ML21288A130
| ML21288A130 | |
| Person / Time | |
|---|---|
| Site: | Nuclear Energy Institute |
| Issue date: | 10/14/2021 |
| From: | Uhle J Nuclear Energy Institute |
| To: | NRC/SECY |
| SECY/RAS | |
| References | |
| 86FR34999, NRC-2017-0029, PR-52 | |
| Download: ML21288A130 (7) | |
Text
From: O"NEILL, Martin To: RulemakingComments Resource Cc: UHLE, Jennifer; Andrukat, Dennis; Lauron, Carolyn
Subject:
[External_Sender] Docket ID: NRC-2017-0329 [RIN 3150-AJ98] -- NEI Comments in Response to Proposed Rule
- NuScale Small Modular Reactor Design Date: Thursday, October 14, 2021 6:54:18 PM Attachments: NEI Comments on Proposed NuScale SMR Design Certification Rule_PDF (10-14-2021).pdf
Dear NRC Rulemakings and Adjudications Staff,
On behalf of Dr. Jennifer Uhle, Vice President, Generation and Suppliers, Nuclear Energy Institute (NEI), please find attached to this email NEIs comments submitted in response to the NRCs NuScale Small Modular Reactor Design Certification; Proposed Rule, 86 Fed. Reg. 34999 (July 1, 2021), for which the comment period was extended to October 14, 2021 by Federal Register Notice dated August 24, 2021 (86 Fed. Reg. 47251). Please confirm receipt of these comments.
Please feel free to contact Dr. Uhle or me by email or phone if you have any questions regarding this submittal. NEI appreciates the opportunity to submit comments.
- Regards, Martin ONeill Martin J. ONeill l Associate General Counsel Nuclear Energy Institute 1201 F Street NW, Suite 1100 l Washington, DC 20004 M: 240.305.0331 l mjo@nei.org l www.nei.org This electronic message transmission contains information from the Nuclear Energy Institute, Inc. The information is intended solely for the use of the addressee and its use by any other person is not authorized. If you are not the intended recipient, you have received this communication in error, and any review, use, disclosure, copying or distribution of the contents of this communication is strictly prohibited. If you have received this electronic transmission in error, please notify the sender immediately by telephone or by electronic mail and permanently delete the original message. IRS Circular 230 disclosure: To ensure compliance with requirements imposed by the IRS and other taxing authorities, we inform you that any tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties that may be imposed on any taxpayer or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
DR. JENNIFER L. UHLE Vice President, Generation and Suppliers 1201 F Street, NW, Suite 1100 Washington, DC 20004 P: 202.713.8164 jlu@nei.org nei.org October 14, 2021 Secretary of the Commission ATTN: Rulemakings and Adjudications Staff U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Submitted Via Rulemaking.Comments@nrc.gov
Subject:
NEI Comments in Response to Proposed Rule - NuScale Small Modular Reactor Design Certification [Docket ID: NRC-2017-0329] [RIN 3150-AJ98]
On July 1, 2021, the U.S. Nuclear Regulatory Commission (NRC) published in the Federal Register a proposed rule that would amend 10 CFR Part 52 to certify the NuScale standard design for a small modular reactor (SMR). 1 The proposed rule, which would add a new Appendix G to Part 52, is the culmination of a robust design certification review process that commenced with the NRCs docketing of NuScales SMR design certification application on March 30, 2017. In August 2020, the NRC staff completed its review and issued the final safety evaluation report (FSER) for the NuScale standard plant design application, and subsequently recommended that the Commission approve the proposed design certification rule (DCR) for public comment. 2 The Commission approved publication of the proposed DCR by a Staff Requirements Memorandum dated May 6, 2021 (ML21126A153).
The Nuclear Energy Institute (NEI) 3 is providing these comments in response to the proposed design certification rule. 4 As explained below, NEIs comments, while not necessarily seeking modifications to the proposed rule, request clarification regarding a regulatory interpretation issue identified by 1
NuScale Small Modular Reactor Design Certification; Proposed Rule, 86 Fed. Reg. 34,999 (July 1, 2021).
