ML22074A264

Comment (2) of Jennifer Uhle on Behalf of Nuclear Energy Institute on Operational Leakage

ML22074A264
Person / Time
Site:	Nuclear Energy Institute
Issue date:	03/15/2022
From:	Uhle J Nuclear Energy Institute
To:	Office of Administration
References
87FR2361 00002, NRC-2021-0173
Download: ML22074A264 (24)

Text

3/15/22, 2:47 PM blob:https://www.fdms.gov/b35f563f-6725-4db7-bd7b-0ca1548a6e9e blob:https://www.fdms.gov/b35f563f-6725-4db7-bd7b-0ca1548a6e9e 1/1 PUBLIC SUBMISSION As of: 3/15/22 2:47 PM Received: March 15, 2022 Status: Pending_Post Tracking No. l0s-d2gq-l2un Comments Due: March 15, 2022 Submission Type: Web Docket: NRC-2021-0173 Operational Leakage Comment On: NRC-2021-0173-0002 Operational Leakage Document: NRC-2021-0173-DRAFT-0002 Comment on FR Doc # 2022-00686 Submitter Information Email:atb@nei.org

Organization:Nuclear Energy Institute General Comment See attached file(s)

Attachments 03-15-22_NRC_Industry Comments on Draft RIS Operational Leakage SUNI Review Complete Template=ADM-013 E-RIDS=ADM-03 ADD: Brian Benny, Mary Neely Comment (2)

Publication Date:

1/14/2022 Citation:87 FR 2361

DR. JENNIFER UHLE Vice President, Generation & Suppliers 1201 F Street, NW, Suite 1100 Washington, DC 20004 P: 202.739.8164 jlu@nei.org nei.org March 15, 2022 Office of Administration Mail Stop: TWFN-7-A60M U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 ATTN: Program Management, Announcements and Editing Staff Submitted via Regulations.gov

Subject:

Industry Comments on Draft Regulatory Issue Summary, Operational Leakage, 87 Fed. Reg. 2361 (Jan. 14, 2022) (Docket ID NRC-2021-0173)

Project Number: 689

Dear Program Management,

Announcements, and Editing Staff:

On behalf of its members, the Nuclear Energy Institute (NEI)1 appreciates the opportunity to review and comment on draft Regulatory Issue Summary (RIS) referenced above. We also appreciated the opportunity to discuss the draft RIS during the public meeting hosted by the NRC on January 25. For the reasons outlined below and discussed in the enclosure to this letter, we respectfully request that the NRC withdraw the draft RIS.

NEI and our members agree that when operational leakage is identified, the impact on Technical Specification (TS) operability must be evaluated. We also agree that the methods provided in Section XI of the ASME Code, as well as NRC-approved Code Cases, are one valuable tool that licensees may use to demonstrate the operability of Class 2 or 3 Structures, Systems, and Components (SSC) experiencing operational leakage.2 That said, contrary to the vague assertions and mandatory language used in the draft RIS, there are no legally binding requirements in Section XI of the ASME BPV Code, 10 CFR 50.55a, or the TS that require the exclusive use of Section XI flaw acceptance and evaluation methods to make an operability determination in response to operational leakage in Class 2 and 3 SSCs.

Thus, the draft RIS does not merely clarify or interpret existing NRC regulations or other legally binding requirements. Instead, the RIS effectively amends 10 CFR 50.55a to create and impose new requirements.

1 The Nuclear Energy Institute (NEI) is responsible for establishing unified policy on behalf of its members relating to matters affecting the nuclear energy industry, including the regulatory aspects of generic operational and technical issues. NEIs members include entities licensed to operate commercial nuclear power plants in the United States, nuclear plant designers, major architect and engineering firms, fuel cycle facilities, nuclear materials licensees, and other organizations involved in the nuclear energy industry.

2 The TS prohibit operational leakage in the reactor coolant system pressure boundary, which includes ASME Class 1 SSCs. Thus, operational leakage in Class 1 SSCs is generally prohibited by the TS and prescribed TS actions must be followed when such leakage is discovered. The arguments in these comments are limited to Class 2 and 3 SSCs, which do not constitute the reactor coolant system pressure boundary.

Office of Administration, Program Management, Announcements, and Editing Staff March 15, 2022 Page 2 Specifically, the draft RIS (as opposed to the NRCs regulations or plant TS) would require that the flaw acceptance and evaluation methods provided in Section XI to evaluate structural integrity in response to leakage discovered during inservice inspections and tests must also be applied to evaluate operational leakage in Class 2 and 3 SSCs to declare such SSCs operable.3 Characterizing amendments to existing requirements as mere clarifications or interpretations, and imposing them via a RIS, violates the Administrative Procedure Act 4 and undermines the agencys incorporation-by-reference process.5 In addition to violating the Administrative Procedure Act, this effective amendment of 10 CFR 50.55a would require changes to the procedures necessary to operate commercial power reactors and, thus, would meet the definition of backfitting provided in section 50.109(a)(1). Specifically, if the RIS is finalized, NEIs members have indicated that changes to both engineering and operations procedures governing operability determinations, functional evaluations, and the tracking of Limiting Conditions for Operations (LCO) would need to be modified to comply with the amended requirements communicated in the draft RIS. So, contrary to the boilerplate backfitting language included in the document, issuance of this RIS as currently drafted would meet the definition of backfitting and must be evaluated pursuant to the requirements of 10 CFR 50.109.

Given the discussion above, NEI and its members strongly oppose issuance of this RIS from a procedural standpoint. Specifically, if the NRC wishes to impose the position communicated in the draft RIS, then a notice-and-comment rulemaking amending 10 CFR 50.55a accompanied by a backfitting analysis is the appropriate regulatory process to achieve that end. We note that the NRC seemed to recognize that a notice-and-comment rulemaking was necessary to make this change, as they were considering amending 10 CFR 50.55a(g)(4) to expand the scope of Section XI to cover operational leakage as recently as early 2021.6 NEI communicated substantive objections to that change, as well as concerns about adherence to the Commissions backfitting requirements.7 These potential amendments to paragraph (g)(4) were discussed during several public meetings in late 2020 and early 2021.8 Ultimately, the NRC staff did not propose to include this change in its planned rulemaking.9 3 The only alternative to the use of these pre-approved methods offered in the draft RIS is for licensees to apply for approval of alternatives pursuant to 10 CFR 50.55a(z). Draft RIS, at pg. 3. But as the draft RIS notes, approval of such alternatives must be obtained prior to implementation by the licensee.

45 U.S.C. §§ 551(5), 553(b)-(d); see also Perez v. Mortg. Bankers Assn, 135 S. Ct. 1199, 1206 (2015) (agencies must use the same procedures when they amend or repeal a rule as they used to issue the rule in the first instance).

5 For example, the regulations published by the Office of Federal Register (OFR) clearly limit incorporation by reference of a standard to the edition of the publication that is approved by the Director of the OFR and explicitly states that future amendments to or revisions of the standard are not included. 1 CFR § 51.1(f). As commentators have pointed out, [t]his requirement of static incorporation is consistent with the purpose of the publication requirement because it ensures clear notice of regulatory requirements. Relatedly, it prevents confusion regarding the requirements of the law at any given point in time, both for the agency and for regulated parties. Incorporation by Reference in an Open-Government Age, 36 Harv. J.L. & Pub. Poly 131, 185 (2013). Clearly and explicitly articulating any substantive changes to the codes and standards being incorporated into 10 CFR 50.55a, like the requirement for static incorporation, ensures clear notice of regulatory requirements and prevents confusion regarding what NRC-made law actually requires.

6 See Letter from J. Uhle (NEI) to R.M. Taylor, Backfit Concerns with Proposed 10 CFR 50.55a Condition on Operational Leakage, Jan. 28, 2021 (NEI Letter).

7 Id. (arguing that the proposed amendment would unnecessarily conflate ASME Code compliance with operability determinations, result in unnecessary exigent requests for Code relief, and potentially unnecessary plant shutdown; and arguing that the amendment would impose a new legally binding requirement expanding the applicability of Section XI without evaluating the proposed amendment in accordance with the Commissions backfitting requirements).

8Public meetings were held on September 24, 2020 (ML20268A157 & ML20338A553) and January 19, 2021 (ML21019A294).

9 American Society of Mechanical Engineers 2019-2020 Code Editions: Proposed Rule, 57 Fed. Reg. 16087, 16096-97 (March 26, 2021).

