ML032760053
| ML032760053 | |
| Person / Time | |
|---|---|
| Site: | Nuclear Energy Institute |
| Issue date: | 11/20/2003 |
| From: | Lyons J Division of Regulatory Improvement Programs |
| To: | Simard R Nuclear Energy Institute |
| Sebrosky J, NRR/DRIP/RNRP, 415-1132 | |
| References | |
| Download: ML032760053 (12) | |
Text
November 20, 2003 Dr. Ronald L. Simard Nuclear Energy Institute 1776 I Street, NW, Suite 400 Washington, DC 20006-3708
SUBJECT:
RESOLUTION OF COMBINED LICENSE TOPIC 5 (COL-5), THE 10 CFR 52.103 HEARING PROCESS
Dear Dr. Simard:
This letter confirms our understandings and expectations regarding the 10 CFR 52.103 hearing process. This topic is identified as COL-5 on the list of Nuclear Energy Institutes (NEIs) generic combined license (COL) issues provided to the staff by NEI during a public meeting on May 22, 2003 (Meeting Summary - ADAMS Accession No. ML031970065). NEI provided its positions associated with the 10 CFR 52.103 hearing and inspections, tests, analyses and acceptance criteria (ITAAC) in a letter dated November 20, 2001, titled, Draft White Paper:
ITAAC Implementation and Transition to Full Power Operations Under Part 52" (ADAMS Accession No. ML020070338). The staff provided a response to NEIs white paper in a letter dated June 4, 2002 (ADAMS Accession No. ML021550137). In its letter, the staff provided only a partial response to the hearing issues identified in the NEI paper. The enclosure to this letter provides the response to the remaining hearing issues. Please contact Joseph Sebrosky, COL Project Manager, at 301-415-1132 if you have any questions on this matter.
Sincerely,
/RA/
James E. Lyons, Program Director New, Research and Test Reactors Program Division of Regulatory Improvement Programs Office of Nuclear Reactor Regulation Project No. 689 cc: See next page
ML031970065). NEI provided its positions associated with the 10 CFR 52.103 hearing and inspections, tests, analyses and acceptance criteria (ITAAC) in a letter dated November 20, 2001, titled, Draft White Paper:
ITAAC Implementation and Transition to Full Power Operations Under Part 52" (ADAMS Accession No. ML020070338). The staff provided a response to NEIs white paper in a letter dated June 4, 2002 (ADAMS Accession No. ML021550137). In its letter, the staff provided only a partial response to the hearing issues identified in the NEI paper. The enclosure to this letter provides the response to the remaining hearing issues. Please contact Joseph Sebrosky, COL Project Manager, at 301-415-1132 if you have any questions on this matter.
Sincerely,
/RA/
James E. Lyons, Program Director New, Research and Test Reactors Program Division of Regulatory Improvement Programs Office of Nuclear Reactor Regulation Project No. 689 cc: See next page Distribution: See next page
- See previous concurrence ACCESSION NO. ML032760053 OFC PM:RNRP SPA:RNRP SC:RNRP OGC PD:RNRP NAME JSebrosky JWilson*
LDudes RWeisman JLyons DATE 11/12/03 10/6/03 11/19/03 11/19/03 11/19/03
Distribution for Letter to R. Simard dated November 20, 2003 Hard Copy PUBLIC RNRP Rdg JSebrosky LDudes JLyons E-mail JDyer/RBorchardt JCraig BSheron OGC ACRS/ACNW Mashley JBlake RGardner CPaulk GMizuno RWeisman JMoore KBarber, OGC MLemoncellli DBarss BMusico NIqmbal PQualls TKenyon DCoe MEl-Zeftway Comments Related to the 10 CFR 52.103 Hearing Process From November 20, 2001, Nuclear Energy Institute Letter On November 20, 2001, the Nuclear Energy Institute (NEI) submitted to the NRC staff a Draft White Paper: ITAAC Implementation and Transition to Full Power Operations Under Part 52 (NEI paper), which included, among other things, NEIs views on several issues related to hearings requested pursuant to 10 CFR § 52.103. The staff responded to the NEI paper by a letter dated June 4, 2002. While the staff fully responded to most of the issues NEI raised in its white paper, the staff made only a partial response to the hearings issues. The staffs comments related to the remaining hearings issues are set forth below. Since most of the rationale for NEIs positions is set forth in its Main Points, in Section 6.1 of the NEI paper the staff comments follow the organization of those Main Points.
