ML23156A026

PR-052 - 61FR18099 - Standard Design Certification for the U.S. Advanced Boiling Water Reactor & the System 80+ Standard Designs, Proposed Rule and Meeting

ML23156A026
Person / Time
Issue date:	04/24/1996
From:	Hoyle J NRC/SECY
To:
References
PR-052, 61FR18099
Download: ML23156A026 (321)

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ADAMS Template: SECY-067 DOCUMENT DATE: 04/24/1996 TITLE: PR-052 -61FR18099 - STANDARD DESIGN CERTIFICATION FOR THE U.S. ADVANCED BOILING WATER REACTOR &

THE SYSTEM 80+ STANDARD DESIGNS, PROPOSED RULE AND MEETING CASE

REFERENCE:

PR-052 61FR18099 KEYWORD: RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete

DOCKET NO. PR-052

{61FR18099)

In the Matter of STANDARD DESIGN CERTIFICATION FOR THE U.S.

ADVANCED BOILING WATER REACTOR &THE SYSTEM 80+

STANDARD DESIGNS; PROPOSED RULE AND MEETING DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT

04/18/96 04/18/96 FEDERAL REGISTER NOTICE: SUPPLEMENTARY NOTICE OF PROPOSED RULEMAKING AND PUBLIC MEETING 05/24/96 05/23/96 FEDERAL REGISTER NOTICE: EXTENSION OF THE COMMENT PERIOD 07/23/96 07/23/96 COMMENT OF GENERAL ELECTRIC COMPANY (S. R. SPECKER) ( 1) 07/23/96 07/23/96 COMMENT OF ASEA BROWN BOVERI (CHARLES B. BRINKMAN) ( 2) 07/23/96 07/23/96 COMMENT OF NUCLEAR ENERGY INSTITUTE (THOMAS E. TIPTON) ( 3) 07/26/96 07/24/96 COMMENT OF WESTINGHOUSE ELECTRIC CORPORATION (HOWARD J. BRUSCHI) ( 4)

- 07/26/96 07/25/96 LTR TO CHAIRMAN JACKSON FROM JOE F. COLVIN, PRES.,

NUCLEAR ENERGY INSTITUTE ENCLOSING A COPY OF THE COMMENTS ON THE RULEMAKING SENT TO THE SECRETARY 10/03/96 10/01/96 LETTER FROM ROBERT W. BISHOP TOM. MALSCH, OGC, PROVIDING PAPER PREPARED BY EPRI ON DESIGN CERTIFICATION.

11/18/96 09/16/96 LETTER FROM JOE F. COLVIN, NUCLEAR ENERGY INSTITUTE RESPONDING TO COMMISSION QUESTIONS RAISED AT AUGUST 27, 1996 BRIEFING.

12/19/96 12/16/96 LETTER FROM STEVEN A. HUCIK, GE NUCLEAR ENERGY REQUESTING TO REVIEW DESIGN CERTIFICATION RULE FOR ABWR PRIOR TO ITS SUBMISSION TO OFR.

GE Nuclear Energy

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Dear Mr. Hoyle:

Subject Design Certification Rule for the Ad1Janced Boiling Water Reactor (AB~); Docket No.52-001.

On December 4, 1996, the Commission issued a Staff Requirements Memorandum (SRM) approving certification rules for the AB"WR and Sy.stem 80+. In so doing, the Commission resolved the remaining policy issues and directed the staff "as a matter of priority" to conform the final certification rules to the changes noted in the SRM and forward the rules to the Secretary for signature and publication in the Federal Register.

General Electric (GE) is deeply appreciative of the Commission's constructive resolution of the policy issues and the emphasis it placed on priority completion of the rulemaking process.

GE is the applicant for design certification of the A.BWR. Based upon discussions with Mr. Jerry N. Wilson of the NRC staff, we were informed that the staff will complete work on the design certification rule for the ABWR in approximatdy three or four months, that the rule will be provided to the Secretary for transmission to the Office of Federal Register (OFR), and that we will not be given an opportunity to see the rule before it is sent to the OFR unless the Secretary's Office so authorizes. The purpose of this letter is to request your authorization for GE to conduct a narrowly-focused review of the design certification rule for the ABWR before it is sent co the OFR and to urge that staff rule issuance activities be expedited to the maximum extent feasible. We believe that both requested actions can be mutually supportive 'in carrying out remaining NRC pre-issuance steps.

As you are awai-e, a supplemental proposed rule for design certification of the ABWR was issued for public comment in SECY-96-077. On July 23, 1996, GE submitted extensive comments on rhe design certification rule for the ABWR, and incorporated by reference the lengthy comments submitted by the Nuclear Energy Institute (NEI) on the same date.

Based upon requests by NEI, the Commission established a Senior Review Grc-:..1.p (SRG) to review these comments, and the SRG issued an extensive analysis of these comments on August 13, 1996 recommending a nurnber of changes to the supplemental proposed rule contained in SECY-96-077. SRG recommendations on other issues raised in industry comments were contained in the memorandum to the Commission from the Executive Director for Operations dated October- 21, 1996. In a SRM dated December 6, 1996, the

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DEC 19 '96 11:22AM Mr. John C. Hoyle, Secretary December 16, 1996 Page 2 Commission accepted most of the SRG's recommendations and identified other areas in which the supplemental proposed rule should be modified.

As a result of the Commission's SRM, all policy issues regarding the design certification rule for the ABWR have been resolved. However, in most cases, neither the SRG's August 13 and October 21, 1996 analyses nor the Commission's SRM identified specific language to implement these resolutions for the issues raised by NEI and GE. Because the implementing language is critical to the resolution of these issues, we request an opportunity to review the design certification rule for the ABWR before it is sent to the OFR. Our review would be narrowly limited- it would focw solely on ensuring that the language of the mle accurately and dearly conforms with the resolutions specified by the Commission; we are not requesting an opportunity to comment on the policy determinations that have been made by the Commission and we do not prnpose to raise new i-,sues. Any such meeting for this purpose would, of course, be publicly noticed.

For the following reasons, we believe that it would be appropriate to allow GE to conduct such a narrowly-focused review:

• GE is the applicant for design certification of the ABWR. As the applicant, we have a unique interest in ensuring the accuracy and clarity of the design certification rule.

In this regard, we note that the NRC in the past has given applicant.,; for operating licenses for nuclear power plants an opportunity to review the licenses before they arc issued in final form, and we believe that it is appropriate to afford GE an analogous opportunity to review the design certification for the ABWR before it is finafu:ed.

• The SRG and Commission accepted many of the comments submitted by GE (including NEI's comments that GE incorporated by reference). Therefore, we believe that GE can provide an especially valuable function in ensuring that the language in the design certification rule accurately and clearly reflects the Com-mission's intent. Review by GE of the implementing language will help ensure a quality product. In this regard, we note that we have previously identified darifiations and corrections in the language of the proposed rule and supplemental proposed rule, and both the staff and the Commission have found these clarifications and corrections to be useful and appropriate in implementing the content of the Commission (see, e.g., the Comm~sion's SRM dated March 17, 1995 on SECY-95-023; SRG's August 13, 1996 Analysis, g§ I.E., I.G., and X.A.).

• A review by GE would not delay issuance of the design certification rule. Indeed, we desire that the rule be issued as expeditiously as possible and that, consistent with the Commission's SRM directive for "priority" staff action, the aforementioned three to four months of pre-issuance staff activities be significantly reduced. Based upon our discussion with the staff, we understand that the critical path to submission of the rule to the OFR is not revision of the supplemental proposed rule but instead

DEC 19 '96 11:22AM Mr.John C. Hoyle December 16. 1996 Page 3 performance of ancillary activities, such as re,*ising the final safety evaluation report (FSER) for the ABWR, and a lengthy period for the staff concur:rence process. We C!.itimate that GE could perform its re,iew in one or two days, and we expect that any clarifications or corrections could easily and quickly be incorporated into the ruk.

In this regard, we understand that the Office of General Counsel (OGC) will be completing its review of the design certification rule in the next several weeks, and we would propose that our review be conducted contemporaneously with or shortly after OGC's review.

• We have discussed the possibility of a re,iew by GE with the NRC's Deputy General Counsel, and he has informed us that OGC has no legal objection to such a review.

Similarly, we are not aware of any legal impediment to such a review.

Based upon the above, we request that you direct the staff to permit GE to review the design certification rule for the ABWR prior to its submission to the OFR for the limited purpose of ensuring that the language in the rule accurately and clearly implements the Commission's resolutions of the policy issues raised by GE.