Office of Administration, Program Management, Announcements, and Editing Staff March 15, 2022 Page 3 Instead, the NRC staff issued the draft RIS to achieve the desired regulatory outcome. This shift in regulatory approach is concerning because it indicates that the NRC may be elevating form over substance when choosing the proper regulatory process to impose such changes. We understand that issuing a RIS is less administratively onerous than amending a regulation. But the clarity and reliability of the NRCs regulatory framework depends, in large part, on adherence to the procedural requirements that must be met to amend the Commissions legally binding rules of general applicability. Characterizing amendments to the existing regulations as clarifications and using generic communications, such as Regulatory Issue Summaries, to communicate those amendments undermines the clarity and reliability of the Commissions regulations.

Putting our significant procedural concerns aside, NEI and its members also oppose imposition of the position articulated in the draft RIS on substantive grounds. Specifically, the draft RIS assumes that a formal evaluation of structural integrity, using Section XI or other pre-approved methods, is required in all cases when operational leakage in Class 2 or 3 SSCs causes a licensee to assess operability. As explained in the enclosure, this is an overgeneralization. Instead, current practices afford licensees with flexibility to use other technically justifiable methods to evaluate the operability of Class 2 or 3 SSCs in situations where methods described in the ASME Code (or other NRC-approved methods) do not exist, or are not otherwise practically applicable. These methods do not require prior NRC approval, but are subject to review by NRC, as part of the inspection process.

The inflexible approach to determining the operability of Class 2 and 3 SSCs described in the draft RIS could result in licensees prematurely and unnecessarily declaring TS SSCs inoperable and removing or isolating system trains or components from service, which is detrimental to plant safety and may result in unnecessary plant shutdowns. Instead, where technically justifiable methods exist to confirm that the licensee has reasonable assurance of operability of Class 2 or 3 SSCs, licensees should be permitted to use those methods to make time-sensitive operability determinations.

If you have any questions or require additional information, please contact Tom Basso at tbb@nei.org.

Sincerely, Jennifer Uhle Attachments cc:

Andrea Veil, NRR/NRC Andrea Kock, NRR/NRC Robert Taylor, NRR/NRC Mary Spencer, OGC/NRC Sheldon Clark, OGC/NRC

NEI Comments on draft Regulatory Issue Summary, Operational Leakage Page 1 I.

Introduction On January 14, 2022, the NRC issued a draft Regulatory Issue Summary entitled, Operational Leakage for public comment.1 The draft RIS purports to clarif[y] the NRC requirements for evaluation, control, and treatment of operational leakage in systems required to be operable by plant [technical specifications (TS)].2 Specifically, the draft RIS states:

The regulatory requirement of 10 CFR 50.55a(g) and TS clarified by this RIS is that structural integrity must be ensured for an ASME BPV Code Class 1, 2, or 3 component that is required to be operable according to the TS, and the only approved methods for doing so are provided in the ASME BPV Code, as incorporated by reference, in 10 CFR 50.55a, Codes and standards.3 Later, the draft RIS emphasizes that:

Operational leakage must be addressed in the same manner as leakage detected during an ASME BPV Code,Section XI, pressure test. Specifically, when operational leakage is found in a system that is within the scope of ASME BPV Code,Section XI, and that system is required to be operable by plant TS, the licensee must evaluate the component for operability. Structural integrity determinations must be conducted in accordance with the applicable provisions of the original construction code, ASME BPV Code,Section XI, or otherwise addressed through authorized methods.... These determinations necessitate an evaluation in accordance with an NRC-approved Code Case; use of Appendix U to ASME BPV Code,Section XI; or a repair/replacement activity.4 NEI and our members agree that when operational leakage is identified the impact on TS operability must be evaluated. However, we disagree with the draft RISs contention on how operability must be assessed. Contrary to the vague assertions and mandatory language used in the draft RIS, there are no legally binding requirements in Section XI of the ASME BPV Code, 10 CFR 50.55a, or the Technical Specifications (TS) that require use of Section XI flaw acceptance and evaluation methods to evaluate the structural integrity of Class 2 and 3 Structures, Systems, and Components (SSCs) in response to operational leakage to make an operability determination.5 1 Operational Leakage: Draft regulatory issue summary; public meeting and request for comment, 87 Fed. Reg. 2361; Jan. 14, 2022 (draft RIS).

2 Draft RIS, at pg. 3 (emphasis added).

3 Draft RIS, at pg. 2 (emphasis added).

4 Id. (emphasis added).

5 In contrast, we recognize that the TS prohibit operational leakage in the reactor coolant system pressure boundary, which includes ASME Class 1 SSCs. Thus, operational leakage in Class 1 SSCs is generally prohibited by the TS and prescribed TS actions must be followed when such leakage is discovered. The arguments in these comments are limited to Class 2 and 3 SSCs, which do not constitute the reactor coolant system pressure boundary.

NEI Comments on draft Regulatory Issue Summary, Operational Leakage Page 2 Thus, despite the statements to the contrary, the draft RIS does not merely clarify or interpret existing NRC regulations or other legally binding requirements. Instead, the RIS creates and imposes new requirements. Specifically, the draft RIS (as opposed to the NRCs regulations or plant TS) would require that the flaw acceptance and evaluation methods provided in Section XI to evaluate structural integrity in response to leakage discovered during inservice inspections and tests must also be applied to evaluate operational leakage in Class 2 and 3 SSCs to declare such SSCs operable.6 As explained more fully below, the text of Section XI of the ASME BPV Code is clear in communicating that the flaw acceptance and evaluation standards apply only to flaws discovered during the inspections and tests required by Section XI.7 Those portions of Section XI, by their own terms, do not apply to operational leakage. Both ASME and the NRC have acknowledged this fact.8 Section XI of the ASME BPV Code is, in turn, made binding on NRC power reactor licensees through the agencys incorporation of Section XI by reference in its regulations at 10 CFR 50.55a(a)(1)(ii). Thus, the requirements of Section XI incorporated by reference in section 50.55a are NRC requirements, equivalent to requirements developed by the agency and codified in other sections of Title 10 of the Code of Federal Regulations. Notice-and-comment rulemaking is required to amend those regulations.

The draft RIS claims that the NRC expanded the applicability of Section XI to address operational leakage through the notice-and-comment rulemaking process used to incorporate the Code by reference in section 50.55a. Thus, the draft RIS purports to communicate a clarification of the existing requirements, as opposed to an amendment of them. This is not the case. The text and structure of section 50.55a, as well as the associated regulatory history provide no support for such a position. Characterizing amendments to existing requirements as mere clarifications or interpretations, and imposing them via a RIS, violates the Administrative Procedure Act, 9 undermines the agencys incorporation-by-reference process,10 and inappropriately evades the Commissions backfitting requirements.11 6 The only alternative to the use of these pre-approved methods offered in the draft RIS is for licensees to apply for approval of alternatives pursuant to 10 CFR 50.55a(z). Draft RIS, at pg. 3. But as the draft RIS notes, approval of such alternatives must be obtained prior to implementation by the licensee.

7 See Section II.a below.

8 Id.

9 See, e.g., Christensen v. Harris County, 529 U.S. 576, 588 (2000)(where a regulation lacks ambiguity, deferring to an agency position that is inconsistent with the regulation would permit the agency, under the guise of interpreting a regulation, to create a de facto new regulation); Perez v. Mortgage Bankers Assn, 575 U.S. 92, 104-105 (2015)(confirming the Courts holding in Christensen that agency interpretations which conflict with the regulations they purport to interpret are substantively invalid); Shalala v. Guernsey Memorial Hospital, 514 U.S. 87, 100 (1995)(agreeing that an APA rulemaking is required in situations where an agency interpretation adopts a position that is inconsistent with the agencys existing regulations).

10 For example, the regulations published by the Office of Federal Register (OFR) clearly limit incorporation by reference of a standard to the edition of the publication that is approved by the Director of the OFR and explicitly states that future amendments to or revisions of the standard are not included. 1 CFR § 51.1(f). As commentators have pointed out, [t]his requirement of static incorporation is consistent with the purpose of the publication requirement because it ensures clear notice of regulatory requirements. Relatedly, it prevents confusion regarding the requirements of the law at any given point in time, both for the agency and for regulated parties. Incorporation by Reference in an Open-Government Age, 36 Harv. J.L. & Pub. Poly 131, 185 (2013).

