ML20247C684
| ML20247C684 | |
| Person / Time | |
|---|---|
| Site: | Maine Yankee |
| Issue date: | 05/06/1998 |
| From: | Meisner M Maine Yankee |
| To: | Callan L NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| References | |
| MJM-98-34, MN-98-38, NUDOCS 9805140045 | |
| Download: ML20247C684 (13) | |
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t MaineYankee P.O. Box 408 + WISCASSET, MAINE 04s78 -(207) 882 6321 l
May 6,1998 MN-98-38 MJM-98-34 Mr. Leonard J. Callan Executive Director for Operations 1 U.S. Nuclear Regulatory Commission Washington, DC 20555 i
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 Backfit Regarding Beyond Design Basis Accidents in Spent Fuel Pools, dated April 21,1998.
Subject:
Appeal of NRC Determination Conceming Maine Yankee Atomic Power 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 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 i
I being applied. These criteria did not fonn the basis for any portion 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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9805140045 990506.
PDR ADOCK 05000309:
F PDR
U.S. Nuclear Regulatory Commission . MN-98 38 Attn: Mr. Leonard J. Callan Page Two l
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 ofbackfit, Maine Yankee did conduct a spent fuel heatup analysis and detennined 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 appropriate licensee-spon'sored analysis but also to provide the NRC with infonnation, 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 j 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 i 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 funher interruption or delay.
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- U.S, Nuclear R.:gulatory 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 backfit 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 cenifications in accordance with 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 10CFR50.82(a) certified plants.
If you have any questions, please feel free to contact me or George Zinke.
Ve truly rs.
i ael .l. Meisner, President l aine Y akee i
l L l c: Document Control Desk Mr. Samuel Collins .
Mr. Hubert Miller Mr. Michael Webb Mr. Michael Masnik :
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i Mr. Ron Bellamy Mr. R. A. Rasmussen Mr. Clough Toppan Mr. Patrick J. Dostie Mr. Uldis Vanags Mr. Lawrence J. Chandler i
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BASIS FOR APPEAL OF NRC DETERMINATION CONCERNING MAINE YANKEE ATOMIC POWER COMPANY CLAIM OF BACKFIT REGARDING BEYOND DESIGN l BASIS ACCIDENTS IN SPENT FUEL POOLS 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 N'RC) 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 in confonnance with applicable Commission requirements, (4) the hTC'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 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 form the support for Maine Yankee's appeal of this determination.
DISCUSSION
- 1. Maine Yankee Does IIave a Valid Expectation Protected by the Backfit Rule The NRC staff makes the following point (Reference (d))
l l "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."
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 j 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 staff positions ("the tenns and conditions for obtaining the new authonty")
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 dismption of multiple regulatory change processes.
With respect to the staff's conclusion on backfit rule applicability, there is nothing unique about exemption rquests. 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.). Re;ardless, 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 tecimical 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 pttspect. 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 thst are clearly advances in design or operation may involve new or unreviewed safety issues, and may warrant review to SRP criteria which were approved subsequent to initial license issu:.nce 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-cronosed 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.
8 50.12 does allow the Comntission to issue exemptions on their own initiative.
During reload reviews, staff-orocosed oositions with regard to technical . natters rtat related to the changes crocosed hv a licensee shall be considered backfits."
[ Emphasis added.]
Until the NRC's response to Maine Yankee's ba.:kfit claim, the question of which party initiated an activity was irrelevant 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 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 requesting the Commission to follow a process defined in the regulations. Rules have defined pugoses established at the point in time a rule is effective. Likewise, staff positions integrating 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 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 concerning 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) 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 i enable Maine Yankee to comply with NRC's conflicting regulations. Since compliance to NRC l' 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 neither budgeted nor planned for participation in a Maine Yankee biennial exercise in 1998.
im m 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 reculatorv 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 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 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 rulemaking plan for emergency preparedness is intended to eliminate the continued use of exemptions and establish appropriate emergency planning requirements for permanently 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 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. l
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, 3. - Maine Yankee Can Not Simply Choose to Retain its Existing Emergency Preparedness I
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 emergency planning practices, and inability to meet the funding requirements for i decommissioning. It would be irresponsible for a licensee to do so, and it should be inappropriate for the staff to suggest.
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- 4. The NRC's determination to grant the exemption is not discretionary.
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l As noted above, in the statements ofconsideration in the Final Decommissioning Rule (61 FR39287),
i the NRC states that "the modifications to the technical requiremems in the final mie 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 l 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 I this regulation by exemption. NRC's determination to act on the exemption is not discretionary but i
a necessity to allow decommissioning to proceed.
- 5. There Is No Reason For the NRC Staff to Create New " Backlit - Type" Criteria.
l In denying the backfit request, the staff noted: l l
[ " 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 l
l requirements, and (ii) there is a reasonable nexus between the new requirements ;
and the subject matter of the exemption." !
l With this exchange the staff appears to be creating new backfit criteria for cases where the Backfit Rule is detennined to not apply. Why? ;
- One answer might be that existing backfit criteria did not produce the desired answer for resolution l 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 is neither a substantial increase in the overall protection of the public health and safety, nor are the direct and indirect costs ofimplementationj 2stified.
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As previously stated, the backfit rule provides a structured and disciplined process goveming the j 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 I 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 pmposed action or decision. Benefits and costs are determmed 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 attematives 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 i rule criteria, do not ensdre a disciplined process or the balance of benefits and costs.
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l ADDITIONAL BASIS:
Maine Yankee is Only Requesting That Which NRC Has Approved for Other Plants in the Same Situation 4
Maine Yankee's request for exemption from emergency planning requirements is not a umque i licensing and regulatory request without precedent. Contrary to the NRC statement in Reference (d) l 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 I 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 i new rules or regulatory staff positions, including the Backfit Rule.
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. l 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 l previously accepted in the Maine Yankee license basis. The intent of the backfit process is to !
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'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.
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 (Beyond Design Basis Accidents in Spent Fuel Pools) in 1989. The regulatory analysis 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, severe accidents) for which nuclear plants must design for and/or have the capability of responding I
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.
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 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 altemative licensee resolution sinec 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 Specific Exemptions states the Commission may grant exemptions from the regulations of Pan 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 mies i
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 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 mle. However in this case, the staff's new position ir, 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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CONCLUSION .
l 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 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 and documented pmcess prescribed in the Backfit Rule because it takes into accotmt 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 more relevant to 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.
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REFERENCES .
(a) License No. DPR-36 (Docket No. 50 309) l (b) Letter to USNRC from MYAPCo, Defueled Emergency Plan and 10CFR50.54(q),
Exemption Request, dated November 6,1997 (MN-98-119) l (c) Letter to USNRC from MYAPCo, Claim of Backfit " Generic Issue 82, Beyond Design j Basis Accidents in Spent Fuel Pools", dated February 17,'1998 (MN-98-11)
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i (d) _ Letter to MYAPCo from USNRC, Determination Conceming Maine Yankee Atomic Power l Company Claim of Backfit Regarding Beyond Design Basis Accidents in Spent Fuel Pools, i 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 1
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