Steven A.Hucik cc: ChainnanJackson Commissioner Rogers Commissioner Dicus Commissioner Diaz Commissioner McGaffigan M. Malsch J. Wilson

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September 16, 1996 The Honorable Shirley A. Jackson Chairman U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001

Dear Chairman Jackson:

During the August 27 briefing on the design certification rulemaking, the Commission raised several questions on remaining certification issues. This letter provides additional information in response to those questions.

We appreciate the continued strong interest of the Commission in the appropriate resolution of the remaining design certification issues and hope the enclosed information is helpful in your deliberations on these issues.

Sincerely,

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c: Commissioner Kenneth C. Rogers Commissioner Greta J. Dicus Commissioner Nils J. Diaz Commissioner Edward McGaffigan, Jr.

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August 27 Commission Briefing on the Design Certification Rulemakings Responses to Questions on Remaining Issues and Points of Clarification Questions:

1. Does the Design Control Document (DCD) provide standards for review of future design changes? Is it necessary to add the proposed "applicable regulations" to the rules for this purpose?

2. How would "applicable regulations" be adverse to desim stability? Give specific examples.

3. Does Section 8 adequately ensure that enhanced safety will be preserved?

4. What are the differences between the industry and the NRC staff on the "applicable regulations" issue?

5. What is the backfit standard at renewal?

6. Clarify the options for Commission resolution of the issue of the scope of NRC review at certification renewal.

7. What is the status of the NRC review of the technical specifications and operational-related requirements specified in the DCDs?

8. Are "applicable regulations" needed so that the NRC would not be compelled to grant an exemption from a design feature that is subject to an "applicable regulation?"

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August 27 Commission Briefing on the Design Certification Rulemakings Responses to Questions on Remaining Issues and Points of Clarification

1. Does the Design Control Document (DCD) provide standards for review of future design changes? Is it necessary to add the proposed "applicable regulations" to the rules for this purpose? (Tr. pp. 74-75).

• Because of the extensive record on the technical and severe accident issues in question and the extensive information in the DCDs (and NRC Final Safety Evaluation Reports (FSERs)), it is not necessary to add the proposed "applicable regulations" to the rules for the purpose of providing standards for review of future design changes.

• The DCD contains design descriptions and extensive supporting information on design functions, performance characteristics and bases. SECY-90-016 and SECY-90-087 and their respective Commission SRMs provide policy guidance and associated bases on the resolution of technical and severe accident issues, and the FSER documents the NRC staff bases for determining that specific designs conform to this guidance. It is this detailed information that a future NRC reviewer would use in evaluating the acceptability of a change to the Tier l or Tier 2 design. The extent of this information is illustrated by the following examples concerning design features addressed by two of the proposed "applicable regulations."

Example 1: "Applicable regulation" 5(c)(9) on core debris cooling calls for design features such as floor space for core debris spreading, a passive flooder and AC-independent water addition fystem, and concrete to protect the lower drywell liner and reactor pedestal. This standard is fully discussed in both the DCD and FSER. In particular, DCD Section 19.8. 7 for the ABWR describes the design features to mitigate core damage "consistent with the issues discussed in SECY-90-016,"

including the AC-independent water addition system, the lower drywell flooders that provide core debris cooling, Containment Overpressure Protection System, the floor spreading area and concrete protection for the containment floor and reactor vessel pedestal. Section 9 5.12 of Tier 2 provides more detail on the core debris quenching function of the lower drywell flooders, and Section 5.4.7.1.10 of Tier 2 provides more detail on the functioning of the AC-independent water addition system in cooling the lower drywell in the event of core damage.

Section 2.14.1 of Tier 1 describes the floor spreading space, the lower drywell flooders that provide core debris cooling, and the concrete to protect the containment floor and reactor vessel pedestal. Section 2.4.1 of Tier 1 2

describes the function of the AC independent water addition system in providing drywell cooling. Section 2.14.6 of Tier 1 describes the Containment Overpressure Protection System.

Section 19.2.3.3.2 of the FSER addresses the provisions in SECY-93-087 on core debris coolability, including provisions related to floor spreading area, lower drywell flooder, AC-independent water addition system, sacrificial concrete, the reactor vessel pedestal, and the Containment Overpressure Protection System. This section also describes how the design of the ABWR meets these standards.

Example 2: "Applicable regulation" 5(c)(8) specifies the use on an on-site alternative AC power source for safe shutdown in the event of a station blackout. This standard is fully discussed in both the DCD and FSER. In particular, Section lC.2.2 of Tier 2 for the ABWR identifies the design basis for the station blackout, including use of an Alternate AC source to comply with 10 CFR 52.63 and SECY-90-016, and Section lC.2.4 shows how this standard is met by the Combustion Turbine Generator for the ABWR. Similar provisions are contained in Section 9.5.11 of Tier 2.

Section 2.12.11 of Tier 1 states that the Combustion Turbine Generator "functions as an alternative AC power source."

Sections 19.2.2.1.2 and 8.3.9 of the FSER discuss 10 CFR 50.63 and the provisions in SECY-90-016 which call for an Alternate AC source, and states that these provisions are met by the Combustion Turbine Generator.

• Similarly extensive information exists on the generic and design-specific resolution of each of the other technical and severe accident issues addressed by the proposed "applicable regulations." This information could be used in evaluating any design changes that may be proposed in the future, thus obviating the need to add "applicable regulations" for this purpose.

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2. How would "applicable regulations" be adverse to design stability?

Give specific examples. (Tr. pp. 14-15, 18, 30).

Design stability would be undermined by the proposed additional "applicable regulations" because substantial portions of the DCD would be subject to lesser backfit protection than intended by Part 52. The Commission established Section 52.63 to provide greater backfit protection to certified standard designs (i.e., design stability) than that provided under Section 50.109 for plants licensed under Part

50. The staff proposal would revert back to ":0.109-like" backfit protection for substantial portions of the DCD that specify design features and related DCD requirements credited in meeting "applicable regulations." The following examples illustrate why the proposed "applicable regulations" are a source of significant

- design instability and uncertainty.

Example 1: Section 3.4.C of Tier 1 for the ABWR identifies specific features that provide defense-in-depth, diversity, and protection against common-mode failures for digital instrumentation and control systems. Such features include a hardwired manual scram capability, hardwired manual capability to trip each safety division, and hardwired independent displays of specified plant parameters. In contrast, the broadly worded "applicable regulation" in Section 5(c)(3) of the rule states (emphasis added):

The digital instrumentation and control systems of this design must provide for:

(i) defense-in-depth and diversity.

(ii) adequate defense against common-mode failures, and (iii) independent backup manual controls and displays for critical safety functions in the control room.

Given this very general language, it would not be surprising if future NRC staff reviewers were to change the current interpretation of this "applicable regulation." Such changes could then be used as a basis for imposing backfits on the specific Tier 1 design features identified above. In particular, there is a significant potential that future NRC staff might require the installation of additional hard-wired instruments and controls beyond those currently listed in Tier 1.

Example 2: Tier 1 of the ABWR identifies numerous features that contribute to a low shutdown risk, including three separate divisions of Residual Heat Removal, main steam relief valves, automatic initiation of the High Pressure Core Flooder and Low Pressure Core Flooder upon low reactor vessel water level, an AC Independent Water Addition System, and multiple sources of AC power, among many other features. In contrast, the broadly worded "applicable regulation" in Section 5(c)(13) of the rule states (emphasis added):

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This design must include assessments of-(i) Features that minimize shutdown risk; (ii) The reliability of decay heat removal systems; (iii) Features that mitigate vulnerabilities resulting from other design features: and (iv) Features that assure the operator's ability to shut down the plant safely and maintain it in a safe condition in the event of fires and fl,oods occurring with the plant in modes other than full power.

Over the 60 year life of a plant that references the design certification, there undoubtedly will be further developments in the state-of-the-art with respect to shutdown risk features, and this "applicable regulation" would enable the staff to e back.fit such features in order to further "minimize" shutdown risk.