Clearly and explicitly articulating any substantive changes to the codes and standards being incorporated into 10 CFR 50.55a, like the requirement for static incorporation, ensures clear notice of regulatory requirements and prevents confusion regarding what NRC-made law actually requires.

11 The NRC has acknowledged that the backfitting requirements in 10 CFR 50.109 apply [w]hen the NRC takes an exception to an ASME BPV or OM code provision and imposes a requirement that is substantially different from the current existing requirement as

NEI Comments on draft Regulatory Issue Summary, Operational Leakage Page 3 II.

There is No Legally Binding Requirement Mandating the Exclusive Use of Section XI Flaw Acceptance and Evaluation Methods to Determine Operability in Response to Discovery of Operational Leakage in Class 2 and 3 Components.

The provisions of 10 CFR 50.55a, Codes and Standards, incorporates-by-reference standards established by several national standard-setting organizations, including the American Society of Mechanical Engineers (ASME). The incorporation-by-reference process allows Federal agencies to draw on the expertise of private-sector standard developers, while complying with the requirement to publish rules in the Federal Register and Code of Federal Regulations.12 The legal effect of incorporating a consensus standard by reference in the Commissions regulations is that the standard becomes a legally binding requirement, just like the rest of the Commissions regulations published in 10 CFR Part 50.13 Further, the OFR, which is charged with overseeing the incorporation by reference process, has made it clear that incorporation by reference is not intended to detract from the legal or practical attributes of the...

Administrative Procedure Act... and the acts which require publication in the Federal Register."14 Thus, once a standard is incorporated by reference into section 50.55a, a rulemaking is necessary to amend that standard.15 Paragraph (a) of 10 CFR 50.55a identifies the codes and standards, ASME Code Cases, and NRC regulatory guides that have been approved by the OFR for incorporation by reference.

Section XI of the ASME BPV Code is incorporated by reference in 10 CFR 50.55a(a)(1)(ii). In paragraph (b) of 10 CFR 50.55a, the NRC describes how the codes identified in paragraph (a) must be used by licensees and applicants, as well as conditioning use of those codes where appropriate. Conditions on the use of Section XI are provided in 10 CFR 50.55a(b)(2)(i)-(xxxvii).

Finally, the preservice and inservice testing and inspection requirements are provided in paragraphs (f) and (g) of section 50.55a, respectively.

Determining whether the NRCs regulations require use of the flaw acceptance and evaluation criteria contained in Section XI in response to operational leakage requires: (1) an examination of the language of Section XI itself (which has become part of the NRCs regulations through incorporation-by-reference), and (2) an examination of the regulations in 10 CFR 50.55a, which incorporate Section XI by reference. As explained below, neither Section XI nor section 50.55a support the positions communicated in the draft RIS.

well as substantially different than the later code.... Regulatory Analysis Guidelines of the U.S. Nuclear Regulatory Commission, NUREG/BR-0058, Rev. 5 (April 2017), at Appendix D, pg. D-4.

12 IBR Handbook, Office of the Federal Register, Oct. 2017, at pg. 1 (IBR Handbook).

13 Id.

14 1 CFR § 51.1(c)(2).

15 5 U.S.C. §§ 551(5), 553(b)-(d). See also, 1 CFR § 51.1(f) (limiting incorporation by reference of a standard to the edition of the publication that is approved by the Director of the Office of the Federal Register and stating that future amendments to or revisions of the standard are not included). As commentators have pointed out, [t]his requirement of static incorporation is consistent with the purpose of the publication requirement because it ensures clear notice of regulatory requirements. Relatedly, it prevents confusion regarding the requirements of the law at any given point in time, both for the agency and for regulated parties. Incorporation by Reference in an Open-Government Age, 36 Harv. J.L. & Pub. Poly 131, 185 (2013).

NEI Comments on draft Regulatory Issue Summary, Operational Leakage Page 4

a. The Inservice Inspection Rules of Section XI - By Their Own Terms - Apply Only to Flaws Discovered During Section XI Inservice Inspections and Tests, Not to Flaws Identified at Other Times.

Except for the requirements for repair and replacement of SSCs within the scope of Section XI, the language of the code clearly communicates that the flaw acceptance and evaluation methods in Section XI apply only to flaws discovered in the context of inservice tests and inspections required by that section. For example, Division 1 of Section XI provides Rules for Inspection and Testing of Components of Light-Water-Cooled Plants. Subsection IWA, General Requirements, of Division 1 states: This Division provides requirements for inservice inspection and testing of light-water-cooled nuclear power plants.16 Article IWA-3000, Standards for Examination Evaluation, goes on to specify that [e]valuation shall be made of flaws detected during inservice examination as required by Article IWB-3000 for Class 1 pressure-retaining components, Article IWC-3000 for Class 2 pressure-retaining components, and Article IWD-3000 for Class 3 pressure-retaining components, or Article IWF-3000 for component supports.17 Likewise, Article IWA-3300, Flaw Characterization, specifies that it applies to flaws detected by preservice and inservice inspections.18 Finally, Subsections IWB, IWC, and IWD of Section XI all specifically state that they provide[] requirements for inservice inspection of Class, 1, 2, and 3 components, respectively.19 Notably, the authors of the Section XI knew how to explicitly communicate when they intended specific Articles to apply outside of the inservice inspection and testing context. For example, the scoping section of Article IWA-4000, Repair/Replacement Activities, specifies that [t]he requirements of this Article apply regardless of the reason for the repair/replacement activity or the method that detected the condition requiring the repair/replacement activity.20 Thus, there is no question that if a licensee is going to undertake a repair or replacement activity on an Class 2, or 3 component, that repair must conform to the requirements of Article IWA-4000 (or an approved alternative). But, as explained below in Section IV, operability determinations are evaluations of TS compliance, and do not constitute a repair or replacement activity. Thus, the requirements of Article IWA-4000 do not govern operability determinations. IWA-4000 would be relevant to the completion of corrective actions involving repair or replacement of Code components undertaken pursuant to Appendix B to 10 CFR Part 50 or other requirements.

Both ASME and the NRC have acknowledged the limited scope of Section XI. Specifically, the ASME Standards Committee for Section XI has pointed out repeatedly since the late 1980s that Section XI, by its own terms, does not apply outside of the course of an inservice inspection or a Section XI required pressure test. For example, during a January 19, 2021, public meeting, a 16 Section XI 2017 ASME Boiler and Pressure Vessel Code: Rules for Inservice Inspection of Nuclear Power Plant Components, at Article IWA-1100 (emphasis added)(Section XI).

17 Section XI, at Article IWA-3100, Evaluation, (emphasis added). As explained above, our argument regarding the applicability of Section XI when addressing operational leakage does not apply to Class 1 components because licensee TS do not permit through-wall leakage in those components.

18 Section XI, at Article IWA-3300(a).

19 See Section XI, at Article IWB-1100, IWC-1100, and IWD-1100.

20 Section XI, at Article IWA-4110 Scope.

NEI Comments on draft Regulatory Issue Summary, Operational Leakage Page 5 representative of the ASME Standards Committee for Section XI provided the NRC staff with several examples of ASME interpretations clearly communicating ASMEs position that, other than the repair/replacement requirements of Article IWA-4000, the flaw acceptance and evaluation provisions of Section XI are limited to flaws discovered during inservice inspection or testing.21 Notably, ASME characterizes these interpretations as Requirement Interpretations, which essentially rely on the plain language of the code; as opposed to Intent Interpretations, which, as the name implies, attempt to determine the intent of the code authors in order to resolve ambiguities and identify the need for future code changes to clarify that intent.22 Specific examples of such Requirement Interpretations provided during the January 19, 2021, public meeting include:

XI-1-89-67 Question: Is it a requirement of Section XI that additional examinations be performed for flaws detected outside the course of an inservice examination?

Reply: Section XI does not address additional exams for flaws detected outside the course of an inservice examination.

XI-1-92-03 Question: Do the provisions of IWA-5250 apply to leakage found at times other than during a system pressure test?

Reply: No.

XI-1-92-19 Question 1: For leakage identified during the conduct of a visual examination performed in conjunction with a Section XI required pressure test, are corrective measures required in accordance with IWA-5250(a) prior to continued service?

Reply 1: Yes.

Question 2: Does leakage identified during the conduct of normal plant operation, but not in conjunction with a Section XI required pressure test, require corrective measures in accordance with IWA-5250(a)?

