ML20249C723

Discusses Appeal of NRC Determination Re Myap Claim of Backfit Concerning Beyond Design Basis Accidents in SFPs

ML20249C723
Person / Time
Site:	Maine Yankee
Issue date:	06/25/1998
From:	Callan L NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
To:	Meisner M Maine Yankee
References
NUDOCS 9807010093
Download: ML20249C723 (7)

Text

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g ym & UNITED STATES g uy s* j NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555M1

'+9 . . . . . ,o June 25, 1998 l

t Mr. Michael J. Meisner, President Maine Yankee Atomic Power Company P.O. Box 408 Wiscasset, Maine 04578

SUBJECT:

APPEAL OF NRC DETERMINATION CONCERNING MAINE YANKEE ATOMIC POWER COMPANY CLAIM OF BACKFIT REGARDING BEYOND DESIGN BASIS ACCIDENTS IN SPENT FUEL POOLS

Dear Mr. Meisner:

In a letter to me dated May 6,1998, you appealed the U.S. Nuclear Regulatory Commission (NRC) staff's determination regarding a February 17,1998, backfit claim made by Maine Yankee Atomic Power Company (MYAPCo) in accordance with 10 CFR 50.109. By letter dated April 21,1998, Jack Roe, Acting Director, Division of Reactor Program Management, Office of Nuclear Reactor Regulation (NRR), informed you that the criteria being used by the staff in evaluating the Maine Yankee request for relief from offsite emergency preparedness requirements of 10 CFR 50.54(q) are appropriate and did not constitute a backfit.

I have reviewed the staff's decision of April 21,1998, as well as your appeal of that decision. Because your appeal applies to the NRR program area of responsibility and the Director of NRR was not the determining official in your backfit claim, I believe that MYAPCo has not exhausted all avenues with NRR on this matter. Therefore, I have requested that the Director of NRR form a backfit review panel, consisting of senior managers from NRR and the Office for Analysis and Evaluation of Operational Data (AEOD) who were not involved in the initial backfit determination, to review your appeal. The panel will report to the Director of NRR. You will be given an opportunity to present the basis for your appeal to the review panel. The NRR staff will contact you shortly to provide you with a schedule for the review process and to arrange the meeting at which you may present the basis for your appeal.

I Upon completion of its review, the panel will make its recommendation regarding the backfit appeal to the Director of NRR. Upon reaching a decision on your appeal, the NRR  ;

Director will brief me and inform you in writing of his decision and the basis for it. If you remain dissatisfied with NRR's decision regarding your appeal, l invite you to again appeal the decision directly to me. r 9 g{

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I' Mr. Michael J. Meisner If you have any questions or concerns on how the backfit review panel process is proceeding, please don't hesitate to call Sam Collins or me directly.

Sincerely, I l

l L. J gsph Callan l

Executive Director l for Operations t

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Docket No. 50-309 cc: See next page. i L

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Maine Yankee Atomic Power Station l cc: Docket No. 50-309 l

Mr. Charles B. Brinkman Manager - Washington Nuclear Operations Friends of the Coast ABB Combustion Engineering P.O. Box 98 12300 Twinbrook Parkway, Suite 330 Edgecomb, ME 04556 Rockville, MD 20852 Mr. William O' Dell Thomas G. Dignan, Jr., Esquire Operations Director Ropes & Gray Maine Yankee Atomic Power Company One international Place P.O. Box 408 Boston, MA 02110-2624 Wiscasset, ME 04578

'Mr. Uldis Vanags Mr. George Zinke, Director State Nuclear Safety Advisor Nuclear Safety and Regulatory Affairs State Planning Office Maine Yankee Atomic Power Company State House Station #38 P.O. Box 408 Augusta, ME 04333 Wiscasset, ME 04578 Mr. P. L. Anderson, Project Manager Mr. Jonathan M. Block

. Yankee Atomic Electric Company Attorney at Law 580 Main Street P.O. Box 566 Bolton, MA 01740-1398 Putney, VT 05346-0566 Regional Administrator, Region 1. Mr. Michael J. Meisner, President U.S. Nuclear Regulatory Commission Main Yankee Atomic Power Company 475 Allendale Road P.O. Box 408 King of Prussia, PA - 19406 Wiscasset, ME 04578 First Selectman of Wiscasset . Mr. Robert Fraser, Director Municipal Building Engineering U.S Route 1 Maine Yankee Atomic Power Company Wiscasset, ME 04578 P.O. Box 408 Wiscasset, ME 04578 Mr. Richard Rasmussen Senior Resident inspector Mr. Patrick J. Dostie Maine Yankee Atomic Power Company State of Maine Nuclear Safety U.S. Nuclear Regulatory Commission inspector P.O. Box E Maine Yankee Atomic Power Company l

Wiscasset, ME 04578 ~ P.O. Box 408 Wiscasset, ME 04578 Mary Ann Lynch, Esquire--

Maine Yankee Atomic Power Company Mr. Mark Ferri

- P.O. Box 408 Decommissioning Director Wiscasset, ME 04578 Maine Yankee Atomic Power Company P.O. Box 408 Wiscasset, ME 04578 I

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Mr. Mich::1 J. Maisn:r .

if you have any questions or concerns on how the backfit review panel process is

( proceeding, please don't hesitate to call Sam Collins or me directly.