Example 3: Sections 2.14.1 and 2.14.6 of Tier 1 for the ABWR identify specific features to protect the containment from the effects of core debris, including minimum floor spreading space, drywell flooder valves that provide for core debris cooling, corium protection at least 1.5 meters thick for the areas beneath the reactor vessel, concrete protection for the reactor vessel pedestal, and a Containment Overpressure Protection System. In contrast to this level of specificity, the broadly worded "applicable regulation" in Section 5(c)(9) of the rule states (emphasis added):

For the severe accident sequences identified in Section 19E of the DCD, this design must include the following design features that, in combination with other design features, ensure that environmental conditions (pressure and temperature) described in Section 19E of the DCD resulting from interactions of molten core debris with containment structures do not exceed ASME Code Service Level C for steel containments or Factored Load Category for concrete containments for a time from the initiation of the accident sequence su(fi,cient to mitigate them in view of their probability of occurrence and the uncertainties in severe accident progression and phenomenology:

(i) A minimum of 79 m 2 of unobstructed reactor cavity fl,oor space for molten core debris spreading; (ii) A passive fl,ooder system and an ac-independent water addition system capable of directly or indirectly flooding the reactor cavity for cooling molten core debris; and (iii) Concrete to protect portions of the lower drywell containment liner and the reactor pedestal.

This vague and subjective language could lead to back.fits on the specific design features in Tier 1 or supporting Tier 2 requirements as more information is developed in the future regarding the probability of occurrence of severe accidents and the progression and phenomenology of severe accidents.

5

• The proposed back.fit protections do not mitigate this concern because we cannot predict with any degree of certainty how they will be used by future NRC staff. The technical and severe accident issues that are the subject of the proposed additional "applicable regulations" are characterized by relatively greater analytical uncertainty and/or address beyond design basis events of very low probability. On such matters, differences of opinion are inevitable concerning when new information indicates a "substantial" decrease in protection and whether there is a fix that provides a cost justified "compensr ting" increase. It is in this way that the concern about "design instability" becomes inseparable from overall licensing instability and uncertainty that would be caused by "applicable regulations."

• The NRC staff estimates that most, if not all, back.fits will be procedural in nature.

We must not underestimate the potential cost over the life of a plant ofNRC-mandated procedural changes. Moreover, there is nothing in the proposed backfit provisions that would give sufficient protection against back.fits to the standard design consistent with the intent of Part 52.

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3. Does Section 8 adequately ensure that enhanced safety will be preserved? (Tr. p . 57).

• Yes. The advanced plant technical issues and enhanced safety features 11 that are the subject of the proposed additional "applicable regulations are addressed by Tier 1 requirements of the design. A generic change to these requirements requires new rulemaking and, in any event, cannot be made unless the change is necessary for a '.!equate protection of the public health and safety or compliance with NRC regulations. A licensee may not deviate from these requirements for a specific plant except by an exemption request meeting the requirements of Section 52.63(b)(l) and approved by the Commission.

• Design information and requirements supporting and implementing Tier 1 design commitments are contained in Tier 2. Section 8 requires prior NRC review and approval of any change that involves an unreviewed safety question. The determination of whether a unreviewed safety question exists includes evaluation of the impact of a change on technical and severe accident design features , including those addressed by the proposed additional "applicable regulations."

• Thus, Section 8 provides adequate protection against the erosion over time of enhanced safety features that are part of the design certification.

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4. What are the differences between the industry and the NRC staff on the "applicable regulations" issue? (Tr. pp. 34-35).

Fundamentally, the NRC staff wants the design certification rules to include new "applicable regulations," and the industry does not. This basic difference reflects a number of differences on the need and impact of the "applicable regulations,"

including the following:

• The staff believes that the propose(! "applicable regulations" are necessary to comply with previous Commission guidance that severe accident issues be treated in design-specific certification rulemakings rather than generic rulemakings. The industry believes that the design-specific features in the DCD, which itself is part of the design certification rule, satisfy Commission guidance regarding design-specific rulemaking.

• The staff believes that "applicable regulations" are necessary to ensure maintenance of the level of safety and margins that the NRC believes it is approving through the design certifications. The industry believes that, absent "applicable regulations," the features in the design certifications together with the stringent controls on changes of those features, will provide substantial additional levels of safety and margins above those contained in existing plants. Furthermore, the industry believes that it is inappropriate for the NRC to codify by regulation the additional margins embodied in these advanced designs.

• The staff believes that the "applicable regulations" are necessary to provide the NRC with a basis for reviewing changes. The industry does not believe that "applicable regulations" are necessary for this purpose, because an adequate basis for reviewing changes already exists in the DCD, FSER, and NRC guidance in SECY-90-016 and 93-087.

• The staff believes that there is little likelihood that the "applicable regulations" will be used to impose backfits on the design. The industry believes that the "applicable regulations" are vague and subjective, and will be subject to new and different interpretations in the future that can be used to impose design backfits. In this regard, the proposed back.fit standard for "applicable regulations" is similar to the backfit standard in Section 50.109, which has been used extensively to impose both design and procedural backfits on existing plants.

• In the August 27 Commission briefing, the staff stated that the proposed "applicable regulations" can be bifurcated into those that are basically deterministic in nature and those that are not. The staff implied that there may be less of a need to include the deterministic "applicable regulations" in the design certifications. The industry believes that none of the proposed 8

new "applicable regulations" are needed for design certification, and eliminating several of the proposed new "applicable regulations" would be a step in the right direction. However, the severe accident-related "applicable regulations" that would remain are the source of most of the uncertainty that so concerns the industry. Moreover, the fundamental policy concerns associated with the staff proposal are the same whether three or thirteen "applicable regulations" are proposed for the final rules.

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5. What is the backfit standard at renewal? (Tr. pp. 47-49).

• Except in the design certification renewal rulemaking, bac.kfits are restricted by Section 52.63. This means that back.fits may be imposed to assure the adequate protection of the public health and safety or compliance with the regulations applicable and in effect at the time of the design certification. This reflects the Commission intent that Part 52 establish greater protection against backfits for design certification information than that provided by Section 50.109 for plants licensed under Part 50.

• The Commission also structured Part 52 to accommodate the potential that new information may be identified during the life of the certification that could lead to further improvement of the certified standard design. Thus, in addition to the ability to impose back.fits, at any time, under Section 52.63 to assure adequate protection, the NRC may impose back.fits under Section 52.59 during the certification renewal rulemaking. This means that the NRC may, at ti.me of renewal, impose additional cost-justified requirements that may result from the identification of significant new information or operating experience since the design was originally certified.

• Thus, Part 52 provides the authority for the NRC to impose cost-justified backfits at ti.me of renewal.

• It is important to emphasize the point made by Mr. Malsch in responding to the question of Chairman Jackson concerning the "reference standard" that the staff would use to impose a change at time of renewal. Mr. Malsch stated,

... regardless of lww you come out < n applicable regulations, there is still the 1

opportunity in theory, at the certification renewal stage, to add safety increments above whatever applicable regulations would otherwise require.

In other words, Part 52 currently allows the NRC to impose changes on the design certification at time of renewal so long as the changes (1) provide a substantial increase in protection and (2) are cost justified. The staff may impose such changes without regard for the regulations applicable and in effect at the time of design certification. Thus it is not necessary to codify the proposed additional "applicable regulations" in order for the staff to impose cost-justified changes at ti.me of renewal.

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6. Clarify the options for Commission resolution of the issue of the scope of NRC review at time of certification renewal. (Tr. p. 89).

The August 13 options paper identified three alternatives for Commission consideration on the issue of the scope of NRC staff review for design certification renewal. Based on the clarifications and discussion from the August 27 briefing, we believe that the Commission has the following options for addressing this issue (which differ somewhat from the three options characterized by the NRC staff):

• Option I - Include a provision in the design certification rules, with appropriate explanation in the Statements of Consideration, establishing the framework for NRC review of design certification renewal applications.

This framework would provide for NRC review of the following, subject to the backfit provisions of Section 52.59:

- updates of the design certification that are part of the renewal application

- any modifications proposed by the applicant, including relevant operating experience or other material new information since the time of the original certification

- any modifications proposed by the NRC

• Option 2 - Do not include a provision in the final rules but describe in the Statements of Consideration the framework outlined under Option 1 to capture current industry-NRC agreement concerning NRC review at renewal and to provide a basis for development of appropriate regulatory guidance on the certification renewal process.

• Option 3 - defer resolution of the scope of renewal review issue in a manner that does not prejudice its future consideration Option 1 is preferred because it would establish in the regulations the policy focus for subsequent implementation. It is understood that detailed regulatory guidance concerning the scope and content of applications for design certification renewal would be developed at a later date. We intend to propose revised rule language for implementing this option for NRC consideration.

Based on the industry-NRC staff agreement on the nature of the renewal review, we believe that, at a minimum, the Commission should describe the agreed-upon principles and the policy concepts underlying them in the Statements of Consideration (Option 2). While deferral (Option 3) is an option available to the Commission, we see no reason why principles governing the framework for the renewal review should not be established in the final rules and/or Statements of Consideration.

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7. What is the status of the NRC review of the technical specifications and operational-related requirements specified in the DCDs?

