ML20205G743

Documents 990224 Telcon During Which Issues Raised in to NRC Were Discussed.Issues Discussed Re Appeal of Director'S Decision on Claim of Backfit Re Beyond DBA in SFPs

ML20205G743
Person / Time
Site:	Maine Yankee
Issue date:	03/26/1999
From:	Miraglia F NRC (Affiliation Not Assigned)
To:	Meisner M Maine Yankee
References
NUDOCS 9904070369
Download: ML20205G743 (3)

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%*****p March 26, 1999 Mr. Michael J. Meisner, President Maine Yankee Atomic Power Company 321 Old Ferry Road Wiscasset, Maine 04578-4922

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SUBJECT:

DOCUMENTATION OF TELEPHONE CONVERSATION RELATED TO APPEAL OF DIRECTOR'S DECISION ON MAINE YANKEE ATOMIC POWER COMPANY CLAIM OF BACKFIT REGARDING BEYOND DESIGN BASIS ACCIDENTS IN SPENT FUEL POOLS

Dear Mr. Meisner:

The purpose of this letter is to document our telephone conversation of February 24,1999, during which we discussed the issues raised in your December 7,1998 letter to the NRC Executive Director for Operations.

During the call I noted that in reviewing your December 7,1998 letter I identified four specific issues. These included:

1. The NRC did not provide a clear and justified reason of why the backfit rule did not apply to exemptions.

2. The Backfit Review Panel was in close agreement with the Maine Yankee Atomic Power Company (MYAPCo) view and established new policies.

3. MYAPCo disagreed with the staff's basis for the exemption.

4. The status of backfit claims in the area of security have not been provided.

We both agreed that the principal reason for the telephone call was to discuss the issue of the l applicability of the backfit rule to exemption requests. In our discussion the following points l were made regarding the backfit rule and exemptions:

1. The backtJ n a was intended to assure that once the NRC issues a license, the terms l and conditior.s for operating under the license and regulations are not arbitrarily ) '

changed after the fact by the Commission. The backfit rule precludss the staff from , g imposing new or different requirements or interpretations without meeting the specific criteria established by 10 CFR 50.109.

2. An exemption request by a licensee is a request to do what is not currently permitted under its license and applicable regulations and represents a difference from how the 60\

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facility is licensed.

3.

cD010 Since an exemption request is a licensee initiative to do what is not currently permitted under its license and applicable regulations, it therefore does not involve the imposition 904070369 990326 gg gp DR ADOCK 050003 9

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2 March 26, 1999 l of a new requirement by the Commission. Requests for additionalinformation (RAls) associated with exemption requests do not constitute an imposition of new requirements by the staff and are outside the realm of the backfit rule.

4. When considering exemptions the staff has an obligation to satisfy additional I considerations as to why it is acceptable to operate outside of existing regulations.

However,10 CFR 50.54(f) requires the staff to provide a reasonable basis to justify the need fcr the additional information.

During the course of our conversation we also discussed the difference between a claim of backfit as a result of a staff RAI in support of review of a proposed change to Technical Specifications and e. backfit claim as a result of an RAI related to an exemption. I expressed my view that RAls, whether they apply to changes to Technical Specifications or exemptions, do not constitute backfits. Specifically, staff RAls that are required in support of the review of Technical Specification changes or exemptions are not considered an imposition of new requirements or interpretations. Therefore the backfit rule is not applicable to them. It was also noted that, in accordance with 10 CFR 50.54(f), the staff must state the reason as to why the RAI is necessary. If the staff's request is unreasonable and not linked to safety, licensees have recourse through means other than claims against the backfit rule.

With regard to your specific Emergency Preparedness (EP) exemption request submitted on November 6,1997, the following description of events provides the basis as to why the staff l was required to consider the potential for a low probability event involving a zirconium fuel cladding fire during its review. At the time the exemption request was submitted, the staff's practices regarding EP exemptions at permanently shutdown reactors were derived from SECY-93-127, Financial Protection Required of Licensees of Large Nuclear Power Plants During Decommissioning," dated May 10,1993, and its associated Staff Requirements Memorandum (SRM). In SECY-93-127 the staff identified that the zirconium fuel cladding fire was possible for the first two to three years after shutdown for spent fuel stored in certain high density configurations.

