ML20248M034
| ML20248M034 | |
| Person / Time | |
|---|---|
| Site: | Maine Yankee |
| Issue date: | 06/09/1998 |
| From: | Miraglia F NRC (Affiliation Not Assigned) |
| To: | Congel F, Lainas G, Zwolinski J NRC (Affiliation Not Assigned), NRC OFFICE FOR ANALYSIS & EVALUATION OF OPERATIONAL DATA (AEOD) |
| References | |
| NUDOCS 9806120273 | |
| Download: ML20248M034 (3) | |
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UNITED STATES y*
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NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 2056f4001 k...../
June 9, 1998 MEMORANDUM TO: Frank J. Congel, Director incident Response Division Office for Analysic and Evaluation of Operational Data Gus C. Lainas, Acting Director Division of Engineering Office of Nuclear Reactor Fwiation John A. Zwolinski, Acting Director Division of Reactor Projects,1/11 Office of Nuclear Reactor Regulation C
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FROM:
Frank J. Miraglia, Deputy Director l6 g
Office of Nuclear Reactor Regulation
SUBJECT:
APPOINTMENT TO BACKFIT REVIEW PANEL In accordance with NRR Office Letter No. 901, " Procedures for Managing Plant-Specific Backfits and 10 CFR 50.54(f) Information Requests," you are hereby appointed as members of a backfit review panel to review a May 6,1998, appeal filed by Maine Yankee Atomic Power Company (Maine Yankee) regarding a staff determination regarding a backfit claim made by Maine Yankee under.10 CFR 50.109. Mr. Zwolinski will serve as the panel chairman.
You are tasked with recommending to the Director, NRR, whether or not the criteria being used by the staff in evaluating a Maine Yankee request for relief from offsite emergency
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preparedness requirements of 10 CFR 50.54(q) constitute a backfit. Michael Webb, the Maine Yankee Project Manager will provide assistance in managing the appeal process and arranging a meeting at which the licensee can present its appeal to the panel. The Director's Decision should be forwarded to the licensee within about four weeks of the appeal meeting.
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Background
l On August 7,1997, Maine Yankee provided certifications, under 10 CFR 50.82(a)(1), of permanent cessation of operations and permanent removal of fuel from the reactor vessel.
With these certifications, the Maine Yankee 10 CFR Part 50 license no longer authorized operation of the reactor or emplacement of or retention of fuelinto the reactor vessel.
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I CONTACT:
Michael K. Webb, PDND/NRR 415-1347 l
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,a 9906120273 980609 PDR ADOCK 05000309 F
2 June 9,1998 By letter dated November 11,1997, Maine Yankee requested exemption from portions of 10 CFR 50.54(q) to allow Maine Yankee to discontinue certain aspects of offsite planning activities due to the reduction in risk to the public associated with the permanently shutdown and defueled facility. The major portions of the exemption included elimination of emergency classification above the " alert" level, elimination of offsite emergency response provisions, and elimination of offsite protective measures.
On November 25,1997, at a meeting held at NRC headquarters in which Maine Yankee provided an overview presentation of its proposed Defueled Emergency Plan, the staff indicated that issuance of an exemption would be contingent on the staff's determination that the facility was no longer vulnerable to an event that could result in projected doses to the public that exceed the Environmental Protection Agency (EPA) Protective Action Guides (PAGs). The events that the staff would consider included a heatup of spent fuel pool as discussed in NUREG-1353, " Regulatory Analysis for the Resolution of Generic issue 82, Beyond Design Basis Accidents in Spent Fuel Pools."
On February 17,1998, Maine Yankee filed a claim of backfit regarding the staff's use of criteria based on NUREG-1353. (Sea Attachment 1).
On April 21,1998, the NRC issued its response to the Maine Yankee backfit claim, stating i
that it had determined that the staff's decision to rely on a spent fuel pool heatup analysis to evaluate Maine Yankee's request for exemption from emergency preparedness requirements did not constitute a backfit. (See Attachment 2).
On May 6,1998, Maine Yankee filed its appeal of the NRC determination. (See i ).
Docket No. 50-309 Attachments: As stated DISTRIBUTION:
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2 By letter dated November 11,1997, Maine Yankee requested exemption from portions of 10 CFR 50.54(q) to allow Maine Yankee to discontinue certain aspects of offsite planning activities due to the reduction in risk to the public associated with the permanently shutdown and defueled facility. The major portions of the exemption included elimination of emergency classification above the " alert" level, elimination of offsite emergency response provisions, and elimination of offsite protective measures.
On November 25,1997, at a meeting held at NRC headquarters in which Maine Yankee provided an overview presentation of its proposed Defueled Emergency Plan, the staff indicated that issuance of an exemption would be contingent on the staff's determination that the facility was no longer vulnerable to an event that could result in projected doses to the public that exceed the Environmental Protection Agency (EPA) Protective Action Guides (PAGs). The events that the staff would consider included a heatup of spent fuel pool as discussed in NUREG 1353, " Regulatory Analysis for the Resolution of Generic Issue 82, Beyond Design Basis Accidents in Spent Fuel Pools."
On February 17,1998, Maine Yankee filed a claim of backfit regarding the staff's use of criteria based on NUREG-1353. (See Attachment 1).
On April 21,1998, the NRC issued its response to the Maine Yankee backfit claim, stating that it had determined that the staff's decision to rely on a spent fuel pool heatup analysis to evaluate Maine Yankee's request for exemption from ernergency preparedness requirements did not constitute a backfit. (See Attachment 2).
On May 6,1998, Maine Yankee filed its appeal of the NRC determination. (See ).