(Tr. pp. 77, 81-83).

At the Commission meeting on August 27, 1996, the NRC staff stated that the technical specifications and operational-related provisions in the DCD should not have protection under Section 52.63 because the staffs review of the technical specifications and operational-related provisi ms is not complete. As support for their opinion, they referred to information in brackets in the technical specifications.

Notwithstanding NRC staff statements that certain aspects of their design certification reviews were not complete, the NRC staff reviewed the technical specifications and a number of operational-related provisions in the DCD and approved them in the Final Safety Evaluation Report (FSER). For example, the FSER for the ABWR has the following conclusions regarding the technical specifications and specific operational-related provisions:

• Technical Specifications - Section 16 of the FSER states that "the ABWR TS satisfy 10 CFR 50.36 and are acceptable."

• Initial Test Program - Section 14.2 of the FSER states: "The staff also conducted an in-depth review of system-specific testing requirements within each test abstract. The staff concludes that GE provided a sufficient level of detail to adequately describe system-specific test prerequisites and acceptance criteria."

• Inservice Test Program - Section 3.9.6 of the FSER states: "Based upon the evaluations described above, the staff concludes that the pump and valve IST program described in the SSAR is acceptable and meets the requirements of GDC 37, 40, 43, 46. and 54 and 10 CFR 50.55a(f)."

• Shutdown Risk-Section 19.3.7 of the FSER states: The staff finds that improvement in safe operation of the ABWR plant in low-power and shutdown modes can be reasonably accomplished by implementing GE's guidelines for preparing and implementing an outage plan. It concludes that GE has adequately addressed important areas described in NUREG-1449 regarding outage planning and control. The staff also notes that specific shutdown TS requirements and guidelines for preparing and implementing an outage plan will significantly improve safe shutdown operation."

As the staff has noted, the DCDs do not address all information that must be included in the technical specifications or all operational provisions. For example, 12

the technical specifications contain information in brackets that must be updated based upon as-built plan information, and the DCD contains numerous COL license information items for operational matters that must be addressed by COL applicants. Both the information in the ,brackets in the technical specifications and the matters subject to COL license information items will be subject to review and approval by the NRC at the COL stage and are not subject to the finality provisions in Section 52.63. However, to the extent that a matter is addressed in the DCD, including the technical specifications in Tier 2, such matters have been approved by the NRC, and therefore bac.kfits should be st::ictly controlled. We intend to propose rule language that responds to the NRC staff concerns expressed in the August 13 options paper and August 27 briefing.

It is worth noting that replacement of bracketed information with specific entries for the technical specifications will, as noted by the staff, depend on as-built information. As such, combined licenses (which will be issued prior to plant construction) will necessarily contain bracketed information, just as the DCD technical specifications do. Therefore, the fact that the DCD technical specifications contain bracketed information does not mean that the technical specifications are not otherwise complete or that they should not otherwise have finili~. .

13

8. Are "applicable regulations" needed so that the NRC would not be compelled to grant an exemption from a design feature that is subject to an "applicable regulation?" (Tr. pp. 73, 91).

At the Commission briefing, Mr. Russell and Mr. Malsch implied that "applicable regulations" are needed in order to permit the NRC to deny a licensee exemption request for a feature that is subject to an "applicable regulation." As an example, they stated that, absent "applicable regulations," the NRC would be compelled to grant an exemption to allow coping to addres~ station blackout (which is allowed by Section 50.63) even though the relevant "applicable regulation" allows only for alternate AC. We do not believe this to be so, as discussed below.

Each of the "applicable regulations" is addressed in whole or part in Tier 1 of the DCDs, which will itself be part of an NRC regulation - - the design certification rule. Specifically, the requirements for alternate AC are contained in Tier 1. If an applicant or licensee desires to use coping rather than alternate AC, it would be required to seek an exemption from Tier 1 because Tier 1 is part of the design certification rule. Contrary to statements at the briefing, the NRC is not required to grant an exemption from Tier 1 merely because the exemption complies with the technical standards in Part 50 (such as the coping provision in Section 50.63).

Instead, Section 52.63(b)(l) allows an exemption from Tier 1 only if the exemption satisfies Section 50.12, and if the "special circumstances which Section 50.12(a)(2) requires to be present outweigh any decrease in safety that may result from the reduction in standardization." Furthermore, it is clear from the Statements of Consideration for Part 52 (54 Fed. Reg. at 15377) that the criteria in Section 50.12 (including the criterion for "special circumstances") are applied against the design certification rule itself, not just the provisions in Part 50.

Therefore, in determining whether to grant an exemption from Tier 1 to allow coping rather than alternate AC, the NRC would have to determine whether "special circumstances" exist for the deviation from the requirement for alternate AC. The mere fact that the exemption complies with the coping provisions in Section 50.63 would not be sufficient, in and of itself, as a basis for granting the exemption. In making this determination, the NRC could consider a myriad of factors, including the technical positions in SECY-90-016 and 93-087 that led to the Tier 1 provision on alternate AC.

14

DOCKETED l!C' IP."

NUCLEAR ENERGY INSTITUTE-* ..J i,\v

'96 oc - 3 P4 :15 Robert Willis Bishop VICE PRESIDENT &

OF F1r*c rr s,..** C,..,rs -. rA ~ y I\

GE NERA L COUNSE l October 1, 1996 t

OOCr'~ETlh 3 :.~.KVICL BR.ANCH Martin G. Malsch, Esq. DOCKET NUMBER PR 5 2-Deputy General Counsel PRoPosEo RULE..:..:::------

U.S. Nuclear Regulatory Commission Mail Stop 17 D13 15 B18 Washington, DC 20555-0001

{ 6 I FR I <t'OCf V

SUBJECT:

Part 52 Design Certification

Dear ~ h:

As a follow-up to our conversation last week regarding outstanding Part 52 design certification issues, I am enclosing a white paper providing additional information concerning the historical development of the "applicable regulations" issue. This paper was prepared by EPRI for NEI as an input to industry comments on this issue. I thought this information might be of help to you as you and the Senior Review Group consider this matter further.

As always, please feel free to contact me if you would like to discuss this or related subjects further.

Sincerely, Enclosure 1 776 I STREET, NW SUITE 400 WASHINGTON, DC 20006-37 08 PHONE 202 73 9 81 39 FAX 202.785 1898

.}.. . :.;c;_.: .::, :}LCULATORY COMMISSl01' CiOCKf.P;~G SERVICE SECTION CffiCi: vF T!-iE SECRETARY OF THE COW.i!SSION

WHITE PAPER 0

Additional Applicable Regulations" in Part 52 Design Certifications --

An Analysis of the Historical Record of Policy Development and Decisions (Provided to NEI by EPRI)

Abstract:

This Point Paper will trace the history of NRC and industry policies related to the enhanced levels of safety that both NRC and industry have sought to achieve over the last decade in the design and regulatory review of the next generation of Advanced Light Water Reactors (ALWRs). It will show a common and consistent commitment to this goal of enhanced safety from the mid-1980s by both NRC and industry, and will show how NRC and industry converged to common understandings and agreements on the design philosophies and plant features chosen to achieve this goal.

Importantly, it will show that as far back in time as NRC policies relevant to ALWRs have been articulated (1986-1988 era), Commission policies have consistently supported this goal of enhanced safety in a manner that did not require new regulations. It will show that the Commission allowed for the possibility that new generic regulations might be needed, but that the NRC never established the basis for such rulemaking. In 1992, the option of new generic regulations for ALWRs was abandoned. In its place the staff recommended and the Commission approved a process of resolving selected technical and severe accident issues for evolutionary AL WRs in the context of design-specific rulemakings through individual design certifications. When this decision was made (late 1991), there was not (and had not been) any mention of the concept of "Additional Applicable Regulations", since both industry and the NRC had been proceeding on the basis that a design certification (DC) rulemaking would codify the mutually agreed-upon design features that addressed these issues. This paper will show, despite the emergence, in late 1992, of this new concept of applicable regulations, that neither the Commission nor the industry ever requested or supported this concept.

Finally, it will provide the historic underpinnings that show "additional applicable regulations" are unnecessary and extremely destabilizing; and that using this concept to embed new generic regulations inside DC rules runs counter to a significant number of Commission rules and policies that are relevant today.

