EPA-HQ-OAR-2008-0708-DRAFT-0359 ----- Forwarded by Melanie King/RTP/USEPA/US on 02/17/2010 03:31 PM

----- |------------> | From: | |------------>

>--------------------------------------------------------------------------- ---------------------------------------------------------------| |"Crockett, Steven" <Steven.Crockett@nrc.gov> |

>--------------------------------------------------------------------------- ---------------------------------------------------------------| |------------> | To: | |------------>

>--------------------------------------------------------------------------- ---------------------------------------------------------------| |"Higgins, Cortney" <Cortney_Higgins@omb.eop.gov>, RobertJ Wayland/RTP/USEPA/US@EPA, Melanie King/RTP/USEPA/US@EPA, Michael | |Horowitz/DC/USEPA/US@EPA |

>--------------------------------------------------------------------------- ---------------------------------------------------------------| |------------> | Cc: | |------------>

>--------------------------------------------------------------------------- ---------------------------------------------------------------| |"Grahame, Thomas" <Thomas.Grahame@HQ.DOE.GOV>, "Wolfgang, Robert" <Robert.Wolfgang@nrc.gov>, "Lombard, Mark" <Mark.Lombard@nrc.gov>, | |"Imboden, Andy" <Andy.Imboden@nrc.gov>, "Droggitis, Spiros" <Spiros.Droggitis@nrc.gov>, "Suttenberg, Jeremy" <Jeremy.Suttenberg@nrc.gov> |

>--------------------------------------------------------------------------- ---------------------------------------------------------------| |------------> | Date: | |------------>

>--------------------------------------------------------------------------- ---------------------------------------------------------------| |02/07/2010 03:31 PM |

>--------------------------------------------------------------------------- ---------------------------------------------------------------| |------------> | Subject: | |------------>

>--------------------------------------------------------------------------- ---------------------------------------------------------------| |A Correction and Some Further NRC comment. |

>--------------------------------------------------------------------------- ---------------------------------------------------------------|

Page 1EPA-HQ-OAR-2008-0708-DRAFT-0359

I should make a change in the language we recommended be added to page 163, footnote 4 of the draft final rule. I also want to add to what we’ve already said in support of our recommendation, and to what we’ve said about our general stance toward EPA’s draft final rule. At the end of this email I also ask for verification of a point.

I.

Borrowing from pages 148-49 of the draft final, we believe that footnote 4 on page 163 should read as follows (additions are marked thus: >addition<):

“If an emergency engine is operating during an emergency and it is not possible to shut down the engine in order to perform the management practice requirements on the schedule required in the final rule, >or if performing the management practice on the required schedule would otherwise pose an unacceptable risk under federal, state, or local law,< the management practice can be delayed until the emergency is over >or the unacceptable risk has abated<. The management practice should be performed as soon as practicable after the emergency has ended >or the unacceptable risk has abated.<"

The additions we suggested on Friday had used the phrase, “shutting the engine down”, instead of the phrase, “the management practice.” The use of the former phrase came near to making the additions redundant, because it could be argued that shutting an emergency diesel down during an emergency would ordinarily pose an unacceptable risk. The additions we’re now proposing make it clearer that unacceptable risks can arise even when there is no emergency.

The NRC staff would like to emphasize the importance of this point. The key NRC requirement is set forth in paragraph (a)(4) of the NRC's maintenance rule, 10 CFR 50.65, which I quoted in my email on Friday, but which I quote more fully now: "Before performing maintenance activities (including but not limited to surveillance, post-maintenance testing, and corrective and preventive maintenance), the licensee shall assess and manage the increase in risk that may result from the proposed maintenance activities."

Paragraph (a)(3) of the same regulation makes it clear that assessing and managing the risk requires a balancing: “Adjustments shall be made where necessary to ensure that the objective of preventing failures of structures, systems, and components through maintenance is appropriately balanced against the objective of minimizing unavailability of structures, systems, and components due to monitoring or preventive maintenance.”

The importance of the timing of maintenance is emphasized repeatedly in NRC guidance. See for example, page 2 of Regulatory Guide 1.160 (referenced in my earlier email): “Adjustments must be made where necessary to ensure that the objective of preventing failures of SSCs [structures, systems and components] through maintenance is appropriately balanced against the objective of minimizing unavailability of SSCs because of monitoring or preventive

maintenance.” See also page 3 of the principle guidance on assessment and management of maintenance risk, Regulatory Guide 1.182, “Assessing and Managing Risk Before Maintenance at Nuclear Power Plants” (the 2d attachment to this email): “[R]elevant margins of safety could be inadvertently reduced under certain Page 2EPA-HQ-OAR-2008-0708-DRAFT-0359 conditions, for example, if maintenance is performed at power without proper

controls and careful consideration of risk.”

The regulations and guidance are implemented in part through NRC Inspection Procedures. See, for example, page 2 of Attachment 71111.13 to Inspection Procedure 71111 (attached), which directs NRC inspectors to verify the adequacy of risk assessments required to be done before “changes in plant configuration for maintenance activities, including preventive maintenance, surveillance and testing, (and promptly for emergent work) during all modes of plant operation.”

II.

We’ve said that, in accordance with how we participated in the relatively recent interagency discussion of whether EPA’s SPCC rules should apply to underground fuel tanks for emergency diesel generators (EDGs) at nuclear power plants, we’re taking no position here on whether EPA’s final rule on RICE should apply to the EDGs themselves. EPA has said that it has no choice but to apply the RICE rule to those machines. Not knowing what all lies behind that judgment, we note only the following: EPA cannot exempt NRC-regulated facilities from certain EPA rules;

that’s obvious in the case of EPA’s Yucca Mountain Standards. But EPA can sometimes exempt NRC-regulated facilities from an EPA rule, the recent SPCC rule being one example, and EPA’s Clean Air Act 1989 standard on radionuclide emissions being another. See EPA’s rescission of the latter, published at 60 Fed.Reg. 46,206 (1995), and affirmed in Sierra Club v. EPA, 107 F.3d 923 (D.C. Cir. 1996).

III.

Do we understand rightly that the final rule would apply numeric emission limitations, aftertreatment controls, and performance testing requirements to *new* diesels at nuclear power plants? (See attached file: ip7111113.pdf)(See attached file: 003740117.pdf)

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