Docket No. 50-309 Attachments: As stated
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t MaineYankee P.O. BOX 408 + WISCASSET, MAINE 04578 + (207) 8824321 February 17,1998 MN-98-11 MJM-98-07 U.S. NUCLEAR REGULATORY COMMISSION Attention: Document Control Desk Washington, DC 20555-0001
Reference:
(a) License No. DPR-36 (Docket No. 50-309)
(b) Letter to USNRC from MYAPC, Defueled Emergency Plan and 10CFR50.54(q),
Exemption Reouest, dated November 6,1997 (MN-98-119)
Subject:
Claim of Backfit " Generic Issue 82, Beyond Design Basis Accidents in Spent Fuel Pools" Gentlemen:
In Reference (b) Maine Yankee submitted a request for exemption from certain regulations associated with implementation of Emergency Planning. This request wasjustified in part due to the significantly reduced accident risk and consequences associated with the configuration of the stored fuel and operations of a permanently shutdown facility, it has come to our attention that the staffis using acceptance criteria and taking positions more stringent th:.n those previously accepted in the Maine Yankee license bssis. Specifically, criteria from NUREG-1353 " Regulatory Analysis for the Resolution of Generic Issue 82, 'Beyond Design Basis Accidents in Spent Fuel Pools'"(commonly referred to as the 'Zircaloy cladding fire') are i
being applied. These criteria did not form the basis for any portion of the Maine Yankee Emergency Plan as approved by the NRC. Likewise, these criteria did not form the basis for any of the regulations from which exemption is being prepased. Maine Yankee believes that such application constitutes a backfit in accordance with 10CFR50.109. In addition to being a backfit, application of the criteria is problematic due to its incomplete nature and questionable benefit. NUREG-1353 concluded "the backfit criteria (10CFR50.109) that (1) a substantial increase in the overall protection of the public health and safety is achieved, and (2) the direct and indirect costs ofimplementati arejustified are not met, and Alternative 1 'No Action' is recommended for the resolution of GI-3 82."(emphasis added)
In accordance with 10CFR50.109 and USNRC Manual Chapter 0514 "NRC Program for Management of Plant-Specific Backfitting of Nuclear Power Plants", Maine Yankee requests that g
this claim of backfit be appropriately reviewed.
OI As Sve discussed with you on February 11, it is our understanding that upon initiation of a backfit review NRC guidance requires that the review be conducted separately from pending licensing activity, and that such licensing activity not be delayed by the backfit review. With respect to the pending review ofEmergency Plan exemption requests, and other reviews which the NRC may deem depend upon the Zircalloy fire analysis, we understand that those reviews will be conducted in a timely manner.
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MaineYankee U.S. NUCLEAR REGULATORY COMMISSION MN-98-11 Attention: Document Control Desk Page Two Additionally it has come to our attention that some of the staff believe that 10CFR50.109 is not applicable to plants which have submitted certifications in accordance with 10CFR50.82(a). We believe such an interpretation is incorrect. Attachment I to this letter provides our view on this
- matter, if you have any questions, please contact us.
Very truly yours, (S
Michae J. Meisner, e President Nuclear Safety & Regulatory Affairs Department c:
Mr. Samuel Collins Mr. Hubert Miller Mr. Leonard J. Callan Mr. Michael Webb Mr. Michael Masnik Mr. Ron Bellamy Mr. R. A. Rasmussen Mr. Clough Toppan Mr. Patrick J. Dostie Mr. Uldis Vanags Mr. Lawrence J. Chandler
ISSUE:
ATTACHMENT 1 l
In various forums, the NRC Staff has stated that "the scope of the backfit provisions in l
10CFR50.109 is limited to construction and operation of neclear reactors."
The staff has subsequently concicded that the backfit rule does not apply to reactors that have permanently operations and are defueled. Maine Yankee disagrees with this stafTinterpretation of10CFR50.109.
REGULATORY BACKGROUND:
10CFR50.109(a)(1) defines backfitting "as the modification of or addition to systems, structures components, or design of a facility; or the design appmval or manufacturing license for a facility; or the procedures or organization required to design, coect or operate a facility; any ofwhic result from a new or amended provision in the Commission rules or the imposition of a regulat staff position interpreting the Commission mies that is either new or different from a presiously applicable staff position after..."
Proposed Rule on Financial Protection Requirements for Permanently Shutdown Nuclear Power Reactors (62 F.R. 58690; October 30,1997) Backfit Analysis stated "The NRC has determined that the backfit rule,10CFR50.109, does not apply to this proposed rule because the backfit rule is limited in scope to construction and operation of nuclear reactors. This rule would only apply reactors that have permanently ceased operations. Therefore, a backfit analysis is not required because these amendments do not involve any provisions that would impose backfits as defined in 10CFR50.109(a)(1)."
10CFR50.2, Definitions, does not define the terms " operate" or " facility."
10CFR50.2 defines the following: " Permanent cessation ofoperation(s) means, for a nuclear power reactor facility, a certification by a licensee to the NRC that it has permanently ceased or will permanently cease reactor operation (s), or a final legally effective order to permanently cease operation (s) has come into effect."
10CFR50.82 final miemaking (61 FR 39301; July 29,1996) Supplementary Information Issue 15 noted that "Several commenters stated that the backfit rule, Q50.109, should apply to decommissioning because a proper reading of the intent of that mle should cover miemaking deal with decommissioning. Otherwise, additional requirements could be imposed without a benefit cost analysis." The NRC response was "The Commission has concluded that the provisions addressed in this rulemaking do not involve a backfit because they address only reactors that have permanen ceased operations and Q50.109 only applies to design, construction and operation of a facility. These regulations are primarily procedural in nature and, to the extent they address nonprocedural matters, they are a codification of existing process."
10CFR50.2 defines the following: " Major decommissioning activity means, for a nuclear power reactor facility, any activity that results in permanent removal of major radioactive components, I
permanently modifies the stmeture of the containment, or results in dismantling components for shipment containing greater than class C waste in accordance with s61.55 of tlus chapter."
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4 10CFR72.62 Backfitting, defines backfitting in part as the addition, elimination, or modification of structures, systems, or components of an independent spent fuel storage installation. 10CFR72.3 j
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further states that an independent spent fuel storage installation is a facihty.
10CFR50.109 Revision of Backfitting Process for Power Reactors (53 FR 20603; June 6,1988)
Supplemental Information provides no discussion which would indicate the scope of {50.109 is intended to be less than a common reading suggests (i.e., there is no discussion implicitly or explicitly excluding the backfit rule from facilities which have ceased reactor operations but are I
continuing to perform fuel storage and decommissioning operations).