By way of background, Section 185b. of the Atomic Energy Act of 1954 (Act), as amended, provides, in part, that [t]he [NRC] shall identify within [a] combined license [(COL)] the inspections, tests, and analyses... that the licensee shall perform, and the acceptance criteria that, if met, are necessary and sufficient to provide reasonable assurance that the facility has been constructed and will be operated in conformity with the license, the provisions of the Act, and the Commissions rules and regulations. The Commission implements this portion of Section 185b. in 10 CFR § 52.97(b)(1), which quotes the statutory language verbatim.
The Act also requires the Commission to make certain findings before operation. As set forth in Section 185b., [f]ollowing issuance of the [COL], the Commission shall ensure that the prescribed inspections, tests, and analyses are performed, and, prior to operation of the facility, shall find that the prescribed acceptance criteria are met. The NRC implements this provision through 10 CFR § 52.99, under which the NRC staff issues notices of the successful completion of individual or multiple ITAAC, and 10 CFR § 52.103, under which the Commission may authorize facility operation, as set forth below. Section 52.103 also implements Section 189a.(1)(B), which, as also discussed below, provides opportunities for hearings with respect to completion of ITAAC. Except for cross-references and the statement that Section 189a.(1)(A) does not apply to commencement of operation under a COL,
§§ 52.103(a)-(e) incorporate verbatim Sections 189a.(1)(B)(i)-(v), respectively.
Under 10 CFR § 52.99, upon completion of various stages of construction, the staff will verify that the associated ITAAC have, in fact, been met. As the staff verifies that ITAAC are satisfied, it periodically publishes notice of such determinations in the Federal Register, as required by § 52.99. When construction nears completion, the procedures of § 52.103 are invoked, as follows.
At least 180 days before scheduled fuel load, as required by § 52.103(a), the Commission will publish in the Federal Register a notice of intended operation of a nuclear power plant being constructed under a COL, and will provide an opportunity to request a hearing. Pursuant to
§ 52.103(b), such a request for a hearing must show, prima facie, that: (1) one or more of the acceptance criteria in the COL have not been, or will not be met; and (2) the specific operational consequences of nonperformance that would be contrary to providing reasonable assurance of adequate protection of the public health and safety. NEIs positions on how this process should be implemented and the staffs response to those positions follows.
1 The Statements of Consideration for the final rule, 54 Fed. Reg. 15372 (Apr. 18, 1989), do not describe how the NRC is to obtain this schedule. While the original proposed rule would have required a holder of a COL to apply for authorization of operation (53 Fed. Reg. 32060, 32077), the final rule did not retain such a requirement. NEI Position 1 The licensee precipitates the Section 52.103 process and the notice of intended operation required by Section 52.103(a) by sending a letter to the NRC identifying the intent to load fuel on a specified date. The Licensees letter is also expected to identify those ITAAC that have yet to be completed and a schedule for their completion. NEI Paper at 23.
Staff Response While neither Section 185b. of the Act nor 10 CFR § 52.103(a) requires a COL holder to inform the NRC of its schedule for initially loading fuel into the reactor, it would seem that the COL holder is in the best position to know when the ITAAC would be complete and the first opportunity to load fuel would occur.1 Thus, the regulations do not proscribe such a process, and it appears reasonable for the COL holder to notify the NRC in writing of its desire to load fuel by a specified date. The COL holder should submit its letter to the NRC early enough so that the staff has time to prepare the notice and arrange for its publication to meet the requirement that the Commission publish the notice of intended operation at least 180 days prior to scheduled fuel load.
In addition, the staff believes the information described above should be submitted under oath or affirmation. Although 10 CFR § 50.30(b) applies only to applications for, and amendments to licenses, and does not in literal terms apply to the type of letter proposed here, because of the importance of the information, the staff believes that it should be submitted under oath or affirmation.
NEI also suggests that licensees identify incomplete ITAAC and a schedule for their completion.