Sincerely,

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L Joseph 0dm l L. Joseph Callan Executive Director l

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lur. Michael J. Meisner . . .

appeal the decision directly to me. If you have any questions on this ba fit claim or on how the backfit review panel process is proceeding, please contact N d Director Sam Collins or me directly.

Sincerely, L. Joseph Callan Executive Dire or for Operati s Docket No. 50-309 cc: See next page DISTRIBUTION:

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. Mr. Mich:ct J. M:isn:r, Pr:sid!:nt Mrina Ycnkes Atomic Pow r Comp:ny

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- P.O. Box 408 i Wiscasset, Maine 04578 l

SUBJECT:

APPEAL OF NRC'S DETERMINATION CONCERNING MAINE YANKEE ATOMIC POWER COMPANY'S CLAIM OF BACKFIT REGARDING BEYOND DESIGN-BASIS ACCIDENTS IN SPENT FUEL POOLS

Dear Mr. Meisner:

In a letter dated May 6,1998, Maine Yankee Atomic Power Company (MYAPCo) appealed to me the U.S. Nuclear Regulatory Commission (NRC) staff's determination regarding your backfit claim of February 17,1998, under 10 CFR 50.109. By letter dated April 21,1998, i Jack Roe, Acting Director, Division of Reactor Program Management, Office of Nuclear Reactor Regulation (NRR) informed MYAPCo that the criteria used by the staff in evaluating '

MYAPCo's request for relief from offsite emergency preparedness (EP) requirements of 10 CFR 50.54(q) are appropriate and did not constitute a backfit. In the April 21 letter, the NRC staff also addressed the specific issue of the applicability of the backfit rule to your EP exemption request but not the more generalissue of the applicability of the backfit rule to plants undergoing decommissioning. Following a review of the history of the backfit rule and the latest decommissioning regulations, it appears that the Commission did not explicitly consider the applicability of the backfit rule to decommissioning reactors.

Therefore, the staff will raise to the Commission the matter of how the provisions of the backfit rule apply to permanently shutdown power plants.

Because your appeal applies to the NRR program area of responsibility, I have requested that the Director of NRR respond to your appeal. A backfit review panel to review your appeal has been appointed. The NRR staff will contact you shortly to arrange a meeting at which you may present your position to the review panel. If you find the NRR response does not adequately address your concerns, you may appeal to me.

If you have any questions regarding this matter, please contact Michael Webb of my staff at 301-415-1347.

Sincerely, L. Joseph Callan Exec tive Director perations Docket No. 50-309 g WIN O I

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APPEAL OF NRC DETERMINATION CONCERNING MAINE Callan YANKEE ATOMIC POWER COMPANY CLAIM OF BACKFIT Thadani-REGARDING BEYOND DESIGN BASIS ACCIDENTS IN SPENT Thompson FUEL POOLS (GENERIC ISSUE 82) Norry -

Blaha Burns

DATE: 05/08/98 Miller, RI Martin, AEOD iASSIGNED TO: CONTACT: Cyr, OGC l NRR Collins

SPECIAL INSTRUCTIONS OR REMARKS:

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MaineYankee RO. BOX 408

• WISCASSET. MAINE 04578 -(207) 882 6321 May 6,1998 MN-98-38 MJM-98-34 Mr. Leonard J. Callan Executive Director for Operations )

U.S. Nuclear Regulatory Commission j 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 Concerning Maine Yankee Atomic Power Company Claim of Backfit Regarding Beyond Design Basis Accidents in Spent Fuel Pools, dated April 21,1998.

Subject:

Appeal of NRC Determination Concerning Maine Yankee Atomic Power Company j 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 pennanently 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 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 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 enteria is problematic due to their incomplete nature and questionable benefit.

