[Federal Register Volume 64, Number 63 (Friday, April 2, 1999)]
[Notices]
[Pages 16007-16013]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-8164]


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NUCLEAR REGULATORY COMMISSION

Tennessee Valley Authority
[Docket No. 50-259]


Browns Ferry Nuclear Plant, Unit 1; Issuance of Director's 
Decision Under 10 CFR 2.206

    Notice is hereby given that the Director, Office of Nuclear Reactor 
Regulation, has issued a Director's Decision concerning a Petition 
dated April 5, 1998, filed on behalf of the Union of Concerned 
Scientists (Petitioner) by Mr. David A. Lochbaum, pursuant to Title 10 
of the Code of Federal Regulations, Section 2.206 (10 CFR 2.206). The 
Petition requests the U.S. Nuclear Regulatory Commission (NRC) to (1) 
revoke the operating license for Browns Ferry Nuclear Plant, Unit 1; 
(2) require the Tennessee Valley Authority (TVA) to submit either a 
decommissioning plan or a lay-up plan for Unit 1; (3) conduct NRC 
inspections at Browns Ferry Unit 1 against the decommissioning plan or 
the lay-up plan; and (4) hold a hearing in the Washington, DC, area.
    The Director, Office of Nuclear Reactor Regulation, has determined 
to deny in part and grant in part the Petition, for the reasons stated 
in the ``Director's Decision Under 10 CFR 2.206'' (DD-99-06). The 
complete text that follows this notice is available for public 
inspection and copying in the Commission's Public Document Room, the 
Gelman Building, 2210 L Street, NW., Washington, D.C., and at the local 
public document room for the Browns Ferry Nuclear Plant at the Athens 
Public Library, 405 E. South Street, Athens, Alabama 35611.
    A copy of this decision has been filed with the Secretary of the 
Commission for the Commission's review. As provided for by 10 CFR 
2.206(c), the decision will constitute the final action of the 
Commission 25 days after issuance, unless the Commission, on its own 
motion, institutes a review of the decision within that time.

    Dated at Rockville, Maryland, this 29th day of March 1999.
    For the Nuclear Regulatory Commission.
Samuel J. Collins,
Director, Office of Nuclear Reactor Regulation. 9

Director's Decision Pursuant to 10 CFR 2.206 (DD-99-06)

I. Introduction

    On April 5, 1998, Mr. David A. Lochbaum filed a petition 
1, pursuant to Title 10 of the Code of Federal Regulations 
(10 CFR 2.206), on behalf of the Union of Concerned Scientists 
(Petitioner).
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    \1\ The petition can be viewed and downloaded from the NRC World 
Wide Web page (http://www.nrc.gov/NRC/PUBLIC/2206/petitions/g980199/
g980199.html). Copies of the petition also are available for public 
inspection at the Commission's Public Document Room, the Gelman 
Building, 2120 L Street, NW., Washington, DC 20555-0001, and at the 
local public document room located at the Athens Public Library, 
South Street, Athens, Alabama 35611.
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    Petitioner requested the Nuclear Regulatory Commission (NRC) to (1) 
revoke the operating license for Browns Ferry Nuclear Plant, Unit 1; 
(2) require the Tennessee Valley Authority (TVA) to submit either a 
decommissioning plan or a lay-up plan for Unit 1; (3) conduct NRC 
inspections at Browns Ferry Unit 1 against the decommissioning plan or 
the lay-up plan; and (4) hold a hearing in the Washington, DC, area.
    As the basis for the request, Petitioner asserts that because Unit 
1 has been on ``administrative hold'' since June 1, 1985, and has not 
operated since then, revoking the operating license and requiring 
relicensing if TVA later decides to restart Unit 1 is a better and 
safer process than is the current restart process of Inspection Manual 
Chapter (IMC) 0350. Further, a decommissioning plan would provide 
assurance that the irradiated fuel is stored safely and that Units 2 
and 3 are sufficiently independent of Unit 1 for safe operation.
    Petitioner notes that while Unit 1 has been in administrative hold 
status, the NRC has issued numerous bulletins, generic letters, and 
information notices. TVA's typical action in response to these NRC 
communications is to delay addressing the issues until prior to 
returning the unit to service. Petitioner notes a similar response was 
provided by TVA to the NRC's letter of October 9, 1996, which requested 
information pertaining to the adequacy, availability, and control of 
design-basis information 2, 3. Petitioner 
speculates that the configuration management problems and plant 
material condition that led to the shutdown in 1985 only could have 
worsened since then. Thus, Petitioner believes that requiring 
relicensing for Unit 1 if the decision is made to restart would ``wipe 
the licensing slate clean and allow TVA, the NRC, and the public to 
examine restarting the plant without the burden of unraveling the mess 
caused by more than a decade of licensing limbo.'' Petitioner further 
asserts that the NRC cannot meaningfully inspect a facility in a 
degraded condition and in an uncertain licensing status.
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    \2\ NRC letter from James M. Taylor, Executive Director for 
Operations, to Craven Crowell, Chairman, TVA Board of Directors, 
dated October 9, 1996.
    \3\ This letter was sent to TVA on Browns Ferry Units 2 and 3, 
Sequyoah Units 1 and 2, and Watts Bar Units 1 and 2 dockets. It was 
not sent on the Browns Ferry Unit 1 docket because that facility was 
not operating, and it was known to the NRC that extensive design-
basis reconstitution will be required before the facility may be 
restarted.
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    On April 29, 1998, the NRC acknowledged receipt of the petition and 
informed Petitioner that the petition had been assigned to the Office 
of Nuclear Reactor Regulation (NRR) for response. Petitioner was 
informed that the request for a hearing was denied because the petition 
did not provide new information that raised the potential for a 
significant safety issue and did not allege any violations of NRC 
requirements. Petitioner was advised that any new information that 
should be considered by the NRC in evaluating the issues raised in the 
petition should be provided promptly to the NRC in writing.
    On June 5, 1998, Petitioner reiterated the request for a hearing 
and cited NRC Bulletin 94-01, ``Potential Fuel Pool Draindown Caused by 
Inadequate Maintenance Practices at Dresden Unit