DISCUSSION:
t The scope of 10CFR50.109 Backfitting is defined to be:
modification of or addition to 1.
systems, stmetures, components, or design of a facility 2.
the design approval or manufacturing license for a facility 3.
the procedures or organization required to design, construct or operate a facility The language of 10CFR50.109 specifically defines backfitting in terms associated with a " facility".
It does not use the word " reactor." The scope of 10CFR50.109 is described in terms of activities at a facility rather than types of facilities. In accordance with 10CFR50.82, when a power reactor licensee dockets the certification for permanent cessation of operations, the 10CFR50 license no longer authorizes operation of the reactor. It does not relieve or restrict the licensee relative to other licensed " operations." For example, the license continues to authorize control, storage and maintenance of spent fuel. Although the licensee is not authorized to operate the reactor, the facility is still referred to as a " nuclear power reactor facility"in accordance with 10CFR50.2 definitions.
Webster's Dictionary defines " operate" 1) to perform a function, or 2) to cause to function.
10CFR50.2 does not provide any clarification to a common defmition of" operate." With regard to the " procedures or organization required to... operate a facility," the rule does not limit the scope of" operate" to " operate the reactor." If this were the case, functions such as maintenance, radiation protection, storage of fuel, and radioactive material handling would be excluded from the scope of l
the backfit rule for all facilities.
With regard to decommissioning activities, it is reasonable to associate the term " operate"in that the licensee is required by 10CFR and other regulations to perform decommissioning activities. The functions (i.e. " operations") associated with a permanently shutdown and defueled nuclear power reactor facility are no different than those authorized during the time the licensee is authorized to operate the reactor. Potential safety impact to the public and the facility employees is not limited to reactor operations, but includes other operations at the facility associated with management of
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radioactive material. Review of the various background documents associated with 10CFR50.109 miemaking does not indicate any intent to instantaneously eliminate its applicability once a facility l
has submitted certifications under 10CFR50.82(a). Likewise, since the remaining operations are no different tnan those performed prior to the certifications (with the exception of reactor operation
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restriction), there is no reason to conclude that the authors of 10CFR50.109 had special concerns with the overall protection of the public health and safety or the common defense and security l
associated with facilities no longer authorized to operate a reactor. Indeed, our discussions with previous officials of the NRC who were involved in the update to the Backfit Rule indicate there was no intent to distinguish between operating and decommissioning plants.
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m 10CFR50.82(a)(iii) does refer to " licensees whose licenses have been permanently modified to allow possession but not operation of the facility.."; although this appears to be poor wording, the portion of the 10CFR50.82 applicable to Maine Yankee does net use that phrase and more acc refers to " operation of the reactor."
As can be inferred from 10CFR72.62, backfitting as a concept was not intended to be limited to facilities which operate nuclear reactors, but is also an important regulation for facilities whose operations are limited to spent fuel storage. The language of 10CFR50.109 clearly supports its applicability to facilities which have docketed 10CFR50.82(a) certifications.
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UNITED STATES f
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WASHINGTON. D.C. 20066 4001 April 21, 1998 Mr. Michael J. Meisner, President Maine Yankee Atomic Power Company P.O. Box 408 Wiscasset, Maine 04578
SUBJECT:
DETERMINATION CONCERNING MAINE YANKEE ATOMIC POWER COMPANY CLAIM OF BACKFIT REGARDING BEYOND DESIGN BASIS ACCIDENTS IN SPENT FUEL POOLS
Dear Mr. Meisner:
By letter dated February 17,1998, Maine Yankee Atomic Power Company requested that
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the U.S. Nuclear Regulatory Commission (NRC) review a Maine Yankee claim that criteria being used in the evaluation of a Maine Yankee exemption request constitute a backfit as I
described in 10 CFR 50.109. This letter provides the basis for the staff's position that the staff is using appropriate criteria in evaluating the Maine Yankee request for relief from offsite emergency preparedness requirements of 10 CFR 50.54(q).
Backaround On August 7,1997, Maine Yankee provided certifications, under 10 CFR 50.82(a)(1), of permanent cessation of operations and permanent removal of fuel from the reactor vessel.
With these certifications, the Maine Yankee 10 CFR Part 50 license no longer authorized operation of the reactor or emplacement of or retention of fuelinto the reactor vessel.
By letter dated November 11,1997, Maine Yankee requested exemption from portions of 10 CFR 50.54(q) to allow Maine Yankee to discontinue certain aspects of offsite planning activities due to the reduction in risk to the public associated with the permanently shutdown and defueled facility. The major portions of the exemption included elimination of emergency classification above the alert" level, elimination of offsite emergency response provisions, and elimination of offsite protective measures.
On November 25,1997, at a meeting held at NRC headquarters in which Maine Yankee provided an overview presentation of its proposed Defueled Emergency Plan, the staff indicated that issuance of an exemption would be contingent on the staff's determination that the facility was no longer vulnerable to an event that could result in projected doses to the public that exceed the Environmental Protection Agency (EPA) Protective Action Guides (PAGs).
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l Mr. Michael J. Meisner
-2 Discussion The NRC staff has determined that its request that Maine Yankee perform a spent fuel heatup analysis does not constitute the " imposition" of a backfit as defined in 10 CFR 50.109(a)(1). The Backfit Rule was intended to assure that once the NRC issues a license, the terms and conditions for operating under the license and regulations at the time of initiallicensing are not arbitrarily changed post hoc by the Commission. When a licensee I
seeks an exemption from a Commission requirernent, the licensee (not the NRC)is requesting authority to do what is not currently permitted un jer its license and applicable regulations, and the licensee has no valid expectations protested by the Backfit Rule regarding the terms and conditions for obtaining the new authority which is not permitted
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under the current regulations.