\

l l

i U.S. Nuclear Regulatory Commission MN-98-38 Attn: Mr. Leonard J. Callan Page Two j I

In addition, it now appears that the NRC also intends to require Maine Yankee to secure successful NRC-sponsored analysis results for these new criteria. Notwithstanding our claim of backfit, Maine Yankee did conduct a spent fuel heatup analysis and determined that this scenario is not postible 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 appropriate licensee-sponsored analysis but also to provide the NRC with information, support and assistance, as i I

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 staffs 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 l 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 l broader message that has been sent by a history of backfit denials, 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 unsupported, 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 you to direct the staff to complete the review and issue approval of Reference (b) without further intemtption or delay.

L______._

1 1 =

i 1

U.S. Nuclear Regulatory Commission MN-98-38 l

Attn: Mr. Leonard J. Callan Page Two 4

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 L generic backfit without CRGR or EDO review,2) the staff's backfit denial raises generic issues j 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.

l 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 i

l 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 i 10CFR50.82(a) certified plants.

If you have any questions, please feel free to contact me or George Zinke.

Ve trul rs, 1

1

! I i

I' i ael J . Meisner, President L . aine Y akee I

c: Document Control Desk Mr. Samuel Collins Mr. Hubert Miller 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

1 BASIS FOR APPEAL OF NRC DETERMINATION CONCERNING MAINE YANKEE ATOMIC POWER COMPANY CLAIM OF BACKFIT REGARDING BEYOND DESIGN BASIS ACCIDENTS IN SPENT FUEL POOLS l

l BACKGROUND By letter dated April 21,1998, NRR detennined 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 l 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 iii 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 regturements (namely the spent fuel heatup analysis) and (ii) there is a reasonable nexus between the new requirements and the subject matter of the exemptions."

Punuant to NRC Manual Chapter 0514, "If the determination 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.

Maine Yankee disagrees with the NRC determination. In the discussion below, Maine Yankee presents its reasons for disagreeing with the NRC determination and its basis. These reasons fomt the support for Maine Yankee's appeal of this determination.

. DISCUSSION

1. Maine Yankee Does Have a Valid Expectation Protected by the Backfit Rule 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 of initial licensing are not arbitrarily changed post hoc by the Commission.

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 regulations."

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 obtaining the new authority") in making the change. On the other hand, 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 staffpositions ("the terms and conditions for obtaining the new authority")

and introduce new requirements at will.

This position raises generic concems, 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 staff's 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 - arbitrazy, 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 concems updates to the Standard Review Plan (SRP): l l

" Application of an SRP to an operating plant after the license is granted generally l is considered a backfit.. Such changes that are clearly advances in design or l operation may involve 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 l

regulations. Licensee-oronosed revisions in desien or coeration 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 FS AR for the initial license issuance.

' 50.12 does allow the Commission to issue exemptions on their own initiative.

i l =

During reload reviews, staff-orocosed cositions with regard to technical matters not related to the channes orocosed bv a licensee shall be considered backfits."

(Emphasis added.]

l Until the NRC's response to Maine Yankee's backfit claim, the question of which pany initiated an activity was irrelevant as far as Backfit Rule applicability - as well it should be. Just as a licensee l

is required to comply with regulations, so should the NRC. To do otherwise will result in a significant disruption of routine change mechanisms that, over the years, have included the protection of the Backfit Rule.

More generally, when a licensee requests an exemption or a technical specification change, it is I

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 rules are defined during the licensing process. It is a valid licensee expectation that the staff positions with regard to Commission rules will not change without due tvx-ss (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 ponion of their underlying purpose. Our reviews of the Maine j Yankee license basis indicate that no regulatory position conceming Zircaloy fire analysis has i 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 l

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) intemal 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 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 regulations has never been optional, Maine Yankee's request for exemption from NRC emergency 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 L neither budgeted nor planned for participation in a Maine Yankee biennial exercise in 1998.

/

/

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 ol vious, it bears emphasizing that the staffing levels during decommissioning will be significantly less than when the plant was operating. Staffing levels are largely dnven by regulatory requirements - primarily those requirements associated with the Emergency Plan, the Security Plan arid 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 staffing 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 requirements. Thus, to avoid non-compliance, Maine Yankee must pursue emergency planning, and other, exemptions.

The Commission has already recegnized that, as a practical matter, decommissioning cannot be completed without rulemaking changes or granting exemptions to regulations. In the statements of 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."

In SECY-97-120 (Reference (e)) the staff stated that rulemaking is needed to provide consistency within the regulations and reduced financial 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 miemaking plan for emergency preparedness is intended to eliminate the continued use of exemptions and establish appropriate emergency planning requirements for permanent'y shutdown plant sites.

NRC has a number of rulemaking plans to correct deficiencies in the regulations for decommissioning plants, including emergency planning requirements. These changes are necessary bec.:use 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 me.et in conductmg 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.