As described in the analysis of NEI Position 3, below, the staff believes that § 52.103(a) allows for issuance of the notice of intended operation before all ITAAC have been completed. While Part 52 does not require licensees to identify ITAAC that are not complete when the licensee informs the Commission of the schedule for initial fuel loading, the staff agrees that such identification would enable the Commission to publish meaningful notice at least 180 days before scheduled fuel load, in accordance with 10 CFR 52.103(a).
NEI Position 2 The NRC will publish in the Federal Register the notice of intended operation required by Section 52.103(a). This notice will provide opportunity to request a hearing on matters of ITAAC noncompliance. NEI Paper at 23.
Staff Response NEI accurately summarizes the provision of the regulation. As indicated above, the § 52.103(a) notice would be issued at least 180 days before scheduled initial fuel loading.
NEI comments that the NRC staff would be expected to inform the Commission regarding the status of ITAAC completion and to publish the required Section 52.103(a) noticedespite the existence of open QAP [Quality Assurance Program] deficiencies or other incomplete activitiesprovided that the deficiencies and incomplete activities do not impact the determination that the ITAAC have been or will be satisfied before fuel load. NEI Paper at 25.
The staff, of course, will not issue the § 52.103(a) notice unless the Commission delegates authority to the staff to do so. If identified deficiencies do not affect ITAAC determinations, there would be no need to delay issuance of the notice, but the nature of any deficiencies and their significance is a fact-specific matter.
NEI Position 3 A number of ITAAC are expected to be uncompleted at the time of the Section 52.103 notice.
It is expected that the notice will identify those ITAAC for which § 52.99 notices of completion have and have not been issued. To request a hearing on ITAAC completed after issuance of the Section 52.103(a) notice, Section 2.714 provides standard NRC administrative procedures for submittal and consideration of late-filed petitions. NEI Paper at 23.
Staff Response Section 52.103(a) provides for a notice of opportunity to request a hearing with respect to certain issues. This notice must be issued at least 180 days before scheduled fuel load, as indicated above, but is independent of any notice issued pursuant to Section 52.99. The notices issued under Section 52.99 are intended only to inform the public of the staffs conclusions regarding the ITAAC that are the subject of such notices. Notices issued pursuant to Section 52.99 do not convey an opportunity to request a hearing.
Section 52.103(a) incorporates language from Section 189a.(1)(B)(i) of the Act stating that the notice of intended operation shall provide that any person whose interest may be affected by operation of the plant may request a hearing on whether the facility as constructed complies, or on completion will comply, with the acceptance criteria of the license. This language explicitly allows the Commission to issue the notice of intended operation before completion of the facility, and, consequently, with incomplete ITAAC. Therefore, NEIs proposed scenario in which the Commission issues the notice under § 52.103(a) with outstanding incomplete ITAAC is permitted by the Act and the Commissions regulations.
With respect to identification of incomplete ITAAC in the notice of intended operation, Section 52.103(a) does not require such identification. The notice will likely identify sources of information (e.g., NRCs Public Document Room (PDR), ADAMS, and the NRC website) that provide the status of the application, and information regarding whether ITAAC have been completed or not should be available from these sources. If ITAAC are incomplete when the Commission issues the notice, the staff will likely prepare its own list of ITAAC it believes incomplete, place the list in the public domain, and reference that list, as well as any list prepared by the licensee, in the notice. In view of the above, including this information in the notice of intended operation appears to be unnecessary.
As for NEIs position on applicability of the late-filing standards in 10 CFR § 2.714, the staff interprets that position to mean that such standards would apply upon the expiration of the 60 day period specified in § 52.103(a) for requesting a hearing. For example, a person could request a hearing with respect to an ITAAC completed 10 days after issuance of the notice of intended operation under § 52.103(a), and do so well within the 60 day period for requesting a hearing specified in the notice. A person filing a request for a hearing in this manner would not be required to meet the late-filing criteria of § 2.714.
At the same time, a hearing request under § 52.103(a) filed within the allotted 60 days must, to the extent possible, raise issues with respect to ITAAC whether they are complete or not.
Specifically, if a person believes that an ITAAC that is not yet complete (i.e., an ITAAC for which the staff has not issued a notice of successful completion under 10 CFR § 52.99) will not be successfully completed, and desires a hearing on that matter, that person must request a hearing during the period specified in the notice. (The petitioner would also need to satisfy the other requirements for requesting a hearing in Section 52.103(b)). In this regard, NEI states that [a] person should be allowed to file a request for hearing with respect to [ITAAC completed after issuance of the § 52.103(a) notice] within 60 days of the 52.99 notice on the ITAAC. NEI Paper at 26.