Maine Yankee initiated the exemption request pursuant to 50.12 to seek relief from applicable Section 50.54(q) requirements on emergency preparedness. Maine Yankee can choose to retain its existing emergency preparedness program in conformance with applicable Commission requirements.
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The NRC's determination to grant the exemption is discretionary. Granting the exemption contingent upon meeting new requirements would not be considered backfitting so long as:
l (1) 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 exempt on. The staff believes i
that the spent fuel heatup analysis is necessary to provide assurance that radiation doses would not exceed the " alert" emergency classification and necessitate the Section 50.54(q) emergency preparedness elements which Maine Yankee is seeking to dispense with under the exemption. Thus, the analysis is a relevant and determining factor in the staff's review whether to grant the exemption. We therefore conclude that the staff's request that Maine Yankee analyze the heatup of the spent fuel does not constitute the " imposition" of a backfit.
Conclusion The staff has reviewed Maine Yankee's claim of backfit and it is the staff's position that the staff's decision to rely on a spent fuel pool heatup analysis to evaluate a request for exemption from emergency preparedness requirements does not constitute a backfit.
If you choose to appeal the staff's backfit determination, you must do so within 60 calendar days of the date of this letter.
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I Mr. Michael J. Meisner if you have any questions regarding this matter, please contact Mr. Michael Webb of my staff. Mr. Webb can be reached at (301) 415-1347.
Sincerely, u5.To-J ick W. Roe, Acting Director ivision of Reactor Program Management Office of Nuclear Reactor Regulation Docket No. 50-309 cc: See next page
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Maine Yankee Atomic Power Station Docket No. 50-309 cc:
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, Suite 330 Mr. William d' 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 Boston, MA 02110-2624 Mr. George Zinke, Director Nuclear Safety and Regulatory Affairs Mr. UlJis 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.O. 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, Director Engineering First Selectman of Wisctiset Maine Yankee Atomic Power Company Municipal Building P.O. Box 408 U.S. Route 1 Wiscasset, ME 04578 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 l
Maine Yankee Atomic Power Company Maine Yankee Atomic Power Company P.O. Box 408 P.O. Box 408 Wiscasset, ME 04578 Wiscasset, ME 04578 L
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- f Mr. Michael J. Meisner If you have any questions regarding this matter, please contact Mr. Michael Webb of my staff. Mr. Webb can be reached at (301) 415-1347.
Sincerely, Jack W. Roe, Acting Director Division of Reactor Program Management Office of Nuclear Reactor Regulation Docket No. 50-309 cc: See next page DISTRIBUTION:
HARD COPY E MAIL COPY Docket File 50-309 MMasnik RBurrows AMarkley PUBLIC EHylton RDudley DWheeler PDND r/f MWebb MFairtile JMinns JRoe OGC (015 818)
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OFFICIAL RECORD COPY DOCUMENT NAME: G:\\SECY\\WEBB\\MEISNER
O MaineYankee PO. box 408 a WISCASSET. MAINE 04578 *(207) 882 6321 l
May 6,1998 I
MN-98-38 MJM-98-34 I
Mr. Leonard J. Callan Executive Director for Operations U.S. Nuclear Regulatory Commission l
Washington, DC 20555
References:
(a) License No. DPR-36 (Docket No. 50-309)
(b) Letter to USNRC from MYAPCo, Defueled Emergency Plan and 10CFR50.54(q), Exemption Request, dated November 6,1997 (MN-98-119)
(c) Letter to USNRC from MYAPCo, Claim of Backfit " Generic Issue 82, Beyond Design Basis Accidents in Spent Fuel Pools", dated February 17,1998 (MN-98-11)
(d) Letter to MYAPCo from USNRC, Determination Conceming Maine Yankee Atomic Power Company Claim of Backnt Pagarding Beyond Design Basis Accidents in Spent Fuel Pools, dated April 21,1992.
Subject:
Appeal of NRC Determination Concerning Maine Yankee Atomic fever Company Claim of Backfit Regarding Beyond Design Basis Accidents in Spent Fuel Pools (Generic issue 82)
Mr. Callan:
In Reference (b) Maine Yankee submitted a request for exemption from certain regulations associated with implementation of Emergency Planning. This request was justified in part due to the significantly reduced accident risk and consequences associated with the configuration of the stored fuel and operations of a permanently shutdown facility.
In Reference (c) Maine Yankee claimed plant specific backfits and requested this claim be appropriately reviewed pursuant to 10 CFR 50.109 and USNRC Manual Chapter 0514 "NRC Program for Management of Plant-Specific Backfitting of Nuclear Power Plants". This claim of backfit was precipitated by NRC's intention to use acceptance criteria and to take positions more stringent than those previously accepted in the Maine Yankee license basis. Specifically, criteria fium NUREG-1353 " Regulatory Analysis for the Resolution of Generic Issue 82, 'Beyond Design Basis Accidents in Spent Fuel Pools"'(commonly referred to as the 'Zircaloy cladding fire') are l
being applied. These criteria did not form the basis for any ponion of the Maine Yankee Emergency Plan as approved by the NRC. Likewise, these criteria did not form the basis for any of the regulations from which exemption is being proposed. In addition to being a backfit, application of the criteria is problematic due to their incomplete nature and questionable benefit.
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1 U.S. Nuclear Regulatory Commission MN-98-38 Attn: Mr. Leonard L Callan Page Two In addition, it now appears that the NRC also intends to require Maine Yankee to secure successful NRC-sponsored analysis results for these new enteria. Notwithstanding our claim of backfit, Maine Yankee did conduct a spent fuel heatup analysis and determined that this scenario is not possible at Maine Yankee considering the spent fuel decay heat load existing as of January 1998. Now Maine Yankee must wait for the NRC to conduct its own analysis of an event which we have already shown to be impossible. This additional regulatory burden goes beyond what we have already claimed to be a backfit, by imposing upon licensees a requirement to not only perform the appropnate licensee-sponsored analysis but also to provide the NRC with information, support and assistance, as necessary, to allow the NRC to conduct an independent analysis verifying the licensee's satisfaction of the new criteria. This is particularly onerous considering the untested nature of the NRC's computer code, and amounts to a code validation effort that subsequent licensees will not have to endure. Accordingly, Maine Yankee is hereby expanding its claim of backfit to include this additional requirement.