2 See SECY-21-0004, Proposed Rule: NuScale Small Modular Reactor Design Certification (RIN 3150-AJ98)
(NRC-2017-0329) (Jan. 14, 2021) (ML19353A003).
3 The Nuclear Energy Institute (NEI) is the organization responsible for establishing unified industry policy on matters affecting the nuclear energy industry, including the regulatory aspects of generic operational and technical issues. NEI's members include entities licensed to operate commercial nuclear power plants in the U.S., nuclear plant designers, major architect/engineering firms, fuel cycle facilities, nuclear materials licensees, and other organizations and entities involved in the nuclear energy industry.
4 The public comment period originally was scheduled to close on August 30, 2021. The NRC extended the comment period by 45 days to October 14, 2021 to allow more time for members of the public to develop and submit their comments. See 86 Fed. Reg. 47,251 (Aug. 24, 2021).
NRC Rulemakings and Adjudications Staff October 14, 2021 Page 2 former Commissioner Caputo in her comments on SECY-21-0004. 5 Specifically, Commissioner Caputo stated, in pertinent part:
In preparing the draft proposed rule, the staff used language that has been consistently used in design certification rulemakings since the initial issuance of the design certificate rule for the U.S. Advanced Boiling Water Reactor in 1997. Changes to the design certification process over the years, however, have led to a mismatch between the definition of backfitting in the Backfit Rule, 10 CFR 50.109, and the backfitting provisions for generic technical specifications and other operational requirements in paragraph Vlll.C.1 of this proposed rule. To ensure consistency and clarity in the application of this section in future design certifications, section VIII.C.1 should continue to be interpreted such that changes to generic technical specifications and approved operational requirements would be subject to the Backfit Rule.
We expect future advanced reactor applicants to address additional operational requirements in design. As a result, there needs to be regulatory predictability in how backfitting or issue finality works in this area. The staff should therefore memorialize in a durable, publicly available document the interpretation of how changes to generic technical specifications and approved operational requirements would be subject to the Backfit Rule. 6 Commissioner Caputo proposed some related revisions to the Operational Requirements discussion in the Statements of Consideration (SOC) of the draft proposed rule.
NEI does not view this fact as constituting a major flaw in the proposed NuScale DCR. Nonetheless, in the interest of promoting greater regulatory clarity and certainty, NEI agrees that the backfitting/issue finality issue identified by Commissioner Caputo warrants clarification. NEI therefore suggests that the NRCs response to these comments serve as the durable, publicly available document that memorializes the NRCs interpretation of how changes to generic technical specifications and approved operational requirements would be subject to the Backfit Rule. Given the generic nature or implications of this issue (it involves certain NRC Part 52 regulations and language that appears in multiple design certification rulemakings), the NRC also might consider addressing the issue within the context of a broader generic rulemaking; e.g., the ongoing Part 5
NEI notes that former NRC Chairman Kristine Svinicki raised a similar issue in her comments (ML21012A364) on SECY-20-0112, in which the NRC staff sought Commission approval to publish a direct final rule to renew the certification for the U.S. Advanced Boiling Water Reactor (ABWR) standard design.
6 Commissioner Caputos Comments on SECY-21-0004: Proposed Rule: NuScale Small Modular Reactor Design Certification (RIN 3150-AJ98; NRC-2017-0329) (Apr. 15, 2021) (ML21109A238) (emphasis added).
NRC Rulemakings and Adjudications Staff October 14, 2021 Page 3 50/52 lessons learned rulemaking, for which the NRC staff has issued a draft regulatory basis document. 7 The specific clarifications sought by NEI involve the interrelationships among several discrete provisions within Part 52 and the proposed NuScale DCR. They include:
- 10 CFR 50.109(a) (Backfitting), which states, in relevant part:
(a)(1) Backfitting is defined as the modification of or addition to systems, structures, components, or design of a facility; or the design approval or manufacturing license for a facility; or the procedures or organization required to design, construct or operate a facility; any of which may result from a new or amended provision in the Commission's regulations or the imposition of a regulatory staff position interpreting the Commission's regulations that is either new or different from a previously applicable staff position . . . . (Emphasis added).