[[Page 16008]]

1,'' as an example of what could involve one or more significant safety 
issues. Bulletin 94-01 was sent to (1) all holders of operating 
licenses or construction permits for nuclear power reactors (for 
information) and (2) all holders (except Shoreham) of licenses for 
nuclear power reactors that are permanently shutdown with spent fuel in 
the spent fuel pool (for action). Petitioner argued that Bulletin 94-01 
should have been sent to the Unit 1 licensee for action instead of 
merely for information because Unit 1 is more nearly like a permanently 
shutdown facility than an operating facility and the conditions 
described in the bulletin could have existed at Unit 1.
    By letter dated August 7, 1998, Petitioner was informed that the 
NRC had reconsidered its earlier denial of the request for a hearing 
and had decided that holding an informal public hearing would be 
appropriate 4, even though such a hearing was not required 
under the criteria for such hearings as provided in NRC Management 
Directive 8.11, ``Review Process for 10 CFR 2.206 Petitions.'' The 
August 7 letter also addressed the issues surrounding Bulletin 94-01 
and its applicability to Browns Ferry Unit 1. The hearing was held on 
October 26, 1998, in the Browns Ferry Nuclear Plant Training 
Center.5
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    \4\ The NRC concluded that the petition raised novel issues with 
respect to maintaining an operating license for a facility for which 
there are no plans for future operation and that the information 
that might be presented during an informal public hearing could 
constitute a valuable resource for the NRC in reaching a decision 
with regard to the petition.
    \5\ The hearing transcript can be obtained from the NRC World 
Wide Web page (http://www.nrc.gov/NRC/PUBLIC/2206trans.html). Copies 
of the transcript are available for public inspection at the 
Commission's Public Document Room, the Gelman Building, 2120 L 
Street, NW., Washington, DC 20555-0001, and at the local public 
document room located at the Athens Public Library, 504 E. South 
Street, Athens, Alabama 35611.
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II. Background