The need for offsite EP is based on a spectrum of severe accidents which is not limited to

, design basis events. In the SECY-93-127 SRM, the Commission directed the staff to " allow, after a requisite r.;nimum spent fuel pool cooling period has elapsed, a reduction in the amount of financial protection required" at permanently shutdown facilities. Additionally, the Commission directed the staff to proceed with rulemaking "to determine more precisely the appropriate spent fuel cooling period after plant shut down" beyond which offsite liability insurance coverage could be reduced. The staff initiated the rulemaking effort that included technical support from Brookhaven National Laboratory (BNL). BNL determined that the I existing codes for determining the cooling period after shutdown to preclude a zirconium fire were not sufficient and that a new code must be developed for this specific use. While the code development was ongoing at BNL, the staff proceeded with rulemaking efforts. On June 16,

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

CFR 50.47; and Appendix E to 10 CFR Part 50" to the Commission for review. The l Commission subsequently directed the staff to proceed with the rulemaking plan that proposed the reduction of offsite EP would occur when the spent fuelin the spent fuel poolis no longer susceptible to a zirconium cladding fire. The Commission also endorsed the criteria that the staff had been using since July 1993 for EP exemptions.

3 March 26, 1999 Although your submittal indicated that in the event that the spent fuel pool was drained the l' natural circulation of air was sufficient to preclude a zirconium fuel cladding fire, the staff identified in its review of the submittal modeling errors and inconsistencies. The staff then requested that MYAPCo resolve these questions in three RAls. Although MYAPCo chose not to respond to the latter of the two RAls, the staff continued to review the exemption request.

The staff performed its own conservative simplified heatup analysis in order to ensure that the  !

proposed exemption did not compromise public health and safety in the event of beyond design basis accidents. The criteria the staff utilized were deterministic and the analysis was I consurvative in that it assumed adiabatic heatup of the spent fuel. Since there is neither additional information regarding Maine Yankee nor a generic analyses that could be applied to evaluation of the potential for a zirconium fire, the staff does not have the information necessary to modify its bases for granting the EP exemption. As we discussed during our phone conversation, at the time MYAPCo submitted the EP exemption request, the staff was working te develop specific criteria to be met for justifying this type of exemption; however, this activity had not been completed. As I know you are aware, the topics of EP and Security Plan  ;

exemptions were discussed during the March 17,1999 Commission meeting on 10 CFR Part l 50 decommissioning issues.

With regard to the subject of the Backfit Review Panel's findings, you indicated that in your judgment the findings were in close agreement with the MYAPCo's viewpoint. However, it should be noted that the Backfit Review Panel does not have the authority to establish agency )

policy and that a review is underway to examine the findings to determine the staff's final position on this matter. Once this review is complete the staff intends to make its findings available to the public. I recognize that it is MYAPCo's belief that the staff did not have to rely on the zirconium fire analysis to grant the exemption. To avoid these types of issues in the future, the staff is establishing a working group to undertake a special review of ongoing decommissioning rulemaking activities to ensure that all proposed requirements are consistent with the reduced risk associated with permanently shutdown facilities. This effort is expected to take approximately 2 months, during which an integrated plan for future decommissioning rulemaking will be produced. These efforts willinvolve a public meeting with decommissioning representatives from NEl to solicit industry and public input.

I have reviewed the status of MYAPCo's backfit claims in the area of security. I determined that the staff's February 3,1999 response reiterated the position that the backfit process does not apply to RAls associated with exemption requests, which I believe to be correct. I encourage you to communicate with the staff in this area in order to resolve the issues of concern. As we

. both noted during the course of our conversation shifting the focus of exemption requests to that of a staff imposed backfit has caused both parties to lose sight of the real issues of concem with the exemptions being requested. I also encourage you to work with the staff to provide input on the development of the plan for future decommissioning rulemaking and provide input to the rulemaking activities.

l l l believe that we discussed all of the issues raised in your December 7,19S3 letter to the NRC l Executive Director for Operations. Please inform me if you desire to meet to discuss these issues further.

Sincere ,

Distribution:

EDO R/F SCollins Fran J. Miraglia, Jr.,

DEDR R/F BSheron Deputy Executive Director OGC JGreeves for Regulatory Programs MTschlitz Central Files PDR GTracy g:\meisner.wpd *see previous concurrences ROPMS* C:ROPMS* OGC*

- MDTschiltz GMTracy LJChandler FJ l 3/19 /99 3/19 /99 3/24/99 3/ 9 4

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