In Reference (d), the NRC made a determination that the staff's position to rely on a spent fuel pool heatup analysis to evaluate a request for exemption from emergency preparedness requirements does not constitute a backfit. Pursuant to 10 CFR 50.109 and USNRC Manual Chapter 0514, Maine Yankee is hereby appealing this determination. The basis for this appeal is enclosed.
While we think the technical basis for appeal is compelling, we wonder if there isn't a larger problem, namely that we've lost sight of the purpose of the Backfit Rule. It's not unusual for NRC management, in response to licensee complaints of being backfit, to point to the record which shows few backfit requests, and conclude that there's not a problem. Could it be that licensees have lost faith in the Backfit Rule because creative lawyering can conclude that the Rule doesn't apply in most substantive cases? As you review our appeal, please consider not just the instant case, but the broader message that has been sent by a history of backfit cenials, and the tendency of the staff to invariably err on the side of denial.
As we indicated in Reference (c), it was our understanding that upon initiation of a backfit review NRC guidance requires that the review be conducted separately from pending licensing activity, and that such licensing activity not be delayed by the backfit review. USNRC Manual Chapter 0514 states: "... plant construction, licensing action, or operation shall not be interrupted or delayed by NRC actions, during the staff's evaluation and backfit transmittal process, or a subsequent appeals process, until final action is completed under this chapter." In spite of this clear directive, NRC has interrupted and delayed the NRC actions associated with the Emergency Plan exemption requests (Reference (b)) by making an unsupponed, unwritten interpretation that interrupting and delaying approval of the exemption requests until completion of a Zircaloy fire analysis is acceptable. This interpretation is not consistent with the spirit or the letter of the backfit guidance. Therefore, we urge l
you to direct the staff to complete the review and issue approval of Reference (b) without funher interruption or delay.
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U.S. Nuclear Regulatory Commission MN-98-38 Attn: Mr. Leonard J. Callan Page Two This appeal is addressed to the Executive Director of Operations (EDO) for several reasons: 1) we understand the Zircaloy fire requirements are being imposed upon three plants which constitutes a generic backfit without CRGR or EDO review,2) the staff's oackfit denial raises generic issues associated with all licensee-initiated changes to the license basis (technical specifications, unreviewed safety questions, etc.) whether a plant is in decommissioning or operating, and 3) our assumption that the backfit denial represents an NRR position that should be appealed outside of NRR.
In conjunction with this appeal, we would also like to request a meeting so that our positions, and any counter-positions by the staff, can be fully explored prior to any final decisions.
Finally, Reference (d) did not address our contention that some of the NRC staffincorrectly believe that 10CFR50.109 is not applicable to plants which have submitted certifications in accordance with 10CFR50.82(a). Since the NRC chose to evaluate the specific issue (i.e., the Zircaloy fire) on its merits with respect to backfit applicability, and recognizes that we may appeal their decision under the Backfit Rule, we presume that the NRC now agrees that 10CFR50.109 is applicable to 10CFR50.82(a) certified plants.
If you have any questions, please feel free to contact me or George Zinke.
Ve truly rs.
h ael J. Meisner. President
. aine Y nkee c:
Document Control Desk Mr. Samuel Collins Mr. Hubert Miller Mr. Michael Webb Mr. Michael Masnik Mr. Ron Bellamy
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Mr. R. A. Rasmussen Mr. Clough Toppan Mr, Patrick J. Dostie Mr. Uldis Vanags Mr. Lawrence J. Chandler l
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o BASIS FOR APPEAL OF NRC DETERMINATION CONCERNING MAINE YANKEE ATOMIC POWER COMPANY CLAIM OF BACKFIT REGARDING BEYOND DESIGN BASIS ACCIDENTS IN SPENT FUEL POOLS I
BACKGROUND By letter dated April 21,1998, NRR determined that the NRC staff's decision to rely on a spent fuel pool heatup' analysis to evaluate a request for exemption from emergency preparedness requirements does not constitute a backfit. This determination was based upon the following: (1) it is Maine Yankee (not the NRC) that is requesting authority to do what is not currently permitted under its licerise and applicable regulations, (2) NRC's conclusion that Maine Yankee has no " valid expectations protected by the Backfit Rule" because it is asking for an exemption from a Commission requirement, (3) Maine Yankee can choose to retain its existing emergency preparedness program iil conformance with applicable Commission requirements, (4) the NRC's determination to grant the exemption is discretionary,(5)" granting the exemption contingent upon meeting new requirements would not be considered backfitting so long as: (i) there is a rational basis for the new requirements (namely the spent fuel heatup analysis) and (ii) there is a reasonable nexus between the new requirements and the subject matter of the exemptions."
Pursuant to NRC Manual Chapter 0514, "If the detemiination is that the proposed staff position is not a backfit, the appropriate staff office shall document the basis for the decision and transmit it together with any documented evaluation required by this section to the licensee." Therefore, it is appropriate for Maine Yankee to assume that the bases documented in Reference (d) constitute the complete bases for the NRC determination and that there are no other bases which support the NRC determination, i
I Maine Yankee disagrees with the NRC determination. In the discussion below, Maine Yankee presents its reasons for disagreeing with the NRC detennination and its basis. Thes'e reasons form 1
the support for Maine Yankee's appeal of this determination.
I DISCUSSION f
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Maine Yankee Does Have a Valid Expectation Protected by the Backfit Rule I
The NRC staff makes the following point (Reference (d)):
"The Backfit Rule was intended to assure that once the NRC issues a license, the terms and conditions for operating under the license and regulations at the time l
of initial licensing are not arbitrarily changed post hoc by the Commission.
l When a licensee seeks an exemption from a Commission requirement, the licensee (not the NRC) is requesting authority to do what is not currently permitted under its license and applicable regulations, and the licensee has no valid expectations protected by the Backfit Rule regarding the terms and conditions for obtaining the new authority which is not permitted under the current regulati,ons."