    TVA is the holder of operating licenses for three nuclear power 
units at the Browns Ferry site. In March 1985, TVA voluntarily shut 
down Units 1 and 3 because of questions relating to primary containment 
isolation testing at Unit 1 and reactor water level instrumentation at 
Unit 3. Unit 2 was in a refueling outage, but TVA voluntarily decided 
not to restart the unit as scheduled because other questions and 
concerns arose about the adequacy of TVA's nuclear program. In 
September 1985,6 the NRC requested TVA to submit its plans 
for correcting problems and improving performance in its overall 
nuclear program and at Browns Ferry. The Commission did not order TVA 
to obtain its approval before restarting the plants because of prior 
verbal agreement between TVA and NRC to that effect; however, TVA was 
required, pursuant to 10 CFR 50.54(f), to inform the NRC if TVA 
intended to change this commitment. In late 1985, TVA submitted its 
corporate nuclear performance plan (CNPP) to address weaknesses in the 
TVA corporate nuclear program. The CNPP was followed by the Browns 
Ferry Nuclear Performance Plan to address site-specific weaknesses and 
to resolve additional concerns raised by the NRC. These plans formed 
the regulatory framework for the restart of Unit 2.
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    \6\ NRC letter from William J. Dircks, Executive Director for 
Operations, to Charles Dean, Chairman,TVA Board of Directors, dated 
September 17, 1985.
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    In July 1987, the NRC concluded 7 that organizational, 
staffing, and programmatic improvements already in place or under way 
would resolve the problems at the corporate level. In January 1991, the 
NRC concluded 8 that TVA's commitments and corrective action 
programs for Unit 2 were acceptable, and in April 1991, the Commission 
approved Unit 2 restart. Unit 2 restarted May 24, 1991. TVA submitted 
its corrective action plan for returning Units 1 and 3 to service in 
1991,9 and generally used the same methods, criteria, and 
technical positions for Unit 3 that were approved for the restart of 
Unit 2. In February 1992, an NRC Restart Panel was formed in accordance 
with NRC IMC 0350. TVA completed the recovery of Browns Ferry Unit 3 in 
1995, and the Commission authorized the Regional Administrator to 
approve restart of Unit 3 upon completion of certain open issues. The 
NRC Administrator for Region II issued restart approval on November 19, 
1995. Units 2 and 3 have operated well since their respective restarts, 
and this performance is reflected in the NRC systematic assessment of 
licensee performance reports issued since the restart of Unit 2.
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    \7\ NUREG-1232, Volume 1, ``Safety Evaluation Report on 
Tennessee Valley Authority Revised Corporate Nuclear Performance 
Plan,`` July 1987.
    \8\ NUREG-1232, Volume 3, Supplement 2, ``Safety Evaluation 
Report on Tennessee Valley Authority: Browns Ferry Nuclear 
Performance Plan. Browns Ferry Unit 2 Restart,'' January 1991.
    \9\ Letter from Mark O. Medford, Vice President, Nuclear 
Assurance, Licensing, and Fuels, TVA, dated January 9, 1991.
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    In April 1996, TVA requested removal 10 of Browns Ferry 
Unit 1 as a Category 3 plant from the NRC's list of problem plants. TVA 
stated that no decision had been reached on the long-term operational 
status of Unit 1, and the unit is defueled and maintained in lay-up 
status. Those shared systems that support operation of Units 2 and 3, 
however, will continue to be kept in service. TVA noted that there are 
no plans for equipment refurbishing or recovery activities at Unit 1. 
TVA committed to inform the NRC immediately of a decision to return 
Unit 1 to service, to implement the same programs used for the Unit 3 
recovery, and to not restart Unit 1 without prior Commission approval. 
Unit 1 was removed from the list of problem plants 11 on 
June 21, 1996.
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    \10\ Letter from Oliver D. Kingsley, President and Chief Nuclear 
Officer, TVA, dated April 16, 1996, to James M. Taylor, NRC 
Executive Director for Operations.
    \11\ NRC letter from James A. Taylor, Executive Director for 
Operations, to Oliver D. Kingsley, President and Chief Nuclear 
Officer, TVA, dated June 21, 1996.
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III. Discussion

    The hearing provided Petitioner the opportunity to present 
information related to issues that have a bearing upon the actions 
requested in the petition. Petitioner, represented by Mr. David 
Lochbaum, was joined in presenting information to support the petition 
by Ms. Ann Harris, a representative of We the People of Tennessee and 
spokesperson for the National Nuclear Safety Network. The NRC staff has 
reviewed the transcript of the hearing to identify the relevant issues 
to be considered in addition to the filing of April 5, 1998. The 
following paragraphs discuss the issues raised in the petition and in 
the hearing. Related issues have been grouped together and are 
addressed in the following paragraphs.
Petitioner Issues
     The NRC does not inspect Browns Ferry Unit 1.
     The NRC cannot meaningfully inspect Browns Ferry Unit 1 
because the NRC does not have an ``Administrative Hold'' category.
     The NRC cannot meaningfully inspect Browns Ferry Unit 1 
because it is not in compliance with NRC regulations, including the 
``Maintenance Rule.''
    Petitioner asserts that, contrary to a statement made in a letter 
12 to him by

[[Page 16009]]