- 10 CFR 52.63(a)(5) (Finality of standard design certifications), which states in full:
(5) Except as provided in 10 CFR 2.335, in making the findings required for issuance of a combined license, construction permit, operating license, or manufacturing license, or for any hearing under § 52.103, the Commission shall treat as resolved those matters resolved in connection with the issuance or renewal of a design certification rule.
- Section VI.C under Section VI (Issue Resolution) of the proposed NuScale DCR (Appendix G), which states in full:
C. The Commission does not consider operational requirements for an applicant or licensee who references this appendix to be matters resolved within the meaning of
§ 52.63(a)(5). The Commission reserves the right to require operational requirements for an applicant or licensee who references this appendix by rule, regulation, order, or license condition.
- Section VIII.C.1 (Operational Requirements) under Section VIII (Processes for Changes and Departures) of the proposed NuScale DCR (Appendix G), which states in full:
- 1. Changes to NuScale design certification generic TS and other operational requirements that were completely reviewed and approved in the design certification rule and do not require a change to a design feature in the generic DCD are governed by the requirements in 10 CFR 50.109. Changes that require a change to a 7
See Alignment of Licensing Processes and Lessons Learned from New Reactor Licensing, Regulatory Basis for Public Comment, RIN No. 3150-AI66, Docket ID No. NRC-2009-0196 (Jan. 15, 2021) (ML20149K680).
For instance, the NRC could amend 10 CFR 50.109(a) to explicitly reference design certifications.
NRC Rulemakings and Adjudications Staff October 14, 2021 Page 4 design feature in the generic DCD are governed by the requirements in paragraphs A or B of this section. (Emphasis added).
- Section VIII.C.4 (Operational Requirements) under Section VIII (Processes for Changes and Departures) of the proposed NuScale DCR (Appendix G) which states, in relevant part:
- 4. An applicant who references this appendix may request an exemption from the generic TS or other operational requirements.
Application of these regulations may engender some potential confusion so as to warrant clarification by the NRC. First, 10 CFR 50.109(a) refers explicitly to design approvals but not to design certifications. The NRC appears to have addressed this issue through the above-quoted language of Section VIII.C.1 of Appendix G, which provides that the backfitting requirements in 10 CFR 50.109 apply to changes to NuScale design certification generic technical specifications and other operational requirements that were completely reviewed and approved in the DCR and do not require a change to a design feature in the generic DCD. The SOC to the NuScale DCR elaborates on this point:
The process in paragraph VIII.C.1 for making generic changes to the generic technical specifications in Chapter 16 of the DCD or other operational requirements in the generic DCD would be accomplished by rulemaking and governed by the backfit standards in § 50.109. The determination of whether the generic technical specifications and other operational requirements were completely reviewed and approved in the design certification rule would be based upon the extent to which the NRC reached a safety conclusion in the [FSER] on this matter. If a technical specification or operational requirement was completely reviewed and finalized in the design certification rule, then the requirement of § 50.109 would apply because a position was taken on that safety matter. Generic changes made under paragraph VIII.C.1 would be applicable to all applicants or licensees (refer to paragraph VIII.C.2), unless the change is irrelevant because of a plant-specific departure. 8 Thus, while Section 50.109(a)(1) does not mention design certifications specifically, the language of Section VIII.C.1 of Appendix G expressly incorporates the requirements in 10 CFR 50.109 into the change process described therein. In essence,Section VIII.C.1 could be viewed as, or at least akin to, a rule of particular applicability, the promulgation of which is well within the NRCs rulemaking authority under the Atomic Energy Act (AEA) and the Administrative Procedure Act (APA). 9 That is, 8
86 Fed. Reg. at 35,010 (emphasis added).
9 See 5 USC 551(4) (defining a rule as the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy); NLRB v.
Wyman-Gordon Co., 394 U.S. 759, 772 (1969) (Black, J., concurring) ([S]o long as the matter involved can be dealt with in a way satisfying the definition of either rule making or adjudication under the Administrative Procedure Act, that Act . . . should be read as conferring upon the [agency] the authority to decide, within its informed discretion, whether to proceed by rule making or adjudication.).