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l In simpler terms, the staffis contending that the regulatory framework within which the NRC and licensees operate is a one way path - as long as NRC retains the initiative in changing regulations and licenses then NRC will follow the rules ("the terms and conditions for obtainirg the new authority") in making the change. On the other hrnd, should a licensee request a change in regulation or license, no such restriction on the NRC applies - the NRC may ignore administrative requirements and prior staff positions ("the terms and conditions for obtaining the new authonty")
and introduce new requirements at will.
This position raises generic concerns, is contrary to NRC backfit policy and, taken to its logical conclusion, will lead to disruption of multiple regulatory change processes.
With respect to the staff's conclusion on backfit rule applicability, there is nothing unique about exemption requests. There are a number of regulatory processes which licensees use to "do what is not currently permitted under its license and applicable regulations". The more usual are 50.12, 50.54,50.59 and 50.90. Some processes have a threshold beyond which a proposed change must receive NRC approval before implementation (e.g., unreviewed safety question; decreased security plan effectiveness, etc.). Regardless, they all have one thing in common - they are initiated by the licensee rather than the NRC'. A change to a QA program that reduced commitments, an unreviewed safety question, a technical specification change - each is equivalent to an exemption request in being licensee initiated, "not currently permitted under its license and applicable regulations", and therefore, not protected by the Backfit Rule under the staffs current interpretation.
This is a very disturbing prospect. Essentially all licensee-initiated license basis changes which require NRC approval prior to implementation are subject to meeting arbitrary new requirements as a condition of approval - arbitrary, in the sense that they are unconstrained by regulation and do not have to meet a substantial safety benefit or cost / benefit test.
Yet, this is clearly at odds with previous staff practice. The staff has long held that the Backfit Rule applies to, for instance, technical specification changes that a licensee originates. The current version of NRC's backfit guidance (NRC Manual Chapter 0514), and all previous versions we're aware of, include licensee initiated changes under the protection of the Backfit Rule. For instance, the following discussion concerns updates to the Standard Review Plan (SRP):
" Application of an SRP to an operating plant after the license is granted generally is considered a backfit... Such changes that are clearly advances in design or operation may irriolve new or unreviewed safety issues, and may warrant review to SRP criteria which were approved subsequent to initial license issuance to the licensee. This is not considered a backfit. However, such review to newer SRP revisions is not necessarily required to determine current compliance with regulations. Licensee oronosed revisions in desien 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 reanalysis of the same accident sequences and associated assumptions as analyzed in the FSAR for the initial license issuance.
' 50.12 does allow the Comntission to issue exemptions on their own initiative.
1-1 During reload reviews, staff-orocosed Nsitions with recard to technical matters not related to the changes oronosed bv a licensee shall be considered backfits."
[ Emphasis added.]
Until the NRC's response to Maine Yankee's backfit claim the question of which party initiated an
' activity was i Televant as far as Backfit Rule applicability - as well it should be. Just as a licensee is required to comply with regulations, so should the NRC. To do otherwise will result i.1 a significant disruption of routine change mechanisms that, over the years, have included (ne protection of the Backfit Rule.
More generally, when a licensee requests an exemption or a technical specification change, it is requesting the Commission to follow a process defined in the regulations. Rules have defined purposes established at the point in time a rule is effective. Likewise, staff positions interpreting those mies are defined during the licensing process. It is a valid licensee expectation that the staff positions with regard to Commission mies will not change without due process (i.e. compliance with 10CFR50.109).
Specifically with regard to the "beyond design basis accidents in spent fuel pools," the applicable rules (10CFR50.34(a),10CFR50.47,10CFR50.54(q) and 10CFR50 Appendix E) did not have Zircaloy fire analysis forming any portion of their underlying purpose. Our reviews of the Maine Yankee license basis indicate that no regulatory position conceming Zircaloy fire analysis has formed the basis for initial licensing or any subsequent Emergency Preparedness licensing actions.
2, While Maine Yankee Is Initiating the Licensing Action, Our Request for Exemption from Emergency Planning Requirements Is Not Voluntary The NRC has apparently concluded that since Maine Yankee requested an exemption from NRC regulations, the Backfit Rule does not apply because the request is voluntary. While it is true that Maine Yankee has requested the licensing action, Maine Yankee was compelled to do so for two reasons: 1) internal conflicts in regulations, and 2) the impossibility of decommissioning a nuclear facility without exemption from current regulations.
As an example ofintemal conflict in regulations, Maine Yankee is required by 10 CFR 50 Appendix E Section IV.F.2.b to conduct a biennial exercise involving principal functional areas of emergency response that would only be necessary if the fuel were recently operated in the reactor; however,10 CFR 50.82(a)(2) specifically prohibits placement or retention of fuel into the reactor and operation of the reactor. It is evident in this example that there is no scenario which can be constructed to f
adequately exercise the principal functional areas of emergency response without having fuel recently operated in the reactor. Therefore, Maine Yankee's requested exemption is submitted to enable Maine Yankee to comply with NRC's conflicting regulations. Since compliance to NRC
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regulations has never been optional, Maine Yankee's request for exemption from NRC emergency j
planning requirements is neither voluntary nor discretionary. It should also be noted that FEMA, which is required to participate in the planning, conduct, and evaluation of biennial exercises, has neither budgeted nor planned for participation in a Maine Yankee biennial exercise in 1998.
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l There is another more subtle but broader conflict in the regulations for decommissioning plants that goes directly to the necessity, not only for exemptions in the emergency planning area, but for exemptions in other areas as well.
Although obvious, it bears emphasizing that the staffing levels during decommissioning will be significantly less than when the plant was operating. Staffing levels are largely driven by regulatory requirements - primarily those requirements associated with the Emergency Plan, the Security Plan and the QA Program. Staffing levels are also a major component in decommissioning cost estimates.