the NRC Project Manager for Browns Ferry, he has information that shows 
that NRC inspectors do not look at Browns Ferry Unit 1 at all. 
Petitioner asserted further, that NRC inspectors could not meaningfully 
inspect Unit 1 because NRC regulations recognize only two categories of 
power plants: operating plants and permanently closed plants.
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    \12\ NRC letter from Albert W. De Agazio, Browns Ferry Project 
Manager, to David A. Lochbaum, Union of Concerned Scientists, dated 
January 23, 1998. This letter also was an attachment to the April 5, 
1998, submitted by Mr. Lochbaum.
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    Browns Ferry Unit 1 is sometimes referred to as being in an 
``Administrative Hold'' 13 status, but this is a TVA 
designation and it is irrelevant for regulatory purposes. Browns Ferry 
Unit 1 is an operating reactor subject to all the terms and conditions 
that are specified in Operating License DPR-3314, the 
uncertainty of its return to service notwithstanding. The Unit 1 
Technical Specifications (TSs) are maintained, are in force, and must 
be complied with. The operating license and associated TSs are amended 
periodically, usually in concert with similar changes for Units 2 and 
3.
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    \13\ ``Administrative Hold'' is a TVA designation that denotes 
that while no decision has been made regarding future operation of 
the facility, the option for restart at an unspecified future date 
is being retained.
    \14\ Operating License No. DPR-33 was issued to TVA for the 
operation of Browns Ferry Unit 1 on December 20, 1973. The license 
expires on midnight October 20, 2013.
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    Some Unit 1 systems or components 15 are required to 
support the unit in its current defueled condition, or they directly 
support the safe operation of Units 2 or 3. These systems and 
components are maintained and operated as required under applicable 
plant programs or TSs. The remaining systems and components 
16 have been placed in lay-up status to protect their 
economic value and to preserve the equipment in the event a decision is 
made to restart the unit.
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    \15\ This includes such systems (or portions thereof) as spent 
fuel pool cooling and cleanup, raw water, fire protection, reactor /
refuel zone ventilation, radiation monitoring, residual heat 
removal, reactor building closed cooling water, certain electrical 
systems, and emergency diesel generators.
    \16\ Many of these systems and components have been drained, 
deenergized, and disassembled, as appropriate.
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    Unit 1 is subject to both routine and reactive NRC inspection, and 
the unit is inspected by NRC inspectors. However, the operational 
status of the facility is considered when determining the frequency, 
type, and scope of inspections, and the amount of inspection effort is 
substantially less than for a comparable facility in active service 
because much of the equipment and systems serve no safety function 
while the unit is shutdown and defueled. Thus, the NRC inspection 
effort for Unit 1 is focused mostly upon those areas that have a direct 
bearing upon safety. Generally, this includes those structures, 
systems, and components (SSCs) that are necessary to ensure the safe 
storage of Unit 1 irradiated fuel and to support the safe operation of 
Units 2 and 3. The inspection effort includes no or little effort for 
SSCs that are not needed to provide a safety function for the current 
plant operating status.
    Petitioner, in the original petition and during the hearing, relied 
upon information compiled by the NRC that led him to conclude that Unit 
1 is not inspected at all. The sources of the tables used by 
Petitioner, though not fully identified, appear to be taken from 
certain NRC documents that were intended primarily for internal 
management use, but the information has been released through at least 
one Freedom of Information Act request, and similar information has 
