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  |"Crockett, Steven" <Steven.Crockett@nrc.gov>                                                                                              
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  |"Higgins, Cortney" <Cortney_Higgins@omb.eop.gov>, RobertJ 
Wayland/RTP/USEPA/US@EPA, Melanie King/RTP/USEPA/US@EPA, Michael                
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  |Horowitz/DC/USEPA/US@EPA                                                                                                                  
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  |"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>  
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| Date:      |
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  |02/07/2010 03:31 PM                                                                                                                       
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  |A Correction and Some Further NRC comment.                                                                                                
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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 
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)
