ML22349A101
| ML22349A101 | |
| Person / Time | |
|---|---|
| Site: | Nuclear Energy Institute |
| Issue date: | 12/12/2022 |
| From: | Ginsberg E Nuclear Energy Institute |
| To: | Marian Zobler NRC/OGC |
| Shared Package | |
| ML22349A102 | List: |
| References | |
| LTR-22-0343 | |
| Download: ML22349A101 (1) | |
Text
Ellen C. Ginsberg Sr. Vice President, General Counsel and Secretary 1201 F Street NW, Suite 1100 Washington, DC 20004 202.739.8140 ecg@nei.org nei.org December 12, 2022 BY EMAIL AND U.S. MAIL Marian L. Zobler General Counsel Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, DC 20555-0001
Subject:
Remaining Concerns Related to Issuance of Regulatory Issue Summary 2022-02: Operational Leakage
Dear Ms. Zobler:
I am writing to request a fuller explanation of the Nuclear Regulatory Commissions (NRC) regulatory basis for the position articulated in Regulatory Issue Summary 2022-02 (RIS 2022-02).1 The RIS requires that the flaw acceptance and evaluation methods provided in Section XI of the ASME Code and used to evaluate leakage discovered during inservice inspections and tests, must also be applied to evaluate leakage discovered in Class 2 and 3 structures, systems, and components (SSC) at other times (i.e., operational leakage) in order to declare such SSCs operable.2 NEI and its members disagree with the NRCs position that the methods provided in Section XI are the only methods available to licensees without prior NRC approval when evaluating operability. Specifically, the NRCs position is a misreading of 10 CFR 50.55a(g)(4) that is at odds with the plain language of that paragraph. There are no legally binding requirements in 10 CFR 50.55a (or elsewhere in the Commissions 1
Operational Leakage, Regulatory Issue Summary; issuance, 87 Fed. Reg. 68335 (Nov. 15, 2022).
2 The only alternative to the use of these pre-approved Code methods offered in the RIS is for licensees to apply for approval of alternatives pursuant to 10 CFR 50.55a(z). RIS 2022-02, at pp. 3-4. NRC approval for such alternatives would need to be obtained by the licensee prior to implementation. Also, we acknowledge (as we did in our comments on the Draft RIS) that the technical specifications 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 our previous comments and in this letter are limited to Class 2 and 3 SSCs, which do not constitute the reactor coolant system pressure boundary.
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NUCLEAR ENERGY INSTITUTE NUCLEAR CARBON-FREE ENERGY
Nuclear Energy Institute 2
regulations) that require the exclusive use of Section XI flaw acceptance, evaluation, and corrective action methods to make an operability determination in response to operational leakage in Class 2 and 3 SSCs.
NEI has submitted several comment letters raising concerns regarding the NRC staffs reading of 10 CFR 50.55a(g)(4). We have also met and corresponded with the Committee to Review Generic Requirements (CRGR) on this topic.3 While the NRC provided some analysis of public comments,4 that discussion is not responsive to NEIs view that the agencys interpretation of paragraph (g)(4) is inconsistent with both the plain language and associated regulatory history of that paragraph.5 In its comment response, the NRC quotes a sentence fragment from paragraph (g)(4) and attributes a meaning to that fragment that is inconsistent with the plain meaning of the paragraph when read in full. The remainder of the agencys comment response focuses on examples of instances where it may have taken a position like the position described in RIS 2022-02 in the past (often relying upon the same sentence fragment from paragraph (g)(4) quoted in response to NEIs comment).6 But the agencys citing to several examples relying on this flawed position does not cure its flaws.
Specifically, the NRC states:
10 CFR 50.55a(g)(4) mandates the use of ASME BPV Code,Section XI, (or an approved code case) [t]hroughout the service life of a boiling or pressurized water-cooled nuclear power facility. This means that licensees subject to 10 CFR 50.55a(g) are not, at any time during the service life of their facility, permitted to deviate from the requirements of the applicable Section XI requirements, as incorporated by reference in § 50.55a, without relief, an approved alternative, or an exemption.7 Both ASME and the NRC have acknowledged that the flaw evaluation and acceptance provisions of Section XIby their own termsdo not apply to operational leakage.8 The NRC staff does not seem to dispute that point, but nonetheless interprets the throughout the service life language in paragraph (g)(4) as expanding the applicability 3 See Letter from J. Uhle (NEI) to R.M. Taylor (NRC) Backfit Concerns with Proposed 10 CFR 50.55a Condition on Operational Leakage, (Jan. 28, 2021)(January NEI Letter); Industry Comments on Draft Regulatory Issue Summary, Operational Leakage, 87 Fed. Reg. 2361 (Jan. 14, 2022), (March 15, 2022)(NEI Comment Letter); Letter from J. Uhle (NEI) to S. Coffin (NRC) May 13, 2022, Public Meeting on Draft Regulatory Issue Summary Operational Leakage, 87 Fed. Reg. 2361 (Jan. 14, 2022), (May 20, 2022)(May NEI Letter).
4 Analysis of Public Comments on Draft NRC Regulatory Issue Summary 2021-XX, Operational Leakage (ML21166A122), (NRC Comment Response).
5 See NEI Comment Letter, at pp. 6-10.
6 NRC Comment Response, at pp. 3-14.
7 Id., at p. 3.
8 See NEI Comment Letter, at pp. 4-6.
Nuclear Energy Institute 3
of Section XI to cover flaws detected at times other than during inservice inspections and tests (i.e., operational leakage). This is a misreading of paragraph (g)(4).