Background:

The nuclear industry, led by a group of U.S. and international utility executives serving on an ALWR Utility Steering Committee (USC), directed a program that identified and managed to closure all the open technical and regulatory issues that were relevant to the ALWR. This process began in 1983 and was conducted in close cooperation with the NRC. The list of open issues was sufficiently narrowed by 1986 to begin the creation of a Utility Requirements Document (URD) that would resolve all remaining technical issues in the design of standardized AL WRs. The USC was fully committed to meeting and exceeding the Commission's expectations for enhanced safety in ALWRs, because this was in industry's best interests as well.

1

The technical and generic severe accident issues associated with "additional applicable regulations" were in fact essentially resolved by industry in the 1987 to 1990 timeframe, and achieved NRC concurrence in the 1990 to 1992 timeframe.

The concept of embedding new generic regulations within a DC rule itself first appeared in late 1992 after the decision was made to abandon generic rulemaking on severe accidents for ALWRs and to resolve these issues in the context of DC rulemaking).

NRC staff proposed a new interpretation of a phrase in Part 52, ".. compliance with the Commission's regulations applicable and in effect at the time the certification was issued ... ", which in theory could allow for new regulations to be established within the DC Rules themselves. Prior to 1992, both industry and NRC interpreted this phrase as simply referring to the regulations that were "on the books" prior to certification.

Executive Summary:

In its Severe Accident Policy Statement and its Advanced Reactor Policy Statement, the Commission concluded that (i) no present basis existed for generic rulemaking for

. advanced plants, given that existing plants posed no undue risk to public health and safety; and (ii) that enhanced safety would be achieved via a Commission expectation that industry would satisfy Commission policies for enhanced safety. The Commission specifically answered policy questions in with responses that reversed proposals to require enhanced safety, specifying instead a policy of encouraging enhanced safety.

Utilities welcomed the Commission challenge to meet its expectations for enhanced safety, because this direction was consistent with utility policies. Utilities decided that ALWRs would not only meet these expectations but exceed these expectations, in clear and demonstrable ways, in erder to streamline regulatory review and enhance stability.

Industry moved aggressively to develop requirements for engineered resolutions to the open technical and severe accident issues, to get those resolutions reviewed and agreed to generically by NRC staff, and to get concurrences approved by the Commission.

Clearly the history of this issue shows that staff proposals on all the relevant AL WR technical issues, and the Commission approvals of these matters, were just that --

convergence of staff and industry positions on ALWR technical issues for which both staff and industry sought Commission concurrence in order to achieve stable resolutions. Commission approvals of these positions were not stated as agreements to embed new regulations in future design certifications.

The historical record clearly indicates that the Commission agreed to resolve these selected technical and severe accident issues in the context of a rulemaking that certified the design features that NRC had approved. Clearly, the Commission decision to abandon generic rulemaking and proceed with design specific rulemakings as the means to resolve these issues was made based on the clear and well-documented presumption that these issues can and would be resolved by certifying the designs that incorporated the agreed-upon resolutions to these issues. Industry fully supported this Commission position. Nowhere in the four year decision process did the staff request, or the Commission direct the staff, to embed new regulations inside DC rules.

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DETAILED REVIEW OF COMMISSION POLICIES RELATED TO THE CONCEIT OF "APPLICABLE REGULATIONS" (This review covers the key relevant documents, and is arranged chronologically.)

Severe Accident Policy Statement and Advanced Reactor Policy Statement:

In its 1985 Severe Accident Policy Statement, the Commission introduced the concept of "enhanced safety" for future designs: "The Commission expects that vendors engaged in designing new standard plants will achieve a higher standard of severe accident safety performance than in their prior designs." Later, in its Advanced Reactor Policy Statement, a similar expectation was expressed: "The Commission expects that advanced reactors will provide enhanced margins of safety and/ or utilize simplified, inherent, passive, or other means to accomplish their safety functions. The Commission also expects that advanced reactor designs will comply with the Commission's forthcoming safety goal policy statement."

[Note that both policy statements challenged industry to deliver designs for review that met Commission expectations. Neither policy statement specified new regulations to force or replace industry initiative.]

In its Severe Accident Policy Statement, "... the Commission conclude[d] that existing plants pose no undue risk to public health and safety, and sees no present basis for immediate action on generic rulemaking or other regulatory changes for these plants because of severe accident risk."

In its Advanced Reactor Policy Statement, the Commission answered two questions with similar responses that did not support new regulations:

"Question 2: Should the regulations for advanced reactors require more inherent safety margin for their design? ... Commission Response: The Commission encourages the incorporation of enhanced margins of safety ... To encourage such action, the Commission in its review of these advanced designs, will look favorably on designs with greater safety margins and/ or highly reliable safety systems." [note: no mention of new regulations].

"Question 3: Should licensing regulations for advanced reactors mandate simplified designs which require the fewest operator actions and the minimum number or components needed? ... Commission Response: The Commission will encourage designs which are simpler and more reliable ... While current generation nuclear power plants, in operation or under construction, represent no undue risk to either the public or the environment, the Commission believes that reactors with improved safety characteristics can and will be developed" ... [note: no mention of new regulations 1.

3

Note that the Commission's key conclusions in its Severe Accident Policy Statement and its Advanced Reactor Policy Statement were that (i) no present basis existed for generic rulemaking for advanced plants, given that existing plants posed no undue risk to public health and safety; and (ii) that enhanced safety would be achieved via the Commission's expectation that industry would satisfy Commission policies for enhanced safety -- without any Commission statement of need for regulations to force or replace industry initiative. In fact, the Commission specifically answered questions in its Severe Accident Policy Statement with responses that reversed proposals to require enhanced safety, specifying a policy of encouraging enhanced safety.

Whether or not the Commission expected or required enhanced safety became a matter of significant discussion between the staff and Commission. The Commission reiterated its strong position that it expected enhanced safety, and did not support a reinterpretation of this expectation as a requirement. (see SRMs discussed below, and the summary of a May 3, 1990 Commission briefing, ref. (a), pages A-7 to A-9.)

Industry Policy on Enhanced Safety as it Relates to Commission Policies:

Following the TMI accident, a group of utility leaders were surveyed on future nuclear energy needs. They expressed a strong belief that it was vitally important to the option for building new nuclear plants that a stable licensing process be created, that additional margins be provided to protect plant investment, and that public confidence in nuclear technology be restored after the TMI accident. All of these goals could be achieved if future plants were designed to incorporate safety and performance features that addressed the lessons of operating experience, and if they were demonstrably improved over the current, already-safe designs.

Industry consensus was achieved on the safety and performance goals for ALWRs, and the design philosophy that the designers should follow (e.g., greater simplicity, greater margin, better maintainability) in the process of preparing the Utility Requirements Document (URD). This was a utility-driven process, governed by a Utility Steering Committee (USC), and supported by EPRI. Strategic utility policies and objectives were at the center of all technical decisions: greater safety and investment protection go hand-in-hand; a high degree of standardization will improve the operational and regulatory stability of future plants and greatly reduce costs; larger design margins in a simpler and more rugged design will significantly reduce the complexity of operations; greater emphasis on managing life-cycle costs (in contrast to overnight cost) will allow for longer service life, easier maintenance, and a better overall plant.

The Utility Requirements Document, written and submitted to NRC for review by the USC between 1986 and 1990, had the full support of the U.S. utility industry, the many international utilities that participated in the effort, and the Department of Energy. The reactor designers were active participants, and accepted the challenge of meeting the requirements set forth in the URD, not only to satisfy their future customers, but to pave the way for generic resolution of issues with the NRC such that individual design reviews, approvals and certifications would be more straightforward and predictable.

(see NUREG--1197 process, summarized below and in ref. (a)).

4

In the URD, the utilities proposed to achieve a higher degree of safety for all AL WRs in specific ways that explicitly addressed the Commission's Severe Accident Policy Statement and Advanced Reactor Policy Statement. Industry welcomed the challenge of the Commission to meet its expectations for enhanced safety, because this direction was consistent with utility policies. Utilities decided that ALWRs would not only meet these expectations but exceed these expectations in clear and demonstrable ways, in order to streamline regulatory review and enhance stability. Industry welcomed a process that allowed the future owner-operators and designers to decide how best to meet Commission objectives in the most cost-effective way, so that the role of the NRC could remain one of reviewing for adequate safety, not designing the plant.

The URD, submitted to NRC for review starting in 1986, addressed all the issues that would later be identified in SECY-90-016, and much later be covered by the new term "additional applicable regulations". URD Chapter 5, "Engineered Safety Systems",

submitted for NRC review in 1987, covered all the severe accident issues that would later appear in SECY-90-016. Even though EPRI had did not receive the staff's draft SER on this chapter until Feb. 1990, industry noted a striking similarity between URD resolutions of the key severe accident issues and initial staff proposals for how they intended to address these issues, (e.g., as presented in a Dec., 1988 workshop, in SECY-89-013, and later in SECY-90-016).