The Commission requires that decommissioning costs be bounded and comparable to generic cost estimates. In fact, licensees cannot conduct decommissioning activities such that "..there is no longer... reasonable assurance that adequate funds will be available for decommissioning" (10CFR50.82(a)(5)(iii). Without reculatory relief from those requirements that drive staffine levels (e.g., Maine Yankee must retain on the order of 100 trained personnel to adequately staff the on-site emergency response capability designed for an operating reactor plant; minimum security staff total on the order of 80 positions, absent security exemptions) Maine Yankee cannot meet these j
requirements. Thus, to avoid non-compliance, Maine Yankee must pursue emergency planning, and other, exemptions.
The Commission has already recognized that, as a practical matter, decommissioning cannot be 1
completed without rulemaking changes or granting exemptions to regulations. In the statements of f
consideration in the Final Decommissioning Rule (61FR39287), the NRC states that "the modifications to the technical requirements in the final rule are incomplete, as noted in the proposed rule, and as the information base continues to develop, additional rulemaking actions to modify other requirements will be conducted. In the interim, licensees that no longer have fuel onsite may continue to request exemption for specific requirements on a case-by-case basis."
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l In SECY-97-120 (Reference (e)) the staff stated that rulemaking is needed to provide consistency within the regulations and reduced fmancial burden for permanently shutdown power plant licensees.
The staff also stated that exemptions to the current emergency preparedness requirements are typically requested and granted; the staff 's rulemaking plan for emergency preparedness is intended to eliminate the continued use of exemptions and establish appropriate emergency planning j
requirements for permanently shutdown plant sites.
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NRC has a number of rulemaking plans to correct deficiencies in the regulations for deconunissioning plants, including emergency planning requirements. These changes are necessary i
because the Commission explicitly recognizes that it is impossible to decommission a facility without exemption to the current regulations. Given regulations that are conflicting and not possible to meet in conducting a decommissioning, it is hardly credible for the staff to claim that exemption requests by a licensee are voluntary and, by inference, no longer are afforded the protection of the Backfit Rule.
3.
Maine Yankee Can Not Simply Choose to Retain its Existing Emergency Preparedness Program in Conformance with Applicable Commission Requirements.
As noted above, Maine Yankee can not simply choose to retain its existing emergency preparedness program in conformance with applicable Commission requirements since doing so would result in unrealistic emergen'cy planning practices, and inability to meet the funding requirements for decommissioning. It would be irresponsible for a licensee to do so, and it should be inappropriate for the staff to suggest.
4.
The NRC's determination to grant the exemption is not discretionary.
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As noted above, in the statements ofconsideration in the Final Decommissioning Rule (61FR39287),
I the NRC states that "the modifications to the technical requirements in the final rule are incomplete, as noted in the proposed rule, and as the infonnation base continues to develop, additior.al rulemaking actions io modify other requirements will be conducted. In the interim, licensees that no longer have fuel onsite may continue to request exemption for specific requirements on a case-by-case basis." Later, on the same FR page, in commenting on 10CFR50.47, the NRC states that
" Modifications to this requirement, if made, will be developed at a later time." The NRC has not addressed modifications to the emergency planning requirements and thereby has ignored the regulatory conflicts that exist for licensees who have certified under 10 CFR 50.82(a)(1). By not changing the emergency planning requirements, NRC must concede their responsibility to deal with this regulation by exemption. NRC's determination to act on the exemption is not discretionary but a necessity to allow decommissioning to proceed.
j 5.
There Is No Reason For the NRC Staff to Create New "Backfit - Type" Criteria.
In denying the backfit request, the staff noted:
" Granting the exemption contingent upon meeting new requirements would not be considered backfitting so long as (i) there is a rational basis for the new requirements, and (ii) there is a reaanable nexus between the new requirements and the subject matter of the exemption."
With this exchange the staff appears to be creating new backfit criteria for cases where the Backfit Rule'is determined to not apply. Why?
One answer might be that existing backfit criteria did not produce the desired answer for resolution of Generic Issue 82.' NUREG-1353 concluded "the backfit criteria (10CFR50.109) that (1) a substantial increase in the overall protection of the public health and safety is achieved, and (2) the direct and indirect costs ofimplementation arejustified are not met. and Altemative 1 'No Action' is recommended for the resolution of GI-82."(Emphasis added.) This NUREG concluded that there y
is neither a substantial increase in the overall protection of the public health and safety, nor are the l
direct and indirect costs ofimplementation justified.
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- As previously stated, the backfit rule provides a stmetured and disciplined process governing the establishment ofnew staff positions. NUREG-1409 (Backfitting Guidelines), NRC Manual Chapter 0514 (NRC Program for Management ofPlant-Specific Backfitting of Nuclear Power Plants), and NUREG/BR-0184'(Regulatory Analysis Technical Evaluation Handbook) are examples of the extensive guidance provided for application of the Backfit Rule. Key elements include analysis and documentation. A regulatory analysis is a stmetured evaluation of all relevant factors associated with the making of a regulatory decision (Reference (f)). A substantial part of the regulatory analysis is the value-impact (benefit-cost) analysis which balances the benefits and costs associated with a proposed action or decision. Benefits and costs are determined consistent with structured guidance and are not merely subjective personal opinion. When this process is followed and documented, a licensee has the opportunity to understand the basis for the proposed new NRC position, and can p$se attematives which would continue to protect the public health and safety.
The staff's alternative criteria (i.e. rational basis and reasonable nexus), applied in lieu of the backfit rule criteria, do not enstire a disciplined process or the balance of benefits and costs.
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ADDITIONAL BASIS:
Maine Yankee Is Only Requesting That Which NRC Has Approved for Other Plants in the J
Same Situation l
Maine 'r ankee's request for exemption from emergency planning requirements is not a unique licensing and regulatory request without precedent. Contrary to the NRC statement in Reference (d) that "the (spent fuel heatup) analysis is a relevant and determining factor in the staff's review whether to grant the exemption," the NRC approved similar requests for exemption for Rancho Seco and Yankee Rowe. NRC is not consistently applying the same criteria in its regulatory decision making. If the NRC believes that the addition of the spent fuel heatup analysis is now required as part of the process of transitioning emergency plannmg requirements from the operational phase of nuclear power to the decommissioning phase, then the NRC should follow its process for making new rules or regulatory staff positions, including the Backfit Rule.