Reply 2: No.Section XI, IWA-5250(a) does not apply during normal plant operation.23 21 Proposed New 10 CFR 50.55a Condition on Operational Leakage, NEI slide deck presented at NRC public meeting on Jan. 19, 2021, at slides 3-9 (ASME slides detailing Code provisions and ASME interpretations dating back to 1989 stating that Section XI does not address leakage detected outside of inservice examinations).

22 Id. at slide 6.

23 Id. at slide 7.

NEI Comments on draft Regulatory Issue Summary, Operational Leakage Page 6 The NRC has also acknowledged that Section XI does not apply to operational leakage. The NRCs understanding of the scope of Section XI is evident in a series of letters that document a nine-year exchange between ASME and the NRC regarding, in large part, the lack of formal ASME Code rules on operational leakage in nuclear power plants.24 Specifically, in a 2015 letter to ASME that concluded this exchange, the NRC acknowledged:

Current ASME Code,Section XI rules provide requirements when leakage is found during a pressure test in all components. However, it does not provide requirements, other than for repair/replacement activities, when a leak is found at a time not associated with a code required pressure test. Therefore, in view of ASMEs Pressure Boundary Leakage project teams conclusions, the NRC will evaluate the necessity of additional regulatory activities to address operational leakage.25 Thus, contrary to the language in the current revision of Inspection Manual Chapter 0326 stating it is the NRCs position that the provisions of the ASME BPV Code Section XI... are applicable at all times because they do not, by their own terms, limit application to ASME Code examinations,26 both the NRC and ASME have clearly acknowledged that Section XI does - by its own terms - limit its applicability to the context of inservice inspections and testing.

b. The Commissions Regulations at 10 CFR 50.55a Do Not Expand the Applicability of the Flaw Acceptance and Evaluation Requirements Contained in Section XI to Cover Operational Leakage.

Any changes to standards that are incorporated by reference must be clearly and explicitly communicated when those standards are incorporated into the Commissions regulations via the notice-and-comment rulemaking process. Indeed, there is an entire paragraph devoted to communicating conditions on use of Section XI, which can be found at 10 CFR 50.55a(b)(2).

Over 30 conditions applicable to implementation of Section XI are documented in 50.55a(b)(2).

24 Letter from B.E. Thomas (Codes and Standard Executive, NRC) to R. Hill, III (Vice President, Nuclear Codes and Standards, ASME), July 14, 2015 (2015 NRC Letter). See also, Letter from K.R. Balkey, PE (ASME) to J.A. Grobe (NRC), ASME Actions to Address Alloy 82/182/600 Materials and to Define Role of ASME Code in Ensuring Integrity of Pressure Retaining Components, June 10, 2006 (notifying NRC of the formation of an ASME Project Team to examine the role of the ASME Code in ensuring pressure boundary integrity and the role of the ASME Code in addressing operational leakage and operability); Letter from J.A.

Grobe (NRC) to K.R. Balkey (ASME), July 26, 2006 (requesting that the ASME Project Team provide senior NRC representatives to the ASME Codes and Standards groups an opportunity to discuss the Project Teams work and provide perspectives); Letter from M.G. Evans (NRC) to B.A. Erler (ASME), June 27, 2008 (expressing NRCs support for development of ASME code requirements that apply to leakage identified beyond the confines of inservice inspections); Letter from B.A. Erler (ASME) to M.G. Evans (NRC),

American Society of Mechanical Engineers Position on Leakage, Nov. 26, 2008 (stating Section XI Code currently does not address operational leakage and communicating the conclusion of the ASME Section XI Executive Committee that Section XI should be modified to provide requirements addressing operational leakage, but not operability because [o]perability determinations are the responsibility of the Owner.); Letter from R. Hill (ASME) to P. Hiland (NRC), Evaluation and Acceptance of Pressure Boundary Leakage - ASME Section XI, July 24, 2014 (providing information on a meeting to discuss ongoing work by ASME to address pressure boundary leakage, including the then yet-to-be-undertaken Phase II of the project to address the operational aspects of the topic including Code scope revisions....); Letter from R. Hill (ASME) to B. Thomas (NRC), ASME Code,Section XI Actions to Address Integrity of Pressure Retaining Components, March 23, 2015 (closing the work of the ASME Section XI Executive Committees Project Team, without making changes to the code to address operational leakage from Class 2 and 3 components).

25 2015 NRC Letter.

26 NRC Inspection Manual, Inspection Manual Chapter 0326: Operability Determinations, at pg. 19 (emphasis added) (Oct. 1, 2019).

NEI Comments on draft Regulatory Issue Summary, Operational Leakage Page 7 But the draft RIS doesnt point to paragraph (b)(2) to demonstrate that the agency made Section XI applicable to operational leakage because no such condition exists in paragraph (b)(2).

Instead, the draft RIS contains several vague references to requirements in 10 CFR 50.55a(g) indicating that paragraph broadly expands the scope of Section XI to address operational leakage.27 10 CFR 50.55a(g), Preservice and Inservice Inspections, contains six level 2 paragraphs, 17 level 3 paragraphs, seven level 4 paragraphs, 26 level 5 paragraphs, and 10 level 6 paragraphs.28 Thus, general references to paragraph 50.55a(g) are not specific enough to provide any transparency as to the regulatory position being communicated in the draft RIS.

That said, the most specific reference in the draft RIS in support of the argument that paragraph 50.55a(g) broadens the applicability of Section XI to cover operational leakage is found on page

2. Specifically, page 2 of the draft RIS references two 1996 NRC letters written to an individual stakeholder. The draft RIS states that, in these letters, the NRC staff explained that 10 CFR 50.55a(g)(4) provides the regulatory basis to address leakage in components, within the scope of Section 50.55a, during operation.29 Only one of the two letters, however, references paragraph 50.55a(g)(4).30 That letter states the following:

Section 50.55a, paragraph (g)(4) states, in part, that [t]hroughout the service life of a boiling or pressurized water-cooled nuclear power facility, components (including supports) which are classified as ASME Code Class 1, Class 2 and Class 3 must meet the requirements, except the design and access provisions and preservice examination requirements, set forth in Section XI... As such, the regulations would not be satisfied if deterioration has caused a breach (i.e., leakage) in the wall of components within the scope of Section 50.55a.31 While the draft RIS is unclear on this important point, it appears to rely on the Reedy Letter as support for the position that the throughout the service life language in paragraph (g)(4) modifies the scope of Section XI to make it broadly applicable to operational leakage (contrary to the language of Section XI itself). This is an obvious misreading of paragraph (g)(4).

The first sentence of 10 CFR 50.55a(g)(4) states, in full:

Throughout the service life of a boiling or pressurized water-cooled nuclear power facility, components (including supports) that are classified as ASME Code Class 1, Class 2, and Class 3 must meet the requirements, except design and access provisions and preservice examination requirements, set forth in Section XI of editions and 27 See, e.g., Draft RIS, at pg. 3 (Given the potential confusion between NRC requirements and ASME Code interpretations, the NRC staff seeks to clarify that 10 CFR 50.55a(g) includes regulatory requirements that apply to operational leakage for all licenses of boiling-and pressurized-water reactors.); Draft RIS, at pg. 2 (The regulatory requirement of 10 CFR 50.55a(g) and TS clarified by this RIS is that structural integrity must be ensured for an ASME BPV Code Class 1, 2, or 3 component that is required to be operable according to the TS, and the only approved methods for doing so are provided in the ASME BPV Code, as incorporate by reference, in 10 CFR 50.55a, Codes and standards.).

28 See 1 CFR 21.11, Standard organization of the Code of Federal Regulations.

29 Draft RIS, at pg. 2.

30 Letter from W.T. Russell (NRC) to R.F. Reedy (Reedy Associates, Inc.), Feb. 20, 1996 (Reedy Letter).

31 Reedy Letter, Encl. at pg. 4.

NEI Comments on draft Regulatory Issue Summary, Operational Leakage Page 8 addenda of the ASME BPV Code (or ASME OM Code for snubber examination and testing) that become effective subsequent to editions specified in paragraphs (g)(2) and (3) of this section and that are incorporated by reference in paragraph (a)(1)(ii) or (iv) for snubber examination and testing of this section, to the extent practical within the limitations of design, geometry, and materials of construction of the components.32 When read in context, this language simply communicates that power reactor licensees must meet the inservice inspection requirements provided in the editions and addenda of Section XI that become effective and are incorporated by reference into paragraph 50.55a(1)(ii) in the future (i.e., after the editions specifically referenced in 50.55a(g)(2) and (3) of the regulations).