NRC Rulemakings and Adjudications Staff October 14, 2021 Page 5 while Section VIII.C.1 does apply to all applicants/licensees who reference Appendix G, the change process described therein is specific to the NuScale DCR. NEI requests that the NRC confirm that NEIs understanding is consistent with the NRCs intent in Section VIII.C.1 of Appendix G.
A second and related issue on which NEI seeks clarification concerns the NRCs intent in Section VI.C of Appendix G, which provides that [t]he Commission does not consider operational requirements for an applicant or licensee who references this appendix to be matters resolved within the meaning of § 52.63(a)(5). This provision, at least on its face, appears to be in tension with Section VIII.C.1, which, as discussed above, affords backfit protection to certain NuScale design certification generic technical specifications and other operational requirements that were completely reviewed and approved in the DCR, and Section VIII.C.4, which requires an exemption for an applicant referencing the appendix to depart from the operational requirements imposed by the DCD. That is, an interpretation of the rule that would withhold issue resolution, but grant backfit protection and require exemptions for departures from unresolved matters, seems inconsistent.
NEI believes that this ostensible inconsistency is resolved by reading Section VI.C to apply to operational requirements that were not completely reviewed and approved in the NuScale DCR, and which the NRC, in its sound technical discretion, may conclude are necessary to impose on an applicant or licensee who references Appendix G in a future application. This interpretation appears to be consistent with statements in the SOC for the NuScale DCR. For example, the SOC notes that Section VI.C reflects the fact that only some operational requirements, including portions of the generic technical specification in Chapter 16 of the DCD, were completely or comprehensively reviewed by the NRC in this design certification proposed rule proceeding. 10 The SOC further explains that:
Also, paragraph VI.C allows the NRC to impose future operational requirements (distinct from design matters) on applicants who reference this design certification.
License conditions for portions of the plant within the scope of this design certification (e.g., startup and power ascension testing) are not restricted by
§ 52.63. The requirement to perform these testing programs is contained in the Tier 1 information. However, ITAAC cannot be specified for these subjects because the matters to be addressed in these license conditions cannot be verified prior to fuel load and operation when the ITAAC are satisfied. In the absence of detailed design information to evaluate the need for and develop specific post-fuel load verifications for these matters, the NRC is reserving the right to impose, at the time of COL issuance, license conditions addressing post-fuel load verification activities for portions of the plant within the scope of this design certification. 11 Thus, while Section VI.C and Section VIII.C.1 of Appendix G both refer to operational requirements, they appear to address different circumstances and serve disparate functions, with 10 86 Fed. Reg. at 35008.
11 Id.
NRC Rulemakings and Adjudications Staff October 14, 2021 Page 6 the latter provision providing backfit protection for generic operational requirements that were completely reviewed and approved in the design certification rule.
The NuScale design certification addresses many more operational requirements than were considered in the early design certifications. For example, important operational requirements such as minimum operator staffing and containment leakage rate testing were completely reviewed and approved in the NRC staffs FSER. Applicants expend significant resources addressing these operational requirements and, as Commissioner Caputo noted, it is reasonable to expect future advanced reactor applicants to address additional operational requirements in design. Therefore, it is imperative that design certification and COL applicants understand the applicability of the issue resolution, finality, and change and departure provisions of a design certification rule. NEI believes that issue resolution should be afforded where the NRC staff have completed their safety review and the public has been afforded an opportunity to comment. If the NRC disagrees with NEIs above interpretation that issue resolution should be afforded in these circumstances, then it should document its conclusion in response to this letter. However, the NRC should revisit these provisions for operational requirements on a generic basis, and in a manner that does not impact the NuScale DCR schedule.
In conclusion, NEI believes the clarifications sought herein are warranted, particularly given the potential for future advanced reactor developers to address additional operational requirements (e.g., emergency planning, physical security) as part of the design process. This underscores the need for regulatory clarity and certainty with regard to how backfitting or issue finality works in this area.
Please contact me or Martin ONeill, NEI Associate General Counsel (mjo@nei.org), if you have any questions regarding these comments.
Sincerely, Jennifer L. Uhle C: Dennis Andrukat, NMSS/REFS/RRPB Carolyn Lauron, NRR/DNRL/NRLB