The staff believes that NEIs proposed procedure is not contemplated by the current regulations, as indicated above, and is unnecessary because the late-filed contention provisions in Section 2.714 adequately address NEIs concern. If the § 52.99 notice of completion provides information that was not previously available to the public, and that information is an essential portion of a petitioners basis for requesting a hearing, the petitioner may well rely on such circumstances to show good cause for late-filing, in accordance with § 2.714. The staff believes that the concern addressed by NEIs statement that § 52.99 notices of ITAAC completion issued after the § 52.103(a) notice of intended operation should provide an opportunity to request a hearing for the ITAAC covered in the § 52.99 notice is adequately treated under the regulations. Therefore, such § 52.99 notices need not include an opportunity to request a hearing.
NEI also states that the Commission may consider, in deciding whether to grant a request for a hearing, whether the contention is exempt from adjudication under the Administrative Procedures Act. NEI Paper at 27; see Administrative Procedure Act (APA),
5 U.S.C. § 554(a)(3). The NRC staff agrees.
NEI Position 4 Requests for hearing are due in 60 days, at which time the Commission will deny or grant the request. The Commission is obligated to make every effort to resolve issues raised by the hearing requests prior to the scheduled date of fuel load. NEI Paper at 23.
Staff Response The regulation in 10 CFR § 52.103(c) requires that the Commission expeditiously either deny or grant a request for hearing after receiving one. In addition, 10 CFR § 52.103(e) indicates that the Commission shall, to the maximum extent possible, render a decision on the issues raised by hearing requests within 180 days of publication of the notice issued pursuant to § 52.103(a),
or the anticipated date for initial fuel load, whichever is later. The staff does not interpret NEIs position as meaning that the Commission do more.
NEI Position 5 If there are no requests for hearing, none granted, or if all issues raised are resolved before fuel load, the NRC would, upon completion and NRC staff verification of all ITAAC, make the required Section 52.103(g) finding authorizing plant operation, including scheduled fuel load, power ascension testing and full power operations. NEI Paper at 23.
Staff Response Although the staff agrees with the general thrust of NEIs position, the staff disagrees with some of the particulars stated by NEI. Specifically, as indicated in comments number 30 and 32 in the Staffs Response of June 4, 2002, the COL will likely contain license conditions to control power ascension testing and the commencement of full power operations. The staff also provided a position relative to the process associated with the § 52.103(g) finding in the Draft 10 CFR Part 52 Construction Inspection Program Framework Document, May 2003 (ADAMS Accession Number ML031400849).Section III.D.4.f of this framework document,Commission
§ 52.103(g) ITAAC Finding, states the following:
Before a facility may operate the Commission is required by 10 CFR 52.103(g) to find that the acceptance criteria in the COL were met. Once the licensee has informed the staff that all the ITAAC have been completed, the staff will perform an independent review to ensure that it has received an ITAAC determination letter for each ITAAC and that the staff agrees that all the ITAAC have been met.
This independent review could be done by the same team that will perform the operational readiness assessment that is discussed in section III.E.2.b of this report. The [Regional Administrator] will rely on an independent review and the recommendation from the senior NRC site manager to make a recommendation to the Director of Nuclear Reactor Regulation (NRR) stating that all the ITAAC have been met. The Director of NRR will make a recommendation to the Commission that the Commission find that all acceptance criteria in the COL have been met. If the Commission determines that all of the acceptance criteria in the ITAAC for the COL have been met, it will make the finding required under 10 CFR 52.103(g).
In addition, as noted in comment number 28 of the June 4, 2002, staff response, the Commission is free to revisit the staffs § 52.99 determinations. Should the Commission obtain new information casting doubt on the earlier staff conclusions, or determine that there is an unresolved issue needing inspection or evaluation, it could revisit the staffs conclusions.
NEI Position 6 The Section 52.103(g) finding will be based collectively upon the individual determinations made under Section 52.99. The NRC will not need to perform any new or additional inspections or reviews to make its Section 52.103(g) finding (except as may be necessary to respond to a contention in a Section 52.103 hearing). NEI Paper at 23.