This requirement - to come into compliance with subsequent addenda and editions of Section XI - applies throughout the service life of the facility. Stated differently, this language simply communicates that when new addenda and editions of the inservice inspection requirements are incorporated by reference, licensees must comply with those new addenda and editions (to the extent practical). This language in no way expands the applicability of Section XI to cover activities outside of the inservice inspection and testing context, such as operational leakage.

The plain language of paragraph 50.55a(g)(4) is consistent with the description in the 1976 final rule that substantially modified paragraph (g).33 Specifically, in that rulemaking, the Commission described the changes to paragraph (g) as follows:

The rule modifies inservice inspection requirements applicable to components of nuclear power plants throughout the service life of the facility. Examination and testing requirements that become effective in new editions and addenda of section XI of the ASME Code and are incorporated by reference in [section] 50.55a would become applicable to all operating plants to the degree practical. The Commission will review such code changes with respect to impact on the existing operating facilities prior to incorporating by reference any new editions and addenda of Section XI.34 The focus of paragraph 50.55a(g) was reinforced in the Commissions 1992 rulemaking that relocated the inservice testing requirements to section 50.55a(f).35 In that rulemaking, the Commission reiterated:

Section 50.55a(g) provides requirements for selecting the ASME Code edition and addenda of Section XI to be complied with during the preservice inspection... the initial 10-year inspection interval... and successive 10-year inspection intervals.

32 10 CFR 50.55a(g)(4)(emphasis added).

33Codes and Standards for Nuclear Power Plants and Technical information, 41 Fed. Reg. 6256 (Feb. 12, 1976).

34 Id. at 6257 (emphasis added).

35 Codes and Standard for Nuclear Power Plants, 57 Fed. Reg. 34666 (Aug. 6, 1992).

NEI Comments on draft Regulatory Issue Summary, Operational Leakage Page 9

[T]he Commission is reaffirming its intent that in all cases the existing requirements in 50.55a(g) be the basis for selecting the edition and addenda of Section XI to be complied with during the preservice inspection, initial 10-year inspection interval, and the successive 10-year inspection intervals.36 The language of 10 CFR 50.55a(g)(4) and the associated regulatory history in no way communicates the idea that the Commission intended to broadly expand the scope of Section XI of the ASME BPV Code to address operational leakage. Any such interpretation is not supported by the plain language of the regulations, is substantively invalid, and if allowed to stand would permit the agency, under the guise of interpreting a regulation, to create a de facto new regulation.37 If the NRC wishes to modify the requirements of 10 CFR 50.55a to broaden the scope of Section XI to cover operational leakage in Class 2 and 3 components, then the appropriate regulatory tool to accomplish that objective is a notice-and-comment rulemaking.

Such a requirement cannot simply be read into the existing regulations through vague references to a complex regulation like 10 CFR 50.55a(g).

We note that the NRC seemed to recognize that a notice-and-comment rulemaking was necessary to make this change, as they were considering amending 10 CFR 50.55a(g)(4) to expand the scope of Section XI to cover operational leakage as recently as early 2021.38 NEI communicated substantive objections to that change, as well as concerns about adherence to the Commissions backfitting requirements.39 These potential amendments to paragraph (g)(4) were discussed during several public meetings in late 2020 and early 2021.40 Ultimately, the NRC staff did not propose to include this change in its planned rulemaking.41 Instead, the NRC staff issued the draft RIS to achieve the desired regulatory outcome. Given the lack of any meaningful explanation of the current legally binding requirements in the draft RIS, this shift in regulatory approach is concerning to NEI and its members because it risks elevating form over substance when choosing the proper regulatory process to impose such changes. We understand that issuing a Regulatory Issue Summary is less administratively onerous than amending a regulation. But the clarity and reliability of the NRCs regulatory framework depends, in large part, on adherence to the procedural requirements that must be met to amend the Commissions legally binding rules of general applicability. Characterizing amendments to the existing regulations as clarifications and using generic communications, 36 Id. at 34671 (emphasis added).

37 Christensen v. Harris County, 529 U.S. 576, 588 (2000)(where a regulation lacks ambiguity, deferring to an agency position that is inconsistent with the regulation would permit the agency, under the guise of interpreting a regulation, to create a de facto new regulation).

38 See Letter from J.Uhle (NEI) to R.M. Taylor, Backfit Concerns with Proposed 10 CFR 50.55a Condition on Operational Leakage, Jan. 28, 2021 (NEI Letter).

39 Id. (arguing that the proposed amendment would unnecessarily conflate ASME Code compliance with operability determinations, result in unnecessary exigent requests for Code relief, and potentially unnecessary plant shutdown; and arguing that the amendment would impose a new legally binding requirement expanding the applicability of Section XI without evaluating the proposed amendment in accordance with the Commissions backfitting requirements).

40Public meetings were held on September 24, 2020 (ML20268A157 & ML20338A553) and January 19, 2021 (ML21019A294).

41 American Society of Mechanical Engineers 2019-2020 Code Editions: Proposed Rule, 57 Fed. Reg. 16087, 16096-97 (March 26, 2021).

NEI Comments on draft Regulatory Issue Summary, Operational Leakage Page 10 such as Regulatory Issue Summaries, to communicate those amendments undermines the clarity and reliability of those regulations.

c. The Generic Communications and Correspondence Cited in the Draft RIS do not Establish Legally Binding Requirements.

The draft RIS also asserts that several generic communications and letters communicate the requirement that the flaw acceptance and evaluation methods provided in Section XI (or an NRC-approved alternative to such methods) must be used to evaluate the operability of SSCs experiencing operational leakage.42 As shown above, however, no such requirement exists.

And, as a threshold matter, generic communications and letters from the NRC to individual stakeholders cannot establish such requirements. That said, we briefly address each of the documents referenced in the draft RIS below.

i. Generic Letter 90-05 Generic Letter 90-05 provides Guidance for Performing Temporary Non-Code Repair of ASME Code Class 1, 2, and 3 Piping.43 As indicated in the documents title, GL 90-05 primarily addresses the requirements of Article IWA-4000 of Section XI, Repair/Replacement Activities.44 As discussed above in Section II.a, we acknowledge that the requirements of IWA-4000 apply regardless of the reason for the repair/replacement activity or the method that detected the condition requiring the repair/replacement activity.45 There is no disagreement on this point. But GL 90-05 does not directly address the question of whether the other Articles of Section XI providing acceptance and evaluation methods for flaws discovered during inservice inspections or testing must also be used to evaluate flaws causing operational leakage.

Instead, the focus of GL 90-05 was to communicate the NRC staffs determination that temporary non-code repair of Class 3 piping that cannot be isolated without plant shutdown is justified in some instances,46 and to provide guidance on the evaluation of relief requests for approval of temporary non-code repairs of such piping.47 Thus, the generic letter addresses requirements related to corrective actions (i.e., repair or replacement of Class 3 piping), not the assessment of operability, which is discussed below in Section IV.

Further, the section of GL 90-05 entitled Backfitting explains:

The objective of this generic letter is to maintain structural integrity of repaired ASME Code piping. The staff is not imposing a new or different position. However, this generic letter provides guidance that will be considered by the NRC staff in evaluating relief 42 Draft RIS, at pg. 2.

43 Guidance for Performing Temporary Non-Code Repair of ASME Code Class 1, 2, and 3 Piping (Generic Letter 90-05), June 15, 1990 (GL 90-05).

44 GL 90-05, at pg. 2-3 (explaining the difference between code repairs required to restore structural integrity pursuant to Article IWA-4000 and temporary non-code repairs, which are not allowed by IWA-4000 and, thus, require prior approval from the NRC).

45 Section XI, at Article IWA-4110 Scope.

46 GL 90-05, at pg. 3.

47 Id. at Encl. 1.

NEI Comments on draft Regulatory Issue Summary, Operational Leakage Page 11 requests submitted by licensees for temporary non-code repairs of code Class 3 piping.