been presented at several of the annual Regulatory Information 
Conferences sponsored by NRR. We acknowledge that the NRC documents are 
misleading and could lead a person to that conclusion regarding Unit 1 
inspection. Until 1997, NRR compiled quarterly various program and 
management information in a ``White Book,'' intended for internal 
purposes. The documents included data on inspection efforts expended at 
single-, dual-, and triple-unit sites. In those documents, Browns Ferry 
was shown as a dual unit site, though it is actually a triple unit 
site. Unit 1 was not included because it was not in operational 
service. This was done so that the data could be used for comparison 
purposes to other dual-unit sites. Although these documents 
17 have described incorrectly the Browns Ferry site as a 
dual-unit site, the fact remains that Unit 1 is inspected by NRC 
inspectors. This inspection activity is adequately demonstrated by the 
results of a review of NRC inspection reports for Browns Ferry issued 
for the 3-year period 1996 through 1998. Of 32 inspection reports 
issued for that period, 10 refer to NRC inspection of Unit 1 issues 
(Table I). Table I does not include inspection activities associated 
with the systems ``shared'' between the units or inspection of common 
buildings; those items are routinely inspected as support for Units 2 
and/or 3.
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    \17\ Publication of these documents was discontinued at the end 
of 1996.
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    NRC IMC 0030, ``Policy and Guidance for Development of NRC 
Inspection Manual Programs,'' provides guidance for the development of 
the NRC inspection program, and the inspection program at Browns Ferry 
has been developed in accordance with this guidance. For the 12 month 
period from October 1, 1997, through September 30, 1998, the actual NRC 
inspection effort expended at Unit 1 was approximately 12 percent of 
the effort expended at either of the other units. On a site basis, Unit 
1 received approximately 6 percent of the total inspection hours for 
the site. Thus, the greater inspection effort at the operating units 
allows the NRC to adequately assess the licensee's performance and to 
focus its efforts into areas that have the greater safety significance 
as opposed to inspecting in areas of Unit 1 that have little on no 
safety significance.
    Petitioner asserts that Browns Ferry Unit 1 is not in compliance 
with NRC regulations. To support this contention, Petitioner states 
that usually TVA has deferred taking actions with respect to Browns 
Ferry Unit 1 requested by numerous generic communications issued since 
1985. TVA typically has committed to completing the actions before 
returning the unit to service, if such a decision is made. As 
additional support for this contention, Petitioner notes that there is 
an outstanding issue regarding Unit 1 compliance with 10 CFR 50.65, 
commonly referred to as the maintenance rule.
    IMC 0720 provides guidance with regard to NRC generic 
communications on nuclear reactor issues. Generic communications 
consist of bulletins, generic letters, and information notices. 
Bulletins may transmit information to the addressees, request specified 
actions, and require a written response. Generic letters request that 
analyses be performed or descriptions of proposed corrective actions be 
submitted regarding matters of safety, safeguards, or environmental 
significance. The addressees may be asked to accomplish the actions and 
report their completion by letter. Information relating to these 
actions may be requested on a voluntary basis or in accordance with 
Section 182a, Atomic Energy Act of 1954, as amended, and 10 CFR 
50.54(f). Usually, this type of generic letter requests new or revised 
licensee commitments or other continuing actions but may not explicitly 
or coercively solicit licensee commitments. Information notices provide 
information regarding safety, safeguards, or environmental issues. 
Information notices normally are used to bring significant, recently 
identified safety, security, or environmental information to the 
attention of licensees. Addressees are expected to review the