It is important to recognize that for virtually every technical and severe accident issue \\

at question today in the context of "applicable regulations", it was industry that first identified the issues and proposed and implemented the design features that NRC staff now asserts it must impose under new regulations. From industry's perspective, most of these issues were settled between the designers and future customers before Part 52 was issued in April 1989; and settled with the NRC prior to 1992 when the concept of "additional applicable regulations" first appeared. SECY-96-077 and a Staff Memo dated August 13, 1996, both state that new applicable regulations are necessary to achieve the Commission's intent for a higher level of safety in future designs, when in fact history clearly shows that this is not correct. Industry took the initiative by identifying the open issues applicable to AL WRs in the 1983-1985 timeframe, and by requiring of itself the design features that resolved all these issues, prior to NRC identifying these resolutions as staff requirements. Industry does not understand the recent claim that NRC must now impose new regulations in order to achieve safety levels that were in fact achieved and assured many years ago.

NUREG-1197 (Advanced Light Water Reactor Program), 1986:

NUREG-1197 established a process for NRC to review and approve the ALWR Utility Requirements Document via a Safety Evaluation Report (SER) that would address the licensing requirement aspects of the URD. The URD, in turn, would address all current regulatory requirements including resolution of all applicable generic safety and licensing issues. This SER approval would state that the URD has provided resolution for these issues consistent with the level of detail provided; would document the acceptability of alternate approaches to current regulatory requirements as identified in 5

the URD, and would provide assurance that non-safety subjects such as "constructability" are not in conflict with regulations, and therefore are acceptable.

The licensing process for a plant utilizing the URD would primarily consist of a demonstration that the plant requirements have been appropriately implemented at an acceptable site, considering factors beyond the scope of the URD.

[The process outlined in this NUREG did not work as intended. In Sept., 1989, EPRI and NUMARC briefed the Commission and requested a renewed commitment to apply resources to the URD review, a renewed commitment to resolve issues generically, and a renewed commitment to use the URD as a vehicle for safety and regulatory issue resolution and a basis for NRC certification actions. The Commission responded positively (see below and ref. (a). Also, note that this NUREG-1197 process did not envision the need to codify these technical resolutions as new regulations.}

Part 52: Statements of Consideration (SOC):

Part 52, issued in April, 1989, made it clear that there was only one acceptable way to establish new standards for advanced designs -- processes, most particularly generic rulemaking, that would precede design certification rulemaking:

"But even here, the Commission has avoided establishing new standards or environmental standards, although the Commission may choose to adopt additional safety standards applicable to new designs prior to the advent of design certifications" (Part 52, SOC, I. Background, emphasis added.)

"The Commission recognizes that new designs may incorporate new features not addressed by the current standards in Parts 20, 50, 73, or 100, and that accordingly new standards may be required to address any such new design features.

Therefore, the NRC staff shall, as soon as practicable, advise the Commission of the need for criteria for judging the safety of designs offered for certification that are different from or supplementary to current standards in 10 CFR Parts 20, 50, 73, and 100. The Commission shall determine whether additional rulemaking is needed or appropriate to resolve generic questions that are applicable to multiple designs. The objective of such rulemaking would be to incorporate any new standards in Part 50 or 100, as appropriate, rather than to develop such standards in the context of the Commission's review and approval of individual applications for design certifications." (Part 52 SOC,Section II.Le., emphasis added)

Note that the Commission objective, if generic rulemaking was deemed necessary, was to incorporate new standards in existing regulations -- prior to the advent of design certifications -- not in DC rules. Also note that the SOC envisioned new standards or rules as only necessary if existing rules did not properly address new design features. A case has not been made, particularly for evolutionary plants, that existing rules are inadequate by virtue of not addressing AL WR design features.

6

Also note that the new proposed "Applicable Regulations" are generic in nature, although they have been characterized often as design-specific in order to bypass requirements for generic treatment. The cited SOC section (II.Le) does address the possibility that new standards may be design-specific. Even in that situation, a rulemaking proceeding for that particular design is specified (prior to the advent of DC rulemaking, per above).

Part 52: Subpart B: Standard Design Certifications:

The use of the phrase "... regulations applicable and in effect at the time the certification was issued ... " is limited to two specific situations: renewal of a certification (52.59), and the limitations on the staff related to imposing new requirements (52.63, "Finality of standard design certifications").

In all cases, the context is clearly related to those regulations already "on the books prior to", with no requirement that the "Commission specify the regulations" and no indication that NRC should create new regulations to be introduced within a DC rule.

Interestingly, the main listing of requirements which an advanced design must meet for certification (52.47, Contents of applications), does not contain the phrase, "...

regulations applicable and in effect at the time the certification was issued ... ". Rather, an applicant is implicitly (and logically) expected to comply with the regulations as they exist at the time of application, not at the time of certification. The only explicit exception to this is in the case of Unresolved Safety Issues and medium- and high-priority Generic Safety Issues, where the application must address those issues "...

identified in the version of NUREG-0933 current on the date six months prior to application ... " -- an obvious indication that the Commission is opposed to new rules

- being imposed on an applicant after his application is submitted.

SECY-88-147, "Integration Plan for Closure of Severe Accident Issues" SECY-88-248, "Implementation of Severe Accident Policy" SECY-89-013, "Design Requirements Related to the Evolutionary ALWRs" SECY-89-178, "Policy Statement Integration" SECY-89-311, "Resolution Process for Severe Accident Issues on Evolutionary LWRs" SECY-89-334, "Recommended Priorities for Review of Standard Plant Designs" These six SECYs, most of them quoted extensively in ref. (b), show various aspects of the early staff development of process positions on identifying and resolving the generic technical and severe accident issues associated with ALWRs.

SECY-88-248 proposed a rulemaking to Part 50 to require that technical information on severe accidents be included in future applications, but did not propose any specific new requirements. It did not mention the concept of "applicable regulations."

SECY-89-013 first identified the staff's intent to pursue certain areas of the design review in a manner that may go beyond the present acceptance criteria defined in the Standard 7

Review Plan. It did not mention the concept of "applicable regulations," and as discussed earlier, post-dates utility requirements for the cited areas/issues.

SECY-89-178 proposed to reverse the proposal in SECY-88-248 to initiate generic rulemaking. Instead, it proposed a plant specific approach to severe accident issues. It stated: "It is expected that those severe accident design features provided by the future designs will be generally codified by the certification rulemaking applicable to each. In this manner, the certification rulemaking will bring generic closure of the severe accident issues for a class of plants subsequently using the certified design .. " (emphasis added). This approach, fully supported by industry, did not mention the concept of embedding new "applicable regulations" in DC rules, only codifying design features.

SECY-89-311 proposed to resolve issues on a design specific basis, not generically, thus marginalizing the intended role of the URD in the process of resolving technical and severe accident issues. It proposed to interpret the Commission's Severe Accident Policy Statement which set forth the Commission's expectation that plants will achieve a higher standard of severe accident safety to mean that new generations of reactor designs should be demonstrably safer. It stated: "The certification process will include consideration of all features of a particular design and will result in codification of that design into the Commission's regulations." (emphasis added). Again, this approach did not mention the concept of embedding new "applicable regulations" in DC rules, only codifying designs and design features.

Commission SRMs on the six 1988-89 SECYs cited above:

In the SRMs on these SECYs, the Commission:

reaffirmed its expectation, stated in the Severe Accident Policy Statement, that vendors engaged in designing new standard plants will achieve a higher standard of severe accident safety performance than their prior designs. None of these SRMs directed the staff to establish new regulations.

indicated again its belief that a new design can be shown to be acceptable for severe accident concerns if it addresses the TMI requirements, unresolved safety issues, the medium and high priority generic safety issues, and the severe accident vulnerabilities exposed by a completed PRA.

specifically directed the staff not to impose industry goals that go beyond the regulations as new requirements for individual designs (also see below) directed the staff to assign equal priority to the review of ABWR, System 80+, and the EPRI URD, with a particular focus during the URD review on resolving those evolutionary plant issues which will carry over into the passive plant URD; and to ensure that the SER on the URD for passive plants is completed prior to submitting proposed licensing review bases for passive plants.

stressed the importance of consistency (i.e., generic resolution) for specific issues.

8

directed that the staff elevate to the Commission, as early as possible all issues dealing with policy considerations (e.g., instances where the staff proposes to depart from current regulatory requirements) did not ask for or mention the concept of "additional applicable regulations".