Compliance with the staff guidance is not required. Because the implementation guidance for Class 3 piping is voluntary, 10 CFR 50.109 does not apply.48 So, contrary to the statement in the draft RIS, GL 90-05 did not communicate requirements at all. Rather, it presented a voluntary approach to be used in evaluating relief requests seeking approval of temporary, non-code repairs of Class 3 piping.

ii. RIS 2005-20 and Associated Inspection Manual Chapters Revision 1 of RIS 2005-20 was issued to inform licensees that NRC had revised Inspection Manual Part 9900, Technical Guidance, Operability Determinations & Functionality Assessments for Resolution of Degraded and Nonconforming Conditions Adverse to Quality or Safety (OD Process). Specifically, Revision 1 relaxed a categorical NRC staff expectation communicated in Revision 0 of the RIS that licensees must consider a Class 2 or 3 component experiencing through-wall leakage immediately inoperable.49 Revision 1 responded to industry concerns regarding the staffs categorical default operability determinations and provided additional flexibility to licensees and guidance to inspectors when addressing through-wall leakage in Class 2 or 3 piping. Revision 2 of RIS 2005-20 was issued to announce that Inspection Manual Part 9900 had been reissued as Inspection Manual Chapter (IMC) 0326, Operability Determinations & Functionality Assessments for Conditions Adverse to Quality or Safety. Neither revision of the RIS purported to impose any requirements or require any action on the part of recipients.

In turn, the current revision of IMC-0326 states:

The NRC is aware that the ASME Section XI Executive Committee stated through Code Interpretations... that the corrective action requirements of the ASME Code Section XI IWA-5250 are not required to be implemented when leakage is found outside of the performance of an ASME Code required pressure test and VT-2 examination. However, it is the NRCs position that the provisions of the ASME BPV Code Section XI are incorporated by reference in 10 CFR 50.55a and are applicable at all times because they do not, by their own terms, limit application to ASME Code examinations.50 To the extent this passage in IMC-0326 is asserting that Section XI do[es] not, by [its] own terms, limit application to ASME Code examinations it is incorrect. As explained above in Section II.a, that assertion is inconsistent with the plain language of Section XI, with ASMEs position on the scope of Section XI, and with the NRCs explicit acknowledgement that Section XI does not provide requirements, other than for repair/replacement activities, when a leak is 48 Id. at pg. 4 (emphasis added).

49 NRC Regulatory Issue Summary 2005-20, Rev. 1, Revision to NRC Inspection Manual Part 9900 Technical Guidance, Operability Determinations & Functionality Assessments for Resolution of Degraded or Nonconforming Conditions Adverse to Quality or Safety, April 16, 2008.

50 NRC Inspection Manual, Inspection Manual Chapter 0326: Operability Determinations, at pg. 19 (emphasis added)(Oct. 1, 2019).

NEI Comments on draft Regulatory Issue Summary, Operational Leakage Page 12 found at a time not associated with a code required pressure test.51 To the extent that this passage in IMC-0326 attempts to amend 10 CFR 50.55a to expand the scope of Section XI, it is invalid. An amendment to a standard that has been incorporated by reference into Title 10 can only be accomplished via a notice-and-comment rulemaking.

iii. The Reedy Letters Finally, the draft RIS states that the NRC staffs positions on these issues were thoroughly documented in a series of letters in 1996 and that [i]n these letters, the NRC staff explained that 10 CFR 50.55a(g)(4) provides the regulatory basis to address leakage in components, within the scope of Section 50.55a, during operation.52 As explained above in Section II.b, the suggestion that the Commission expanded the scope of Section XI through the language in 10 CFR 50.55a(g)(4) is inconsistent with the plain language of paragraph (g)(4), and the regulatory history associated with paragraph (g) offers no support for it.53 Also, we note that these letters were addressed to an individual stakeholder - Mr. Reedy - that had written several letters to the NRC Chairman expressing concerns with the NRCs implementation of the ASME Code. Letters to individual stakeholders do not establish Commission policy and cannot be used to alter Commission regulations or consensus standards that have been adopted by reference by the Commission via the notice-and-comment rulemaking process.

III.

Expansion of the Scope of Section XI to Cover Operational Leakage from Class 2 and 3 Components Would Constitute Backfitting As demonstrated above in Section II, there is no current legally binding requirement mandating the exclusive use of Section XI flaw acceptance and evaluation methods to address operational leakage. The position put forward in the RIS does not interpret or clarify an existing legally binding requirement. Rather, if finalized, the draft RIS would impose a new or amended provision of the Commissions regulations that would result in modifications or additions to the procedures required to operate commercial power reactors.54 This not only meets the definition of backfitting in 10 CFR 50.109(a)(1) but is also specifically identified as backfitting in the NRCs guidance on application of the backfitting rule to the requirements of section 50.55a.

Backfitting is defined in 10 CFR 50.109(a)(1) as:

[T]he 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 51 2015 NRC Letter.

52 Draft RIS, at pg. 2.

53 Although the draft RIS refers to a series of letters, the document provides references to only two letters. See Letter from W.T.

Russell (NRC) to R.F. Reedy (Reedy Associates, Inc.), Feb. 20, 1996; Letter from J.M. Taylor (NRC) to R.F. Reedy (Reedy Associates, Inc.), April 11, 1996 Letter to Chairman Jackson, June 12, 1996. Of these two letters, only one - the February letter -

substantively addresses issues that are significantly related to the issues discussed in the draft RIS.

54 10 CFR 50.109(a)(1).

NEI Comments on draft Regulatory Issue Summary, Operational Leakage Page 13 regulatory staff position interpreting the Commission's regulations that is either new or different from a previously applicable staff position....

As demonstrated above in Section II.b, the position put forward in the draft RIS would amend, rather than interpret or clarify, 10 CFR 50.55a(g)(4). In addition to violating the Administrative Procedure Act,55 this effective amendment of the regulations would require changes to the procedures necessary to operate commercial power reactors and, thus, would meet the definition of backfitting provided in section 50.109(a)(1). Specifically, if the RIS is finalized, NEIs members have indicated that changes to both engineering and operations procedures governing operability determinations, functional evaluations, and the tracking of Limiting Conditions for Operations (LCO) would need to be modified to comply with the amended requirements communicated in the draft RIS. Thus, issuance of the RIS as currently drafted would meet the definition of backfitting.

Further, the NRC has explicitly acknowledged that the backfitting requirements in 10 CFR 50.109 apply [w]hen the NRC takes an exception to an ASME BPV or OM code provision and imposes a requirement that is substantially different from the current existing requirement as well as substantially different than the later code....56 Modifying paragraph 50.55a(g)(4) to expand the scope of Section XI to cover operational leakage is substantially different from the existing requirements of Section XI, which, as demonstrated above in Section II.a, are limited to addressing flaws detected during an inservice inspections and tests. In this case, ASME has not proposed modifying Section XI to cover operational leakage. Thus, according to the NRCs guidance, this change should be evaluated as backfitting prior to being imposed on licensees.

Finally, we note that we are not aware of any existing backfitting analysis evaluating the position communicated in the draft RIS - either as a new or different interpretation of the agencys regulations, or as a new or amended provision of the Commissions regulations. Thus, even if the assertions in the draft RIS are correct, it seems that this expansion of the scope of Section XI has evaded the required backfitting evaluation, regardless of when the position was first imposed on licensees (i.e., through finalization of this RIS, or at some unspecified point in the past). If the NRC decides to issue this RIS (despite the serious inadequacies explained in these comments), this lack of compliance with the Commissions backfitting requirements should be remedied prior to finalizing the document. Specifically, if finalized in its current form, the draft RIS would, for the first time, clearly and explicitly communicate the requirements described in the document via a generic communication to licensees. As explained above in Section II, none of the generic communications or letters cited in the draft RIS communicate the requirement that is communicated in the draft RIS. If they did, there would be no need for this RIS. Indeed, the stated purpose of the draft RIS is to provide a much needed clarification of the existing requirements. Thus, even if the requirements of 10 CFR 50.109 do not require a backfitting analysis (and they do), the NRC should perform a backfitting analysis as a matter of sound 55 5 U.S.C. §§ 551(5), 553(b)-(d); see also Perez v. Mortg. Bankers Assn, 135 S. Ct. 1199, 1206 (2015) (agencies must use the same procedures when they amend or repeal a rule as they used to issue the rule in the first instance).

56 Regulatory Analysis Guidelines of the U.S. Nuclear Regulatory Commission, NUREG/BR-0058, Rev. 5 (April 2017), at Appendix D, pg. D-4.