[[Page 16010]]

information for applicability to their facilities and consider actions, 
as appropriate, to avoid similar problems.
    IMC 0720 states that the various types of generic communications 
are not used to impose regulatory requirements, and they are not to be 
used as a substitute for the rule-making process. Thus, the fact that a 
licensee merely provides the written response required by the Atomic 
Energy Act and/or NRC rules and regulations but does not, or will not, 
implement other requested action(s) does not, by itself, constitute 
being in non-compliance with a regulatory requirement and does not 
constitute a basis for suspension or revocation of the operating 
license. In such circumstances, the NRC, may take other action 
commensurate with the safety significance of the issues. Such actions 
could vary in severity from acceptance by the NRC that the licensee has 
a valid basis for not taking the requested actions up to the NRC's 
issuing an Order to shut down (or to remain shutdown) until the 
particular safety issue is resolved in an acceptable manner. With 
regard to Browns Ferry Unit 1, the licensee has either taken the 
requested actions in the generic communications when necessary or has 
committed to address the issues raised before the unit can be 
restarted. Furthermore, although TVA has no announced plans for 
restarting the facility, TVA has agreed not to restart it without 
specific approval from the Commission. Thus, any Commission action 
taken with regard to revoking the Unit 1 operating license merely 
because of TVA's deferral of actions requested in generic 
communications pending a decision to restart Unit 1 would serve no 
useful purpose.
    With the possible exception of 10 CFR 50.65, the Commission is not 
aware of any non-compliance issues with applicable NRC rules and 
regulations at Browns Ferry Unit 1. Furthermore, Petitioner has not 
offered any contradictory credible information, either in the original 
petition or during the hearing. However, the issue of Unit 1 compliance 
with 10 CFR 50.65 is still undergoing review by the NRC staff, and no 
final decision has been made.
    The issue regarding 10 CFR 50.65 arose from an inspection of the 
implementation of 10 CFR 50.65 at the Browns Ferry plant from April 4 
through April 8, 1997.18 The inspection team found that the 
licensee considered Unit 1 status (shutdown and defueled) for 
implementing 10 CFR 50.65. Thus, a number of Unit 1 systems, such as 
high pressure coolant injection, which normally would be included 
within the scope of 10 CFR 50.65 for an operating plant, were not 
included, and performance monitoring, data collection, and trending 
were not being performed on these systems. However, those Unit 1 
systems that support Unit 2 and/or Unit 3 operation, systems that are 
common to Unit 2 or Unit 3, or systems required to maintain safe 
shutdown of Unit 1, such as spent fuel pool cooling, were properly 
scoped under 10 CFR 50.65, and performance monitoring, data collection, 
and trending were being performed on these systems.
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    \18\ NRC Inspection Report 50-259/97-04, 50-260/97-04, and 50-
296/97-04, issued May 21, 1997.
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    At issue is whether scoping Unit 1 SSCs by considering the defueled 
and indefinite shutdown condition of Unit 1 satisfies 10 CFR 50.65. The 
staff has informed the licensee that the issue can be resolved by one 
of three approaches, namely, certify per 10 CFR 50.82(a)(1) that Unit 1 
operations have ceased permanently, submit a request for exemption from 
those aspects of 10 CFR 50.65 that currently are not being met, or 
revise the scope of the Unit 1 maintenance program to meet the 
requirements of the rule. On February 4, 1999, TVA submitted a request 
for a temporary partial exemption from the requirements of 10 CFR 
50.65. The staff currently is reviewing the proposed exemption request.
Petitioner Issues
     TVA would exceed its statutory debt limit if Browns Ferry 
Unit 1 is closed prematurely.
     TVA may lack the money needed to put Browns Ferry Unit 1 
into the operating category, or the permanently closed category.
     TVA does not have the necessary funds for decommissioning 
funding assurance.
    Petitioner has made a number of assertions regarding the ability of 
TVA to fund operations and/or decommissioning of Unit 1 but has not 
provided any facts in support thereof. The NRC, however, has no 
regulatory authority with regard to issues related to TVA's statutory 
debt limit or other financial matters and decisions other than 
decommissioning funding assurance.
    On November 23, 1998, the Commission's amended rules for 
``Financial Assurance Requirements for Decommissioning Nuclear Power 
Reactors'' became effective.19 The amendments require power 
reactor licensees to report periodically on the status of their 
decommissioning funds, and on changes in their external trust 
agreements and other financial assurance mechanisms, and also allow 
licensees to take credit for certain earnings on decommissioning trust 
funds. The amendments also added a definition of the term ``Federal 
Licensee'' to address the issue of which licensees may use statements 
of intent. As now defined in 10 CFR 50.2, a Federal Licensee means any 
NRC licensee, the obligations of which are guaranteed by and supported 
by the full faith and credit of the United States Government. In the 
past, TVA has relied upon statements of intent to have decommissioning 
funds available. The purpose of the statement of intent is to obtain a 
commitment by another, and superior, governmental entity that the 
obligations of the subordinate governmental entity will be paid by the 
superior entity if the subordinate entity cannot pay them. Such a 
commitment represents support for the obligations by the full faith and 
credit of the United States. TVA agrees 20 that the revised 
definition excludes TVA from relying upon this funding mechanism and 
has informed the NRC that statements of intent will no longer be relied 
upon for decommissioning funding assurance. TVA has provided 
documentation for three external Master Decommissioning Trusts that 
were established in 1996. TVA has stated that the external trusts 
arrangements meet the requirements for an external sinking fund (10 CFR 
50.75(e)(ii)). The trust arrangements meet the requirement that the 
account be segregated from licensee assets and placed outside the 
licensee's administrative control. During the hearing on October 26, 
1998, a representative of the TVA's Office of the General Counsel 
stated that the external trust fund arrangements exceeded several 
hundreds of millions of dollars. As required by 10 CFR 50.75(f)(1), TVA 
is to report to the NRC by March 31, 1999, and at least once every 2 
years thereafter, the status of its decommissioning funding, including 
the amount of decommissioning funds estimated to be required, the 
amount accumulated to the end of the calendar year preceding the date 
of the report, and a schedule of the annual amounts remaining to be 
collected. The NRC will review the status of TVA's decommissioning 
funding report, and if necessary, appropriate action will be