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3. Maine Yankee Can Not Simply Choose to Retain its Existing Emergency Preparedness l Program in Conformance with Applicable Commiss. ion Requirements.

l 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 emergency 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.

As noted above, in the statements ofconsideration in the Final Decommissioning Rule (61 FR39287),

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 mlemaking 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." Later, on the same FR page, m 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.

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 seguirements, and (ii) there is a reasonable nexus between the new requirements and the subject matter of the exemption."

With this exchange the staff appears to l>e 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 are justified are not met, and Attemative 1 'No Action' is recommended for the resolution of GI-82."(Emphasis added.) This NUREG concluded that there is neither a substantial increase in the overall protection of the public health and safety, nor are the direct and indirect costs ofimplementation justified.

As previously stated, the backfit rule provides a structured and disciplined process governing the establishment of new staff positions. NUREG-1409 (Backfitting Guidelines), NRC Manual Chapter 0514 (NRC Program for Management of Plant-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 structured evaluation of all relevant factors associated with the making of a regulatory decision (Reference (f)). A substantial pan of the regulatory analysis is the value-impact (benefit-cost) analysis which balances the benefits and costs associated with a t 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 pro %se alternatives which would continue to protect the public health and safety.

The staff's attemative criteria (i.e. rational basis and reasonable nexus), applied in lieu of the backfit rule criteria, do not ensdre a disciplined process or the balance of benefits and costs.

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i L . j ADDITIONAL BASIS: .

1 l Maine Yankee Is Only Requesting That Which NRC Has Approved for Other Plants in the Same Situation Maine Yankee'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 l 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 I making. If the NRC believes that the addition of the spent fuel heatup analysis is now required as l- 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. j The Nuclear Regulatory Commission Has a Disciplined Process for Evaluating Regulatory Changes which Was Developed and Codified for This Kind of Situation.

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 'l of the NRC's intention to use acceptance criteria and to take positions more stringent than those l previously acceptext 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 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'tjust adding cost without l ' safety benefit. This process was developed and codified in regulations forjust this kind of situation.

) We feel it should.be used.  ;

1 The Re-opening of Generic Issue 82 With New Staff Positions and Requirements Has Not Been Appropriately Evaluated It appears that some portion of the staff now disagrees with the resolution and closure of Generic Issue 82 (Beycnd Design Basis Accidents in Spent Fuel Pools) in 1989. The regulatory analysis published in NUREG-1353 showed that there was no cost-effective attemative which, if l 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 l i

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 of postulated accident scenarios (i.e. design basis accidents, beyond-design basis accidents, l 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 that appropriate regulatory analyses are performed prior to adding to this envelope. l In this case the regulatory analysis concluded "no new requirements." However the staff has now established new requirements which make the Zircaloy fire an accident scenario for which the j emergency plans must be responsive and high levels of insurance must be maintained. The l l

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l I requirements are being generically applied in a manner which allows no attemative licensee l resolution since the existing regulatory analysis concluded no new requirements were needed and I

no new basis has been documented.

The Backfit Implemented by the Staffis Associated With Interpretation of Scope of Existing Rules.

10CFR50.12 Specific Exemptions states the Commission may grant exemptions from the regulations of Part 50 which are authorized by law and will not present an undue risk to the public health and safety. Special circumstances must be present. Specific circumstances applicable to our situation include:

(2)(i) Application of the regulation in the panicular circumstances conflicts with other rules or requirements of the Commission (2)(ii) Application of the regulation in the particular circumstances would not serve the underlying purpose of the rule or is not necessary to achieve the underlying purpose of the mie l

(2)(iii) Compliance would result in undue hardship or other costs that are significantly in l excess of those contemplated when the regulation was adopted, or that are significantly in excess of those incurred by others similarly situated l

. When licensees request exemption from certain regulations, modifications or additions may be l 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 analysis justification),10CFR50.12 becomes an unworkable process.

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4 CONCLUSION .

- We believe the above provides sufficient basis to demonstrate that Maine Yankee does have valid expectations protected by the Backfit Rule. We hve pointed out where we believe the NRC denial is fundamentally incorrect. In particular, vrtve noted the conflicting nature of the regulations for decommissioning plants, the impossibility of decommissioning without exemption, and our belief that the NRC has a regulatory responsibility to provide timely exemption approvals to support decommissioning. We believe it is in the interest of NRC and industry to follow the disciplined, defendable ara 1 documented process prescribed in the Backfit Rule because it takes into account all atlevant 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 more relevant to

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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 this backfit under the provisions of 10CFR50.109, and, in the interim issue approval for the requested exemptions.

e 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 Concerning 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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