NEI Comments on draft Regulatory Issue Summary, Operational Leakage Page 14 policy prior to issuing a clarification that would require changes to licensee engineering and operations procedures impacting an important area like plant operability.

IV.

The Draft RIS Would Unnecessarily Eliminate Much Needed Flexibility that has been Inherent in Licensees Approach to Determining the Operability of Class 2 and 3 SSCs Experiencing Operational Leakage.

In addition to the concerns described above, there is another foundational problem with the position articulated in the draft RIS. Specifically, the draft RIS assumes that a formal evaluation of structural integrity, using Section XI or other pre-approved methods, is required in all cases when operational leakage in Class 2 or 3 SSCs causes a licensee to assess operability. As explained below, this is an overgeneralization. Instead, current practices afford licensees with flexibility to use other technically justifiable methods to evaluate the operability of Class 2 or 3 SSCs in situations where the methods described in the ASME Code (or other NRC-approved methods) do not exist or are not otherwise practically applicable. These methods do not require prior NRC approval, but are subject to review by NRC, as part of the inspection process.

a. Brief Background - Operability Determinations The terms operable and operability are not defined in 10 CFR Part 50 and there are no regulatory requirements that explicitly mandate licensees use a specific method of assessing the operability of plant SSCs. Rather, the terms Operable/Operability are defined in the TS contained in the operating license for each commercial nuclear power reactor. Specifically, the definition of Operable/Operability provided in the improved Standard Technical Specifications (STS) states:57 A system, subsystem, train, component, or device shall be OPERABLE or have OPERABILITY when it is capable of performing its specified safety function(s) and when all necessary attendant instrumentation, controls, normal or emergency electrical power, cooling and seal water, lubrication, and other auxiliary equipment that are required for the system, subsystem, train, component, or device to perform its specified function(s) are also capable of performing their related support function(s).58 This definition has not changed since the issuance of the improved STS in 1992. The requirement that certain plant SSCs remain operable is imposed in the TS through LCO.

Specifically, the LCO in each plants TS will identify the SSCs that must be operable during different modes of plant operation.

57 The TS of all operating plants contain either the definition of operability provided in Generic Letter 80-30, or the STS definition provided above. The majority of operating plant TS are based upon the improved STS, thus that definition will be used in these comments.

58 Standard Technical Specifications: Babcock and Wilcox Plans, NUREG-1430, Rev. 5.0, Vol 1, Specifications (Sept. 2021), at pg.

1.1-5; Standard Technical Specifications: Westinghouse Plants, NUREG-1431, Rev. 5.0, Vol 1, Specifications (Sept. 2021), at pg.

1.1-5; Standard Technical Specifications: Combustion Engineering Plants, NUREG-1432, Rev. 5.0, Vol. 1, Specifications (Sept.

2021), at pg. 1.1-5; Standard Technical Specifications: General Electric BWR/4 Plants, NUREG-1433, Rev. 5.0, Vol. 1, Specifications (Sept. 2021), at pg. 1.1-6; Standard Technical Specifications: General Electric BWR/6 Plants, NUREG-1434, Rev.

5.0, Vol. 1, Specifications (Sept. 2021), at pg. 1.1-6.

NEI Comments on draft Regulatory Issue Summary, Operational Leakage Page 15 Generally, an SSC is presumed operable when the associated TS surveillance requirements have been met.59 But when a deficient condition is discovered in an SSC that is required to be operable by a TS LCO, the licensee must determine whether the presumption of operability has been lost. If so, the licensee must decide whether the SSC remains operable or must be declared inoperable. Once the presumption of operability is lost, the determination of operability hinges on whether the SSC can continue to perform its specified safety function, despite the deficient condition.60 If the licensee determines that an SSC required to be operable by a TS LCO can no longer perform its specified safety function, then the licensee must declare the SSC inoperable. The licensee must then comply with the associated action statement provided in the TS. If that required action cannot be completed within the specified completion time, then the licensee must take the actions prescribed in the TS - up to and including shutting down the reactor.

Notably, an operability determination, which focuses on the ability of the SSC to continue to perform its specified safety function, is distinct from an evaluation of whether the SSC currently reflects its originally installed design configuration.

b. Determining Operability of Class 2 and 3 SSC Experiencing Operational Leakage As explained in NEI 18-03, Operability Determination, the assessment of operability at commercial power reactors is a continuous process. Upon discovery of a deficient condition, such as operational leakage in a Class 2 or 3 SSC that is required to be operable by a TS LCO, the licensee would first determine whether the presumption of operability has been lost.

The presence of operational leakage alone would not result in an automatic loss of the presumption of operability. Instead, the licensee would need to evaluate whether the operational leakage in question would result in a substantive functional impact (i.e., meet the three entry criteria provided in NEI 18-03).61 If so, then the licensee would enter the documented operability determination process and would perform an operability determination to assess whether the SSC can perform its specified safety function, despite the deficient condition (i.e., despite the operational leakage). As stated in the draft RIS, maintenance of the structural integrity of SSCs is important to the safe and effective operation of commercial power reactors. And, in some cases, the licensee may determine that a Section XI evaluation method is available and can be applied to demonstrate structural integrity is maintained, and that the licensee has reasonable assurance of operability. There are instances, however, where Code or other pre-approved flaw evaluation methods do not exist or cannot be practically applied to address operational leakage 59 Operability Determination, NEI 18-03 (Oct. 2019), at Section 3.8(NEI 18-03).

60 The term specified safety function is defined in NEI 18-03, at pg. 5. Notably, his term is not defined in the NRCs regulations or in the improved STS. Appendix B to NEI 18-03 provides a detailed explanation of the basis for this definition, which is consistent with the regulatory history of the STS and criteria used to identify SSCs for which LCOs are necessary.

61 Section 4.1 of NEI 18-03 provides three required entry criteria that, if met, would result in a conclusion that the presumption of operability has been lost. These criteria are: (1) the deficient condition must affect a TS SSC installed in an operating unit, (2) the deficient condition must have a functional impact on the SSC. This includes the ability to perform required safety functions under postulated, off-normal design conditions, and (3) the functional impact of the deficient condition must be substantive (i.e., non-trivial).

NEI Comments on draft Regulatory Issue Summary, Operational Leakage Page 16 in Class 2 or 3 components. In such cases, a licensee can still demonstrate that a Class 2 or 3 SSC can continue to perform its specified safety function (i.e., remains operable), despite experiencing operational leakage, using other technically justifiable approaches.

For example, licensees have experienced operational leakage in Class 3 raw water systems that result in through-wall seepage or pinhole leakage that cannot be evaluated by an NRC-approved Code Case,Section XI method, or non-mandatory Appendix U based on configuration, location (e.g., elbows, reducers), or component types (e.g., valve bodies, pump casings, socket welded joints). Licensees can often demonstrate that there is no impact on plant safety and TS operability remains through use of alternative analytical evaluation methods (engineering judgement, industry operating experience, etc.). Licensees will document this basis as part of an operability determination until corrective actions (e.g., repair/replacement activities) are planned and completed.

The position articulated in the draft RIS would prohibit a licensee from using an alternative evaluation approach to assess operability, which has been a long-established, acceptable practice in all matters related to operability. Instead, the draft RIS implies that licensees must declare the TS SSC inoperable and submit a relief request for NRC approval of an alternative evaluation method to restore operability, even for this example, where plant safety is not impacted, and it can be easily demonstrated that the condition has no impact system operability.

Another example involves one of the most common degradation mechanisms in raw water systems: Microbiologically Influenced Corrosion (MIC). This degradation mechanism is well understood, and the resulting characteristic localized pitting has been accepted many times, with significant margin, using the structural evaluation methods of ASME Code Case N-513, the Construction Code design analysis for unreinforced openings, or similar methods. When through-wall pinhole leakage is identified in stagnant or low flow carbon steel river water systems with a known propensity for MIC, an owner can utilize this long history of industry operating experience to infer the apparent cause with extremely high confidence and can provide reasonable assurance of the operability of the system without performing an emergent structural evaluation. This alternative evaluation may be particularly useful in situations where non-destructive examination flaw sizing data cannot be obtained due to component geometry, access limitations, or radiological safety concerns. The current wording of the draft RIS would prohibit a licensee from performing this alternative operability evaluation. Instead, it would require the utility to evaluate the structural integrity of the flaw using non-destructive examination data for flaw sizing, in compliance with the ASME Code requirements or an endorsed Code Case. Alternatively, the utility can declare the system inoperable, or submit an emergent request for alternative to the NRC.