SRMs on SECYs89-102 and 89-311: Industry Goals and their use in Regulation:

The Commission provided direction to the staff in its SRMs on SECY-89-102 and SECY-89-311 that the NRC will not use industry's goals that go beyond the regulations as the basis to impose new requirements. The above history and ref. (a) both show how these applicable regulations had industry goals and objectives at their origin.

SRM on SECY-89-311:

"Vendor or EPRI goals that go beyond our regulations should not be imposed as requirements for individual designs, but LRBs and SERs for specific designs should include a discussion on how the design compares with the EPRI URD" SRM on SECY-89-102 (Implementation of Safety Goals)

"The NRC will not use industry's design objectives as the basis to establish new requirements" Interactions with the NRC after these SRMs and following the Sept. 1989 Commission briefing (see ref. (a)) led to clear Commission guidance on priority for NRC review of the URD. These interactions also led to clear Commission guidance that the key safety and licensing issues should be resolved generically in the context of the URD review.

In particular, the Commission emphasized generic resolution of source term, hydrogen, and containment performance issues in the context of the URD.

Commission Policies on Use of its Backfit Rule and its Safety Goal:

In its SRM on SECY-89-102, (Implementation of Safety Goals), the Commission stated:

"The Commission agrees that is must not depart from or be seen as obscuring the arguments made in court defending the Backfit Rule.

"These arguments clearly established that there is a level of safety that is referred to as "adequate protection". This is the level that must be assured without regard to cost, and, thus, without invoking the procedures required by the Backfit Rule.

Beyond adequate protection, if the NRC decides to consider enhancements to safety, costs must be considered, and the cost-benefit analysis required by the Backfit Rule must be performed. The Safety Goals, on the other hand, are silent on the issue of cost, but do provide a definition of "how safe is safe enough" that should be seen as guidance on how far to go when proposing safety enhancements, including those considered under the Backfit Rule."

9

Applicable regulations embedded in DC rules compromise this Commission position on the Backfit Rule, by bypassing Commission regulations that require an "adequate protection" standard be met prior to imposing new generic regulations.

Related to the Safety Goal aspects of this SRM, it is important to recognize that none of the proposed applicable regulations can be justified on the basis of Commission Safety Goal policy. Thus, applicable regulations violate the Commission's guidance that says safety goals "should be seen as guidance on how far to go when proposing safety enhancements, including those considered under the Backfit Rule."

SECY-90-016 and Commission SRM on SECY-90-016:

Despite the guidance in Commission SRMs on SECY-89-102 and SECY-89-311, the NRC Staff imposed a number of utility requirements as Staff requirements on evolutionary ALWRs in SECY-90-016. Many issues in this SECY were precursors to "Additional Applicable Regulations".

In March 1990, in response to SECY-90-016, EPRI forwarded to the ACRS and staff a detailed accounting of text from the URD that demonstrated that all issues being raised by Staff were being addressed in the URD, albeit in some cases with different technical approaches than those Staff was proposing. In many cases, the industry requirement on itself was more stringent than the proposed staff position. The cover letter for this analysis of SECY-90-016 issues stated: "We consider the technical resolution of each of these issues to be first priority. Questions such as "should the technical resolution become a regulatory requirement (e.g., codified in regulations)?" are policy questions that should not hold up the technical resolutions. In general, the industry opposes the imposition of utility goals that go beyond regulations as regulatory requirements, since margin to the regulations provides assured licensability and investor confidence. The Commission supported this view in its SRM on SECY-89-311." (John Taylor [EPRI] to Carlyle Michelson [Chairman, ACRS], March 5, 1990)

In its SRM on SECY-90-016, the Commission accepted some of the staff proposals, but rejected others. Commission approval of Staff requirements for ALWRs that went beyond current regulations were based primarily on the technical aspects or "enhanced safety" implications of each new requirement. As industry and NRC resolved technical differences on each Staff proposal, the Commission became satisfied that the design requirements were appropriate and eventually concurred with Staff on most positions.

Commission concurrence was with the appropriateness of the design requirement, not with the direction of using a rulemaking proceeding (either preceding or embedded within design certification rules) to impose these requirements as regulations.

In its SRM on SECY-90-016, the Commission specifically disapproved a recommendation to impose as requirements on ALWRs more stringent goals for core damage frequency and mean frequency of large release. (Note that the proposed core damage frequency goal was identical to the EPRI URD requirement; and that the URD requirement for frequency of large release was more stringent than the proposed staff requirement.) In 10

its disapproval, the Commission cited its SRM on SECY-89-102, and stated: ... the NRC should not adopt industry objectives as a basis for establishing new requirements."

SECY-90-377, "Requirements for Design Certification under 10 CFR Part 52" and its SRM This SECY and its SRM dealt with the following major topics: Development of Regulatory Guidance, IT AAC, Level of Detail, Issue Finality, Two-Tiered Approach, Flexibility, Prototype Requirements of New and Innovative Technology, and Schedule.

The concept of "applicable regulations" was not mentioned in either document. The SRM did discuss briefly the resolution of severe accident issues: " ... in finalizing the EPRI Requirements Document, the staff should review the document ... to ensure that it is sufficient to allow the staff to evaluate the resolution of severe accident issues and the incorporation of experience from operating events in current designs."

Severe Accident Rulernaking for ALWRs:

The Commission policies related to generic rulemaking on severe accidents for ALWRs are primarily developed in its Advanced Reactor Policy Statement and Severe Accident Policy Statement (both discussed earlier); in the SOC to Part 52 (also discussed earlier);

in SECY-91-262 and the Commission SRM on this SECY; and in the 1992 Advanced Notice of Proposed Rulemaking (ANPR) for generic rulemaking on severe accidents for AL WRs (SECY-92-292) and the Commission's SRM on that ANPR.

Regarding the SOC to Part 52, the Commission's objectives were to resolve any generic questions that are applicable to multiple designs, via generic rulemaking, if necessary, and to incorporate any new standards in Part 50 or Part 100, as appropriate (see section above on SOC). Resolving such issues prior to individual certifications would encourage stability, predictability, and standardization. This path was considered, evaluated, and debated. The Commission initially supported generic rulemaking (e.g.,

see Part 52 SOC and SRMs above, and Commissioner Curtiss comment in ref. (a)). The industry was opposed to generic rulemaking, primarily for lack-of-need and schedule reasons. The staff's analysis in the supplemental paper to SECY-96-077 (ref. (b))

acknowledges the schedule issue -- an issue which probably contributed to the Commission decision to defer generic rulemaking.

Although SECY-89-178 initially proposed a plant-specific approach to resolving severe accident issues, it was not until 1991, when SECY-91-262 again proposed this approach that the question was resolved. This SECY and its associated SRM were the key documents that marked the decision point away from generic severe accident rulemaking for AL WRs, and addressed how the technical and severe accident issues would be resolved in the absence of such a rulemaking. It is critical to note that neither this SECY nor its associated SRM mention the concept of "applicable regulations".

SECY-91-262 analyzes in detail the advantages and disadvantages of generic rulemaking in resolving selected technical and severe accident issues. It presents the concept of "codification of new standards" in a way that industry continued to logically interpret 11

as codifying the design features, not codifying new regulations, fully consistent with all the prior SECYs and SRMs cited above and the historical record in refs. (a) and (b).

The Commission's SRM on SECY-91-262 was equally silent on the concept of embedding new regulations in DC rules. It approved the recommendation to proceed with design-specific rulemakings through individual design certifications to resolve selected technical and severe accident issues for the ABWR and ABB/CE System 80+

designs. However, it still directed the staff to proceed with generic rulemaking as quickly as possible where appropriate for evolutionary and passive designs.

A "Greybeard" Committee was convened in 1992 to review the 10 CFR 52 licensing process for the GE ABWR. It was to determine if the NRC staff could make a final safety decision for the GE ABWR based on the design information available. It reported its conclusions to Dr. Murley in a July 31, 1992 letter, and did not mention any need for new regulations to resolve the technical issues it identified -- no mention of AARs.

The formal decision to abandon generic severe accident rulemaking for advanced reactors, following the SRM on SECY-91-262, was made in the course of proceedings on the NRC's Sept. 1992 ANPR for generic rulemaking on severe accidents for ALWRs (see SECY-92-292). Neither this SECY nor its associated SRM mentioned the concept of "applicable regulations". In the "Purpose" and "Basis for the Rulechange" discussions in the proposed rule, and in all of the discussions of options to be considered by the Commission, there was no mention of any regulatory "necessity" for codifying severe accident regulations, either in a generic rulemaking or embedded in a DC rule.