[[Page 16011]]

taken to ensure compliance with NRC regulations.
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    \19\ Final rule changes to 10 CFR Parts 30 and 50 on financial 
assurance requirements for the decommissioning of nuclear power 
plants were published in the Federal Register on September 22, 1998 
(63 FR 50465).
    \20\ Letter from Mark J. Burzynski, Manager, Nuclear Licensing, 
TVA, dated December 21, 1998, to NRC.
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Petitioner Issue
     A decommissioning plan would ensure safe storage of Browns 
Ferry Unit 1 irradiated fuel and would ensure sufficient independence 
of Units 2 and 3 from Unit 1.
    Petitioner contends that Unit 1 irradiated fuel stored in its spent 
fuel pool will continue to represent a threat to public health for many 
years. The probability of an accident involving stored fuel is 
considered to be sufficiently small to make the overall risk to the 
public from an accident acceptable; however, Petitioner contends that 
the probability is small only because NRC regulations for design 
features and administrative controls at both permanently closed plants 
and operating plants minimize the chances of an accident. Petitioner 
asserts that there are no regulations for plants in Administrative Hold 
status, and, thus, there are no regulations that apply to Unit 1.
    As previously stated, Administrative Hold is a TVA designation, not 
an NRC designation, and, thus, for NRC regulatory purposes, Browns 
Ferry Unit 1 is an operating reactor and is subject to all terms and 
conditions of the Unit 1 operating license, TSs, and all applicable NRC 
regulations, contrary to Petitioner's assertion that Unit 1 is 
unregulated.
    Each of the reactors at Browns Ferry has its own spent fuel storage 
pool, but the pools of Units 1 and 2 are joined by a transfer canal 
that allows fuel assemblies to be transferred between the Unit 1 and 
Unit 2 fuel storage pools. The fuel storage facilities are shared only 
for Units 1 and 2, and the transfer canal is the only shared feature. 
The Unit 1 spent fuel storage pool is located on a common refueling 
floor with and in the same structure that houses the Units 2 and 3 
spent fuel storage pools.
    Units 2 and 3 are in active operational status, thus, each unit is 
refueled periodically, requiring discharge of recently irradiated fuel 
into the storage pools. Compared to Unit 1 fuel that was last 
discharged in 1985, recently discharged fuel from Unit 2 or Unit 3 is 
substantially more radioactive and produces greater decay heat. Thus, 
the consequences of an accident involving recently discharged 
irradiated fuel would be more severe than the same accident involving 
Unit 1 fuel. It follows that TSs, administrative controls, technical 
requirements, and design features that are adequate to ensure the safe 
storage of Unit 2 or Unit 3 spent fuel are also adequate to ensure safe 
storage of Unit 1 irradiated fuel.
    Thus, whether or not Unit 1 was to be declared permanently shut 
down, the fuel storage requirements would not be changed. Requiring the 
licensee to declare the permanent shutdown of Unit 1 and to submit a 
post-shutdown decommissioning activities report, as requested by 
Petitioner, would have no effect upon the risk to the public from a 
potential fuel-handling accident or from accidental draining of the 
fuel storage pool because the existing technical specifications and 
administrative controls would not be changed, and existing design 
features to preclude draining of the storage pools would be maintained. 
Additionally, the SSCs required to ensure safe storage of irradiated 
fuel in the Unit 1 storage pool are operated, tested, and maintained to 
ensure that they are capable of performing their function.
    With regard to Petitioner's assertion that a decommissioning plan 
would ensure sufficient independence of Units 2 and 3 from Unit 1, it 
is not at all clear which safety issue would be addressed. As currently 
licensed, the Browns Ferry units incorporate some sharing of certain 
structures and systems to obtain redundancy and improve reliability, 
but aside from the shared and common features, each unit is capable of 
operating independently of the other units, and each unit's TSs and 
technical requirements take into account the shared and common features 
that must be operable to support safe operation of that unit. Requiring 
the licensee to declare the permanent shutdown of Unit 1 and to submit 
a post-shutdown decommissioning activities report would require 
retaining those sections of the Unit 1 TSs that are necessary to 
support the safe operation of Units 2 and 3.
Continuing Operational Safety of Browns Ferry Unit 1
    The Browns Ferry Unit 1 TSs are maintained and amended periodically 
as necessary, as is the case with Units 2 and 3, and TVA is required to 
operate Unit 1 in conformance with the TSs and technical requirements. 
Inasmuch as Unit 1 is shutdown and defueled, a number of safety and 
non-safety systems and components are not required to be operational. 
These systems and components have been drained, deenergized, and 
disassembled, as appropriate, and have been placed in a lay-up 
condition to protect and preserve the equipment pending a decision to 
resume power operations. The lay-up program is described in plant 
procedures and includes periodic monitoring of the condition of the 
equipment and lay-up status.
    Unit 1 systems and components required to perform a function while 
the unit is in its current defueled status or that are required to 
support Units 2 and 3 operations are operated, maintained, and 
periodically tested in conformance with applicable TSs, and are 
included within the scope of the maintenance rule (10 CFR 50.65) 
program. Design and configuration control is maintained for these 
systems, and modifications or temporary alterations are performed under 
the provisions of 10 CFR 50.59.
    Certain systems and components not required to perform a function 
while Unit 1 is shutdown and defueled may not now conform to the design 
basis or may not have been modified to meet the actions requested by 
various NRC generic communications issued since the unit shut down. 
This, by itself, does not constitute a basis for revoking the license 
since the facility is in an operational mode in which the equipment is 
not required to be operable. TVA has committed to implementing a Design 
Baseline Verification Program for Unit 1 prior to returning Unit 1 to 
service.
    Units 1 and 2 share a common control room that is staffed 
continually by licensed reactor operators, and the Unit 1 control 
boards are given regular attention similar to the operating units. 
Operators and engineers routinely tour areas of Unit 1 containing the 
systems and equipment that the TSs require to be operable to ensure 
safe storage of irradiated fuel and to support operation of the other 
units.
Relicensing Versus Applying the IMC 0350 Process
    Petitioner asserts that revoking the operating license and 
requiring relicensing if TVA later decides to restart Unit 1 is a 
better and safer process than is the current restart process in IMC 
0350. Petitioner believes that this would ``wipe the licensing slate 
clean and allow TVA, the NRC, and the public to examine restarting the 
plant without the burden of unraveling the mess caused by more than a 
decade of licensing limbo.''
    NRC IMC 0350 provides staff guidelines for approving restart of 
nuclear power plants that have been shut down either voluntarily or 
involuntarily because of a significant operating event, complex 
equipment problems, or serious licensee management deficiencies. The 
guidelines have been used successfully for the restart of Browns Ferry 
Unit 3, Crystal River Unit 3, and Millstone Unit 3 and are being used 
for the D. C. Cook