The first sentence of 10 CFR 50.55a(g)(4) states:
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 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.9 As we have explained, this language 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(a)(1)(ii) in the future (i.e., after the editions specifically referenced in 50.55a(g)(2) and (3) of the regulations). This requirementto come into compliance with subsequent addenda and editions of Section XIapplies throughout the service life of the facility. This language does not expand the applicability of Section XI to cover activities outside of the inservice inspection and testing context, such as technical specification operability determinations performed in response to operational leakage.
In situations where the language of a regulation is unambiguous, as is the case here, it is not necessary to resort to regulatory history. We nevertheless note that the plain language of paragraph 50.55a(g)(4) is consistent with the description in the 1976 final rule that substantially modified paragraph (g).10 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 § 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.11 9 10 CFR 50.55(g)(4)(emphasis added).
10 Codes and Standards for Nuclear Power Plants and Technical Information, 41 Fed. Reg. 6256 (Feb. 12, 1976).
11 Id., at 6257 (emphasis added).
Nuclear Energy Institute 4
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).12 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.
[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.13 The language of 10 CFR 50.55a(g)(4) and the associated regulatory history do not communicate that the Commission intended to broadly expand the scope of Section XI of the ASME BPV Code to address technical specification operability determinations associated with operational leakage. Even if the NRCs position on the applicability of Section XI to operational leakage had been clear and unambiguous over time (a proposition with which we disagree),14 that position is substantively incorrect and, therefore, invalid because it rests upon an interpretation that is at odds with the plain language of the regulations.
Allowing an agency interpretation that is not supported by the plain language of its regulations to stand would permit the agency, under the guise of interpreting a regulation, to create a de facto new regulation.15 Creation of such de facto new regulations violates the Administrative Procedure Act16 and undermines the NRCs 12 Codes and Standard for Nuclear Power Plants, 57 Fed. Reg. 34666 (Aug. 6, 1992).
13 Id., at 34671 (emphasis added).
14 See, e.g., NEI Comment Letter, at p. 6 (describing a nine-year exchange between ASME and the NRC regarding, in large part, the lack of ASME code rules covering operational leakage and concluding with the NRC stating that it would evaluate the necessity of additional regulatory activities to address operational leakage). We also note that the NRC seemed to recognize that a notice-and-comment rulemaking was necessary to implement the position articulated in RIS 2022-02, as they were considering amending 10 CFR 50.55a(g)(4) to cover operational leakage as recently as early 2021.
NEI communicated substantive objections to that change, as well as concerns about adherence to the Commissions backfitting requirements. These potential amendments to paragraph (g)(4) were discussed during several public meetings in late 2020 and early 2021. Ultimately, the NRC staff did not include this change in its planned rulemaking. See American Society of Mechanical Engineers 2019-2020 Code Editions: Proposed Rule, 86 Fed. Reg. 16087, 16096-97 (March 26, 2021).
15 Christensen v. Harris County, 529 U.S. 576, 588 (2000).
16 5 U.S.C. §§ 551(5), 553(b)-(d); see also Perez v. Mortg. Bankers Assn, 575 U.S. 92, 101 (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).
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incorporation-by-reference process.17 The Commission has recently reinforced the importance of these administrative law principles, reversing a previous holding in order to align its interpretation of an agency regulation with the plain language of the regulation and recognizing that any changes to the relevant regulation must be promulgated through a notice-and-comment rulemaking.18 Given the views set forth above, we respectfully request a written response to our comments explaining how paragraph (g)(4) can be read to impose a requirement that Section XI methods, or other NRC-approved alternatives, must be used by licensees to evaluate operability in response to the discovery of operational leakage.
If you have any questions regarding this request, please feel free to contact me or Jerry Bonanno, NEI deputy general counsel, at jxb@nei.org.
Sincerely, Ellen C. Ginsberg cc:
Daniel Dorman, OEDO, NRC Darrell Roberts, DEDO, NRC Andrea Veil, NRR, NRC 17 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 requires.
18 In the Matter of Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), CLI-22-02 (Feb. 24, 2022), at pp. 6-8.
1 Bridin McCloskey Attachments:
NEI Letter_NRC General Counsel_RIS 2022-02_12-12-22.pdf
From:GINSBERG,Ellen<ecg@nei.org>
Sent:Monday,December12,20226:16:53PM To:MarianZobler(She/Her/Hers)<Marian.Zobler@nrc.gov>
Cc:DanDorman<Dan.Dorman@nrc.gov>;DarrellRoberts(He/Him/His)<Darrell.Roberts@nrc.gov>;AndreaVeil
<andrea.veil@nrc.gov>
Subject:
[External_Sender]RemainingConcernsRelatedtoIssuanceof"RegulatoryIssueSummary202202:Operational Leakage"
Dear Ms. Zobler:
Attached please find the Nuclear Energy Institutes letter that requests a fuller explanation of the Nuclear Regulatory Commissions regulatory basis for the position articulated in Regulatory Issue Summary 2022-02.
If you have any questions regarding this request, please feel free to contact me or Jerry Bonanno, NEI deputy general counsel, at jxb@nei.org.
Sincerely, Ellen C. Ginsberg
Ellen C. Ginsberg l Sr. Vice President, General Counsel and Secretary Nuclear Energy Institute 1201 F Street NW, Suite 1100 l Washington, DC 20004 P: 202.739.8140 M: 202.437.0660 nei.org
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