Prematurely declaring TS SSC inoperable and removing/ isolating system trains or components from service is counter to plant safety and may result in unnecessary plant shutdowns. Instead, where technically justifiable methods exist to confirm that the licensee has reasonable

NEI Comments on draft Regulatory Issue Summary, Operational Leakage Page 17 assurance of operability, licensees should be permitted to use those methods to make time-sensitive operability determinations, as has been performed in the past.

There are other examples where operational leakage may occur (e.g., cooling water drain or instrument lines) and the condition does not affect the operability of the TS system or component, even assuming worse case or bounding conditions. In such cases, an operability determination may demonstrate that, even assuming maximum leakage from a sheared drain or instrument line, the system can continue to provide design flow to the cooled components, and that leakage from the sheared line is not impacting the operability or function of any adjacent equipment. This evaluation demonstrates that the TS system or component will continue to perform its specified safety function (i.e., remain operable), even though the structural integrity of the instrument line cannot be demonstrated using the methods provided in Section XI, approved Code Cases, or other NRC-approved methods.

NEI and its members agree that the methods provided in Section XI of the ASME Code, as well as NRC-approved Code Cases, are one valuable tool to demonstrate operability of Class 2 or 3 SSCs experiencing operational leakage. But no requirement identifiesSection XI or other pre-approved methods as the only tools available to licensees for making time-sensitive operability determinations in response to discovery of operational leakage. Neither Section XI, 10 CFR 50.55a, nor the TS require a formal demonstration of structural integrity using only Section XI (or other NRC-approved) methods to evaluate operability in every case where operational leakage is detected in a Class 2 or 3 component. Although it contains some concerning language on the applicability of Section XI (discussed above in Section II.c.ii), Inspection Manual Chapter 0326 recognizes the flexibility available to licensees when performing operability determinations, stating:

When performing ODs [Operability Determinations], licensees sometimes use analytical methods or computer codes different from those originally used in the calculations supporting the plant design. This practice involves applying engineering judgment to determine if an SSC remains capable of performing its specified safety function(s) during the corrective action period. The use of alternative methods for the purpose of evaluating operability is not subject to 10 CFR 50.59 unless the methods are used in the final corrective action. Section 50.59 is applicable upon implementation of the corrective action.62 The clarification the RIS attempts to make is inconsistent with the flexibility provided above, which allows the use of engineering judgement and alternative methods to make operability determinations.

In sum, when operational leakage from a Class 2 or 3 SSC is identified, a licensee is required to address the potential impacts on operability. The method or approach to assessing operability, including consideration of the structural integrity of the SSC that is required to remain operable, 62 Inspection Manual Chapter 0326, Operability Determinations (Oct. 1, 2019), at pg. 14.

NEI Comments on draft Regulatory Issue Summary, Operational Leakage Page 18 will depend on the specified safety function(s) that must be performed by the SSC; the technical evaluation methods available; and the nature, extent, and location of the leakage itself.

c. Relationship Between Operability Determinations, Corrective Actions Undertaken Pursuant to Appendix B to 10 CFR Part 50, and Repair/Replacement of Class 2 and 3 SSCs As described above, at its core, an operability determination is a decision made by a licensee regarding whether an SSC can continue to perform its specified safety function upon discovery of a deficient condition. Although sound operability determinations are important to ensure safe operation and compliance with plant TS, these determinations are not corrective actions or Section XI repair/replacement activities.

Corrective action and operability are distinct processes. The draft RIS and other NRC documents addressing this issue (e.g., RIS 2005-20, IMC 0326) often do not sufficiently recognize or address this distinction, which causes confusion. For instance, the draft RIS states that GL 90-05 is an approved method for demonstrating the operability of SSCs experiencing operational leakage.63 However, as explained above in Section II.c.i, the stated purpose of GL 90-05 is to provide licensees with an approach to evaluate and install a non-code temporary repair in Class 3 piping. Repair (permanent or temporary) is a corrective action to address the deficient condition, it is not an evaluation of the ability of the SSC to continue to perform its specified safety function (i.e., an operability determination).

Licensee Corrective Action Programs (CAPs) are designed to satisfy the requirements of 10 CFR 50, Appendix B, "Quality Assurance Criteria for Nuclear Power Plants and Fuel Reprocessing Plants." CAPs identify, track, and resolve conditions adverse to quality, including significant conditions adverse to quality. As described above, the scope of SSCs that must remain operable during plant operation are limited to those SSCs that are required to be operable by TS LCO (and those SSC which provide necessary support functions for such SSCs). The scope of Appendix B is broader and may include both SSCs required to remain operable pursuant to TS, and other SSCs not specifically addressed in the plants TS. Thus, Operability is not the only process that would need to be entered upon discovery of operational leakage in Class 2 or 3 SSCs. Licensees would also be required to evaluate the whether the leakage constitutes a condition adverse to quality and, if so, correct the condition in a timeframe commensurate with its safety significance.64 Such corrective action could include repair or replacement of the Class 2 or 3 SSC to address the operational leakage. As discussed above in Section II.a, any repair or replacement activities involving an SSC within the scope of Section XI of the ASME BPV Code must be conducted 63 Draft RIS, at pg. 3.

64 See 10 CFR Part 50, Appendix B, Quality Assurance Criteria for Nuclear Power Plants and Fuel Reprocessing Plants, at Criterion XVI.

NEI Comments on draft Regulatory Issue Summary, Operational Leakage Page 19 pursuant to the requirements of Article IWA-4000, regardless of when or how the leakage is detected.

In sum, the evaluation of operability is one important piece of the regulatory response to the discovery of operational leakage in Class 2 and 3 SSCs, but it is not the only piece. For example, if a Class 2 or 3 SSC were determined to be inoperable due to operational leakage, then TS compliance would drive the plants operational response. Likewise, the need to restore operability and ensure compliance with the requirements of Appendix B to 10 CFR Part 50 and other applicable requirements would drive the licensees identification and implementation of corrective actions. If the SSC were determined to be operable, then Appendix B (and any other applicable requirements) would still drive the licensees identification and implementation of corrective actions. Implementation of those corrective actions - in either scenario - would be managed through the licensees CAP. If those corrective actions included or required repair or replacement of a Class 2 or 3 SSC, then those actions must be conducted in accordance with Article IWA-4000 of Section XI or NRC approved Code Cases or alternatives.

While there are synergies between operability determination process, Appendix B, the CAP, and repair/replacement that ensure that deficient conditions are addressed in a safe and efficient manner, these processes and regulatory requirements should not be conflated. Doing so creates confusion and could result in the processing of unnecessary exigent requests for NRC approval of alternatives, or even unnecessary plant shutdowns.

V.

Conclusion As explained above, NEI and our members agree that when operational leakage is identified the impact on TS operability must be evaluated. We also agree that the methods provided in Section XI of the ASME Code, as well as NRC-approved Code Cases, are one of the many valuable tools that may be used to demonstrate operability of Class 2 or 3 SSCs experiencing operational leakage. That said, no legally binding requirement identifiesSection XI or other pre-approved methods as the only tools available to licensees for making time-sensitive operability determinations in response to discovery of operational leakage in Class 2 or 3 SSCs.

Specifically, neither Section XI, 10 CFR 50.55a, nor the TS require a formal demonstration of structural integrity using only Section XI (or other NRC-approved) methods to evaluate operability, in every case where operational leakage is detected in a Class 2 or 3 component.

Finalizing the draft RIS in its current form could result in licensees prematurely and unnecessarily declaring TS SSC inoperable and removing/ isolating system trains or components from service, which is detrimental to plant safety and may result in unnecessary plant shutdowns. It would also constitute unanalyzed backfitting, contrary to the requirements of 10 CFR 50.109. Instead, where technically justifiable methods exist to confirm that the licensee has reasonable assurance of operability of Class 2 or 3 SSCs, licensees should be permitted to use those methods to make time-sensitive operability determinations, as has been the case in the past.

NEI Comments on draft Regulatory Issue Summary, Operational Leakage Page 20 For the reasons described above, the draft RIS should be withdrawn. If the NRC wishes to pursue imposing the requirement discussed in the draft RIS, then notice-and-comment rulemaking supported by a backfitting analysis is the required regulatory process.