The Nuclear Regulatory Com uission Has a Disciplined Process for Evaluating Regulatory l
Changes Which Was Developed and Codified for This Kind of Situation.
I The backfit process, as described in 10CFR50.109 is a disciplined process that does take resources.
Certainly there is judgment in what is or is not a backfit. In this case a backfit is claimed because of the NRC's intention to use acceptance criteria and to take positions more stringent than those previously accepted in the Maine Yankee license basis. The intent of the backfit process is to i
preserve adequate protection to the health and safety of the public and evaluate substantial increases I
in the overall protection of the public health and safety against the costs ofimplementation of those increases. Backfit evaluations are done to ensure that new positions aren't just adding cost without
- safety benefit. This process was developed and codified in regulations forjust this kind of situation.
We feel it should be used.
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The Re-opening of Generic Issue 82 With New Staff Positions and Requirements Has Not Been Appropriately Evaluated It appears that some ponion of the staff now disagrees with the resolution and closure of Generic Issue 82 (Beyond Design Basis Accidents in Spent Fuel Pools) in '989. The regulatory analysis l
published in NUREG-1353 showed that there was no cost-effective alternative which, if implemented, would result in a substantial safety improvement. Because of the large inherent safety margins in the design and construction of spent fuel pools, the issue was resolved and no new requirements were established. The staff has now chosen to change the underlying purpose of existing rules (e.g.10CFR50.47,10CFR50.54(q),10CFR50.54(w)] through new staff positions. The envelope ofpostulated accident scenarios (i.e. design basis accidents, beyond-design basis accidents,
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severe accidents) for which nuclear plants must design for and/or have the capability of responding to has been established through regulatory processes. It is theoretically possible to postulate an infinite number oflow risk scenarios not addressed by this envelope. The backfit process must be used to ensure thct appropriate regulatory analyses are performed prior to adding to this envelope.
In this ccse the regulatory analysis concluded "no new requirements." However the staff has now established new mquirements which make the Zircaloy fire an accident scenario for which the emergency plans must be responsive and high levels of insurance must be maintained. The
requirements are being generically applied in a manner which allows no alternative licensee resolution since the existing regulatory analysis concluded no new requirements were needed and no new basis has been documented.
The Backfit Implemented by the Staffis Associated With Interpretation of Scope of Existing Rules.
10CFR50.12 Speci/lc Exemptions states the Commission may grant exemptions from the regulations
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of Part 50 which are authorized by law and will not present an undue risk to the public health and
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safety. Special circumstances must be present. Specific circumstances applicable to our situation
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include:
(2)(i) Application of the regulation in the particular circumstances conflicts with other rules or requirements of the Commission I
(2)(ii) Application of the regulation in the particular circumstances would not serve the underlying purpose of the mie or is not necessary to achieve the underlying pugose of the rule (2)(iii) Compliance would result in undue hardship or other costs that are significantly in excess of those contemplated when the regulation was adopted, or that are significantly in excess of those incurred by others similarly situated When licensees request exemption from certain regulations, modifications or additions may be proposed as alternatives to the existing requirements in order to ensure public health and safety.
These would be voluntary and not subject to the backfit rule. However in this case, the staff's new position is an interpretation of the underlying purpose of the existing rules (e.g.10CFR50.47, 10CFR50.54(q),10CFR50.54(w),10CFR50 Appendix E]. The new resolution of the Zircaloy fire generic issue has been improperly incorporated by the staffinto existing regulatory requirements.
If the staffis allowed to change existing regulatory requirements without following the backfit process (i.e. continually changing undocumented ' underlying purpose' of rules without regulatory analysisjustification),10CFR50.12 becomes an unworkable process.
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CONCLUSION We believe the above provides sufficient basis to demonstrate that Maine Yankee does have valid expectations protected by the Backfit Rule. We have pointed out where we believe the NRC denial
' is fundamentally incorrect. In particular, we've noted the conflictig nature of the regulations for decommissioning plants, the impossibility of decommissioning wknout exemption, and our belief that the NRC has a regulatory responsibility to provide time!y exemption approvals to support decommissioning.' We believe it is in the interest of NRC and industry to follow the disciplined,
' defendable and documented process prescribed in the Backfit Rule because it takes into account all relevant aspects of safety, compliance and cost effectiveness.
Finally, as noted in the cover letter, we request a "back to basics" look at the intent of the Backfit Rule. For a licensee that is caught between conflicting regulatory requirements, where non-compliance is inevitable without regulatory relief, it's hard to imagine a situation mere relevant to l
the Backfit Rule and the protection it is intended to provide. We request the Executive Director for Operations to carefully reexamine our claims and appeal basis and to direct the NRC staff to evaluate l
this backfit under the provisions of 10CFR50.109, and, in the interim issue approval for the l
requested exemptions.
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q REFERENCES (a)
License No. DPR-36 (Docket No. 50-309)
'(b)
Letter to USNRC from MYAPCo, Defueled Emergency Plan and 10CFR50.54(q),
Exemption Request, dated November 6,1997 (MN-98-119)
(c)
Letter to USNRC from MYAPCo, Claim of Backfit " Generic Issue 82, Beyond Design Basis Accidents in Spent Fuel Pools", dated Febmary 17,-1998 (MN-98-11)
(d)
Letter to MYAPCo from USNRC, Determination Conceming Maine Yankee Atomic Power Company Claim of Backfit Regarding Beyond Design Basis Accidents in Spent Fuel Pools, dated April 21,1,998.
(e)
SECY-97-120, Rulemaking Plan for Emergency Planning Requirements for Permanently Shutdown Nuclear Power Plant Sites 10CFR 50.54(q) and (t); 10CFR50.47; and 10CFR50 Appendix E (f)
NUREG/BR-0184, USNRC Regulatory Analysis Technical Evaluation Handbook, Final Report, January 1997 l
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