[[Page 16012]]

reactors and Millstone Unit 2. In each case, a plant-specific restart 
plan is developed using the IMC for guidance. The restart action plan 
identifies expected NRC actions to be taken before approving restart 
and includes an inspection plan to ensure that an adequate inspection 
record is created to support the restart decision. IMC 0350 specifies 
that the NRC Commissioners are to be adequately informed of staff 
restart actions on a continuing basis through Commission papers or 
through the Executive Director for Operations, and as necessary, the 
staff will brief the Commissioners. IMC 0350 provides the opportunity 
for public participation through public meetings. Through such 
meetings, the public may hear and comment on the licensee's restart 
plans and the results of NRC reviews of the restart activities. Public 
comments and concerns are considered by the NRC and may be factored 
into the restart review, as appropriate.
    During the hearing on October 26, 1998, Petitioner was questioned 
by an NRC representative regarding why it is believed that the 
processes used by TVA and NRC to recover Units 2 and 3 would not work 
for recovery of Unit 1. Petitioner indicated that the process is ``not 
very objective and it's basically up to the whims of the restart team 
as to what is safe, where the lines are drawn.'' However, when asked if 
there would be an issue if the process is applied correctly with 
openness and public involvement, Petitioner responded by referencing 
the use of the process at Millstone and indicating that it [IMC 0350] 
is a good process, but that it wasn't followed [at Millstone]. Thus, 
Petitioner's issue does not appear to be the process but its 
implementation. Petitioner conceded that the IMC 0350 process is 
working very well in the case of the D.C. Cook plant, and that if it 
were used at Browns Ferry Unit 1 as it is being used at D. C. Cook, 
there would be reasonable expectation that a good product would be 
realized.

IV. Summary and Conclusions

    The NRC has determined that--
     Petitioner has not identified any credible safety concern 
that has been created by the current ``Administrative Hold'' status of 
the unit that would not otherwise exist if the operating license were 
to be revoked. Absent a credible safety concern, there is no regulatory 
basis for suspending or revoking an operating license merely because 
the licensee chooses not to operate the unit.
     The licensee is required to comply with and is, with one 
possible exception to the staff's knowledge, in compliance with all 
current applicable regulations for operating reactors and is required 
to comply with Unit 1 TSs and other technical requirements for the 
current operational mode of the unit. The issue of compliance of Unit 1 
with 10 CFR 50.65 is the subject of an ongoing review, and resolution 
is expected soon.
     Unit 1 is inspected by NRC inspectors, but at a reduced 
scope that is appropriate for the status of the unit.
     Decommissioning Unit 1 would not provide any greater 
degree of safety for the Unit 1 irradiated fuel, for radiation control, 
or for Units 2 and 3 than is currently provided by the requirements of 
the operating license, TSs, and the Technical Requirements Manual.
     There is no demonstrated credible basis for the assertion 
that facility restart based upon IMC 0350 is a less reliable process 
for resolving the safety concerns of a problem plant than the 
relicensing process. The IMC 0350 process has been demonstrated by a 
number of restart efforts, including those for Browns Ferry Unit 3.
    For the reasons stated herein Petitioner's requests for the NRC to 
revoke the Browns Ferry Unit 1 operating license and to require TVA to 
submit a decommissioning plan or a lay-up plan for Unit 1, and for the 
NRC to conduct inspections against the decommissioning plan are denied.
    As provided for in 10 CFR 2.206(c), a copy of this decision will be 
filed with the Secretary of the Commission for the Commission's review. 
This decision will constitute the final action of the Commission 25 
days after issuance unless the Commission, on its own motion, 
institutes review of the Decision at that time.

    Dated at Rockville, Maryland, this 29th day of March 1999.

    For the Nuclear Regulatory Commission.
Samuel J. Collins,
Director, Office of Nuclear Reactor Regulation.

Attachment to Director's Decision 99-06

                               Table 1.--Browns Ferry Unit 1 Inspection Activities
                                               [1996 through 1998]
----------------------------------------------------------------------------------------------------------------
                     Inspection report                          Date               Inspection activity
----------------------------------------------------------------------------------------------------------------
50-259/96-01...............................................    02/29/96  Radioactive material postings.
50-259/96-03...............................................    04/15/96  Connection of Unit 1 and Unit 2 spent
                                                                          fuel pool volumes, spent fuel pool
                                                                          design-basis and operating
                                                                          information.
50-259/96-05...............................................    06/18/96  Udated final safety analysis report
                                                                          description of spent fuel pool
                                                                          systems.
50-259/96-06...............................................    08/15/96  Continuous air monitoring systems.
50-259/96-10...............................................    11/07/96  Housekeeping issues.
50-259/96-12...............................................    12/20/96  Lay-up and preventive maintenance
                                                                          program implementation.
50-259/97-03...............................................    04/22/97  Spent fuel pool cooling system
                                                                          walkdown, identification that Unit 1
                                                                          pool makeup valve operator had been
                                                                          removed.
50-259/97-04...............................................    05/21/97  Maintenance rule implementation.
50-259/97-08...............................................    08/29/97  Sampling of a raw cooling water
                                                                          discharge.
50-259/97-12...............................................    02/12/98  Repairs to a radiation monitoring
                                                                          system valve.
----------------------------------------------------------------------------------------------------------------


[[Page 16013]]

[FR Doc. 99-8164 Filed 4-1-99; 8:45 am]
BILLING CODE 7590-01-P