerations accompanying the rule supports this distinction. {'

The backfit rule applies to staff positions and interpretations regardless of the  ;

context. The agency's position with respect to the Maine Yankee issue creates a distinction that does not exist in the backfit rule. It could have broad implications for many other agency processes by which a licensee requests NRC approval for a proposed change to its facility, procedures or license as well as for those processes which permit a licnesee to take action without NRC approval (e.g.,10 CFR 50.59).

Taken to its extreme, the NRC's position would allow it to use any licensee request for NRC consideration or approval, such as a license amendment, as an opportunity to impose requirements on the requesting licensee that the agency otherwise would i l be prevented from imposing because of the application of the backfit rule. The Statement of Considerations for the backfit rule clearly demonstrates that such a result. is contrary to the Commission's intent.

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l The backfit rule, by definition, relates to the imposition of new or additional requirements by the NRC. The Statement of Considerations for the backfit rule specifically addresses the effect of a licensee initiated request on the rule's applicability by explaining how the backfit rule would apply to a request for a license amendment. Obviously, a license amendment, like an exemption, is initiated by the licensee, but requires NRC approval of the suggested changes affecting the license. The Statement of Considerations for the rule states:

"[I]f a licensee believes that the amendment process is being used by the staff to impose a backfit, the licensee may invoke the rule under Section 50.109. It is unnecessary to amend the rule in this regard since mention of the point  :

here provides adequate direction to the Staff and licensees." 50 Fed. Reg. 38097, 38101; September 20,1985.

An exemption application is not different from a license amendment application or a license application. Likewise, these applications are not different from inspection and enforcement action in that the backfit rule was promulgated to ensure that licensees are not subjected to new and unjustified agency positions in any of these circumstances. Withholding an exemption based on a new position or a new interpretation does not promote a predictable and stable regulatory system. This is particularly true if the reason the exemption is withheld is the failure of a licensee to agree to implement a new or changed staffposition.

3. Application of the backfit rule to exemption requests reviewed against sequences or assumptions beyond those considered in the existing licensing basis Although it does not appear that the NRC has formally addressed whether the NRC's determination on an exemption request must be based only on those accident sequences evaluated as part of the plant's licensing basis, backfitting protection should be afforded despite the highly discretionary nature of 10 CFR 50.12 determinations.

There can be no question that in order for an exemption to be granted, the Commission must determine that the exemption will not present an undue risk to the public health and safety, is consistent with the common defense and security and special circumstances are present (10 CFR 50.12(a)(1) and (2)). In its application of the " undue risk" requirement, agency practice has not been to interpret this criteria as requiring safety margins equivalent to those maintained l

by meeting the regulation. Rather, the NRC has treated this criteria as akin to an

" adequate protection" standard. We would agree that the NRC can and should 1 grant a licensee request for an exemption so long as the adequate protection standard is met. A requirement proposed by the NRC that is necessary to ensure m' equate protection, even if a backfit, would be acceptable under 10 CFR 50.109.

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7 l IIowever, in its correspondence in response to Maine Yankee's backfit claim the staff does not suggest that MYPAC must perform a zircaloy fire analysis in order to meet the adequate protection standard. In fact, and as is discussed below, the NRC i

has documented its decision that consideration of the zircaloy cladding fire scenario is not necessary for adequate protection. See NUREG-1353, " Regulatory Analysis for the Resolution of Generic Issue 82, 'Beyond Design Basis Accidents in Spent Fuel Pools?"

Further, this issue is illuminated by the guidance for the license amendment process under 10 CFR 50.00. In the context of addressing how license amendments are to be handled under the backfit rule, the NRC's own staff manual on the backfit rule specifically directs the staff to limits its review oflicense amendments to the original licensing basis:

" Licensee-proposed revisions in design or operation that raise staff questions only about potential reduced margins of safety as defined in the basis for any technical specification should be reviewed by j reanalysis. of the same accident sequences and associated assumptions

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as analy:ed in the FSAR for the initial license issuance."