Staff Response As noted in the staff response to NEI Position 5, the staff does intend to perform a review to ensure that an ITAAC determination letter for each ITAAC has been received and that the staff agrees that all the ITAAC have been met. There is also the possibility that new and significant information could be received by the staff prior to the § 52.103(g) finding that brings the validity of the § 52.99 conclusions into question.Section III.D.4.e, Invalidation of Previously Accepted NRC ITAAC Interim Conclusions, of the construction inspection program framework document discusses this possibility and the staffs process for handling such information. The staff also notes that the Commission may reach conclusions different from those of the staff.
NEI Position 7 If issues are raised that cannot be resolved before fuel load, Section 52.103(c) provides that the Commission shall allow operation for an interim period provided, based on consideration of the outstanding issues, that there would be reasonable assurance of adequate protection of public health and safety. NEI Paper at 23.
Staff Response Section 52.103(g) requires the Commission to find that all the ITAAC are met before operation of the facility. Section 52.103(c) provides that, if a request for a hearing on the facilitys compliance with the ITAAC is granted, the Commission shall determine whether, during a period of interim operation, there will be reasonable assurance of adequate protection of the public health and safety. Section 52.103(c) provides further that if the Commission determines that there is such reasonable assurance, it shall allow operation during an interim period (until the Commission makes a final determination on the issues raised in the hearing) under the COL.
NEIs statement generally parallels the above provisions, through which the Commission may allow interim operation if it does not make the finding required under § 52.103(g) before fuel load, but does not reflect the provisions of § 52.103(d). Section 52.103(d) states that the Commission has discretion to determine the procedures to be used to resolve issues of compliance with the ITAAC in contention in a hearing using appropriate procedures.
NEI Position 8
[I]n the event there are unresolved hearing issues, the Commission mustin addition to the Section 52.103(g) findingalso make a finding under Section 52.103(c) allowing operation for an interim period. NEI Paper at 24.
Staff Response The staff disagrees with NEIs position. The Commission cannot make the § 52.103(g) finding if there are unresolved hearing issues. Under such circumstances, the Commission may allow interim operation under § 52.103(c), as discussed above in the staff response to NEI position 7.
NEI Position 9 As discussed in Section 8, after the Commission makes its Section 52.103(g) finding authorizing fuel load and operation, no further authorization by the NRC is required to proceed to full power and commercial operation. For example, no separate authorization is required to exceed 5% power. NEI Paper at 24.
Staff Response See staff response of NEI Position 5, above.
As a final note, NEI includes a diagram of the process. NEI Paper at 28. This diagram is correct to the extent it reflects the above discussion. The diagram, however, is inaccurate in several particulars, but the staff has not attempted to identify all such inaccuracies.
Combination List:
cc:
Mr. Charles Brinkman Westinghouse Electric Co.
Washington Operations 12300 Twinbrook Pkwy., Suite 330 Rockville, MD 20852 Mr. David Lochbaum, Nuclear Safety Engineer Union of Concerned Scientists 1707 H Street, NW, Suite 600 Washington, DC 20006-3919 Dr. Gail H. Marcus U.S. Department of Energy Office of Nuclear Energy, Science
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P.O. Box 2170 Clarksburg, West Virginia 26302-2170 Mr. James Blyth Canadian Nuclear Safety Commission 280 Slater Street, Station B P.O. Box 1046 Ottawa, Ontario K1P 5S9 Dr. Atambir S. Rao Project Manager, ESBWR GE Nuclear Energy 175 Curtner Avenue, MC 365 San Jose, CA 95125 USA Mr. Edward F. Sproat, III Vice President - Intl Projects Exelon Generation 200 Exelon Way Kennett Square, PA 19348 Mr. Vince Langman Licensing Manager Atomic Energy of Canada Limited 2251 Speakman Drive Mississauga, Ontario Canada L5K 1B2 Dr. Regis A. Matzie Senior Vice President and Chief Technology Officer Westinghouse Electric Company 2000 Day Hill Road Windsor, CT 06095-0500 Mr. Ed Wallace, General Manager Projects PBMR Pty LTD PO Box 9396 Centurion 0046 Republic of South Africa Mr. Dobie McArthur Director, Washington Operations General Atomics 1899 Pennsylvania Avenue, NW Suite 300 Washington, DC 20006