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i Thus, reviewing a license amendment application against accident sequences

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and associated assumptions beyond those considered in the existing licensing basis would constitute a backfit. So, too, is the same proposition equally  !

valid for an exemption.

4. Imposition of reguintory requirements through n NUREG Maine Yankee's backfit appeal, in part, is based upon the NRC's statements that i

Maine Yankee would be required to perform an analysis of spent fuel heatup in the event of a loss of water in the spent fuel pool in order to obtain the exemption.

Often described as the zircaloy cladding fire issue, this matter has been subjected to '

NRC evaluation and reported on in NUREG-1353," Regulatory Analysis for the Resolution of Generic Issue 82, 'Beyond Design Basis Accidents in Spent Fuel Pools /" The NRC itself has determined that the agency should not impose requirements to perform a zircaloy fire analysis on licensees. The NRC's determination was based on its in-depth evaluation from both a technical and a l

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l cost / benefit perspective. NUREG 1353 specifically states:

Uccause of the large inherent safety margins in the design and construction of the spent fuelpool, Alternative 1. 'No Action' is justified."

The risk change estimates, value/ impact and cost benefit analyses, and other insights gained during this effort, have shown that no new regulatory requirements are warranted in relation to this generic issue.

The NRC recently issued a draft NUREG/CR 6441, " Analysis of Spent Fuel Heatup following Loss of Water in a Spent Fuel Pool." 03 Fed. Reg. 30029, June 2,1998.

Although this report focuses on the computer code methodology by which this issue may be analyzed, it appears that this NUREG may be the basis for requiring licensees to evaluate spent fuel heatup accident scenarios not previously required as part of the a plant licensing basis. Licensees may not be required to undertake such analyses based upon a NUREG, which document has no legal or regulatory authority.

More than a decade ago, in 1984, Mr. William Dircks, NRC Executive Director for Operations stated "we must resist the practice of developing requirements guidance in the context of a NUREG and then, at some later and more convenient time, merely referencing that NUREG in a few sentences added into a standar.4 review plan." He further limited the staffs use of NUREGs, stating that NUREGs "are appropriate for describing work done relevant to the development of new requirements, but should not be used as the official expository description of the requirement." Memorandum from William J. Dircks to Harold R. Denton, dated May 7,1984. Mr. Dircks statement a few months thereafter aptly sums ap NRC policy on the subject of the agency's use of NUREGs: "I believe it is necessary to continue our policy of not using NUREG reports to promulgate regulatory guidance...." Memorandum from William J. Dircks to Harold E. Denton, dated July 12,1984.

The agency policy of not using NUREG reports to promulgate aulatory guidance or impose regulatory requirements remains sound. To the scent that a NUREG states a new staff position which would require additionallicensee action, these actions certainly should be subjected to a backfit analysis. Further, in any case other than where adequate protection or compliance with an existing regulation is

- at issue, if the NRC wishes to ensure that licensees evaluate particular accident l

scenarios or wishes to impose any additional requirement on licensees, the appropriate rulemaking procedures must be followed and backfitting and other regulatory analyses performed. To do otherwise is a violation of the backfit rule and the administrative procedures by which the NRC must abide. The NRC cannot l

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' 1 use an exemption request to obtain a licensee commitment to take a particular  !

action (beyond that required to demonstrate "no undue risk" pursuant to Section  ;

50.12(a)(2)) that the NRC could not have compelled had the exemption request not I been made.

i D. Conclusion Maine Yankee's backfit claim should have been granted for the following reasons:

The backfit rule applies to decommissioning plants.

The backfit rule applies to both licensee initiated requests for NRC consideration and NRC initiated actions.

The backfit rule should be applied to prohibit the staff from conditioning the grant of an exemption on actions that address accident sequences and associated assumptions beyond those considered in the existing licensing basis.

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

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