The Commission issued an SRM after the public comment period (14 Sept. 1993), which directed the Staff to defer any generic rule making on severe accidents until after certification of the ABWR and System 80+. Therefore, the Commission clearly intended that no generic severe accident rulemaking be considered for evolutionary plants -- the same plants that the Staff is now proposing to impose generic rulemaking on, embedded in the design-specific certification rules, thus bypassing the required deferral and the required scrutiny of backfit criteria.

Embedding new regulations within a DC rule enables NRC to impose new regulations without conducting the backfit analysis required for rulemaking. The fact that these regulations would not withstand such a stand-alone analysis was a contributor to the failure of generic severe accident rulemaking to move forward, and appears to be one perceived "benefits" of the concept of applicable regulations: it appeared to offer the opportunity to bypass the scrutiny of the backfit requirements of rulemaking.

The staff position that applicable regulations are merely "new standards for review" supports the industry view that they need not/should not be embedded in the DC rules.

However, this position is circular. If they are only standards for review that don't need to be treated as backfits, then they don't need to be in the rule. If, however, the staff position is that they must be in the rule (i.e., they are more than just review standards),

then they should be treated as new regulations that must meet backfit criteria.

12

In summary, neither the staff nor the Commission discussed "applicable regulations" or the concept of embedding new regulations inside DC rules during the four years of regulatory policy development, leading up to and including the Commission's SRM on SECY-91-262 that approved" ... proceed[ing] with design-specific rulemakings through individual design certifications to resolve selected technical and severe accident issues

... " The history reviewed above, plus the historical review in refs. (a) and (b) attest to this. This extensive historical record clearly indicates that the Commission fully intended to resolve these selected technical and severe accident issues in the context of a rulemaking that certified the design features that it had approved -- no more and no less. Nowhere in this decision process did the staff request, or the Commission direct the staff, to embed new regulations inside DC rules. Clearly, based on this record, the Commission decision to abandon generic rulemaking and proceed with design specific rulemakings as the means to resolve these issues was made based on the clear and well-documented presumption that these issues can and would be resolved by certifying the designs that incorporated the agreed-upon resolutions to these issues. Industry fully supported this Commission position. As shown below, both the Commission and the industry were surprised when the concept of "applicable regulations" emerged in late 1992, after the Commission decision on generic rulemaking in its SRM on SECY-91-262.

What Were the "Fundamental Assumptions" for Staff Review of ALWRs?

The staff position is that incorporation of the new (additional) applicable regulations into the final design certification rules was a fundamental assumption of the staff during its reviews. However, there has been some confusion over exactly what the staff needed in order to conduct its reviews. Clearly, the concept of applicable regulations was invented in 1992, when generic rulemaking was being abandoned as the means to resolve these issues. By the time this new concept was introduced, most technical issues had already been resolved without the "benefit of applicable regulations. Granted, the technical resolutions of these issues (i.e., the design features),

and Commission approvals of these resolutions would have been "fundamental assumptions" during the review process; but the concept of applicable regulations could not have been a "fundamental assumption" for these reviews, since it was not formulated until after most of the issues were resolved. The staff confirmed that it did not need any additional process or guidance from the Commission in its first conclusion from SECY-91-262:

"Although subject to challenge in the design certification proceedings, the Commission's current process and guidance on severe accident and selected design issues [e.g., SRM on SECY-90-016] is sufficient for the staff's review of these issues for the individual evolutionary designs." (emphasis added)

Clearly, the process in place in 1991, based on the concept of codifying the agreed-upon design features, was adequate. The concept of applicable regulations (which was not articulated for another year after SECY-91-262) could not have been "fundamental" if the staff didn't foresee a need for it.

13

[Note that the solution to the dilemma discussed in the supplemental paper in SECY-96-077 -- the solution to the time constraints in the early 1990s that precluded generic rulemaking, vs. the downsides of design specific rulemaking, was in following the Commission guidance to resolve these issues generically in the context of the URD, and to use the SER on the URD as the basis for staff analysis and documentation of "fundamental assumptions" and positions on each of the "applicable regulation" issues. That approach was supported by the Commission but never fully applied.]

SECY-92-287, "Form and Content of a Design Certification Rule" SECY-92-287 and an accompanying Commission brief on Sept. 8, 1992, were the first occurrences of any discussion of the concept of "applicable regulations." This SECY requested the Commission to "approve the staff's position that the resolution of selected design-specific technical and severe accident issues be approved in the rule that certifies the design, and be treated as "applicable regulations"." As shown in ref. (a),

this new concept came as a surprise to the Commission, given the history of NRC policy decisions that established that issues resolved in Tier 1 or Tier 2 of a DC rulemaking were resolved without need for further regulation, and that codifying design features in a DC rulemaking would satisfy the relevant Commission policies.

In its SRM on SECY-92-287, the Commission directed the staff to review the statements in its prior SRM on SECY-90-377 and resolve the apparent inconsistencies between the direction provided in that SRM and the recommendations in SECY-92-287. It also asked the staff to review the pros and cons of options for listing generic requirements applicable to all DC applicants. In response, the staff issued SECY-92-287A in May 1993, and the Commission issued an SRM on SECY-92-287 /298A in June 1993. In that SRM, the Commission did not explicitly approve the staff request on "applicable regulations."

It remained silent on the issue, and directed the staff to seek public comment on its proposed general approach to the form and content for a DC rule.

Margins to the Regulations:

As stated in ref. (a), a prerequisite for new nuclear construction in the U.S. is stable regulation that clearly establishes for all U.S. plants a consistent definition of what is considered adequate protection of public health and safety. In contrast to this stable policy base, design requirements established by future owners must address the utility interests that go beyond public safety; and must be flexible, so that industry can decide how to best comply with policy-based regulations in the most cost-effective way, and specifically so industry can strategically design-in the extra margins needed for investment protection, operational flexibility and performance, flexibility in siting and emergency response, and assured licensability (e.g., margin to satisfy both analysis and R&D uncertainties). Industry should expect that these extra margins, which are not needed for assuring adequate safety, or for meeting regulatory requirements, would not be codified.

Also contained in ref. (a) was the following statement by Ed Kintner, Chairman of the ALWR USC from 1986 to 1993, from his statement at a June 4, 1990 Commission brief:

14

"One of the reasons the Requirements Documents impose requirements beyond existing regulation is to provide some additional regulatory margin so that there will be greater assurance that plants designed and built to these requirements could be licensed and operated without long and costly delays. We intended that the Requirements Document would become an important mechanism towards stabilization through that means and because this could be the framework for the beginning of safety review. If these matters are agreed to as a generic matter in advance, then it ought to be easier for the Staff and everyone else to come to conclusions about the matters affecting safety.

"I would like to point out the Requirements Documents are requirements, they are not just targets. It's intended that all reasonable steps will be taken to achieve those requirements with or without additional actions on the part of the NRC Staff. These requirements are not a public relations ploy. We do need to demonstrate to the public that we're providing increased assurances of safety. We should not apologize for that. But we also need to provide the same assurance to the potential owners.

"The sincerity with which the ALWR process has worked towards these objectives seems to some degree, to have been lost by the reviewers. It's understandable that having experienced more than a decade of opposite pressures, the Staff would like to take advantage of every opportunity to regulate to higher standards wherever they seem to offer clear advantages. Doing that has negative aspects. The regulatory process, if carried out on that basis, can result in depreciation of enthusiasm felt by the utilities and their suppliers when their strong effort to provide additional safety and reliability in fundamental ways are quickly absorbed in regulation."

Experience has demonstrated that the only way to achieve stability and predictability is to move beyond pencil-sharpening, knife-edge decisions on adequacy of design and operation. The Commission had a stable and predictable regulatory basis for all U.S.

plants when Part 52 became part of the regulations. That legal basis has not changed.

There is still only one definition and policy basis for regulations today -- adequate protection of public health and safety. Industry vastly exceeded this regulatory basis in ALWR designs in order to achieve stability and predictability. "Applicable regulations" would raise the crossbar without the proper application of the Commission's own policies and rules that govern the setting of safety standards. This would destabilize the licensing process.

An argument has been made that applicable regulations could achieve stability and predictability for the NRC, even if these goals are not met from an industry perspective.

Industry has long believed that stability and predictability in Part 52 implementation is equally essential to both NRC and industry. Industry has never understood the NRC staff contention that embedding applicable regulations in DC rules provides stability and predictability for NRC. From industry's perspective, they are just as destabilizing for NRC as they are for industry.

15

( :

Industry must have the ability to exceed the stable regulatory framework for both design and operational matters, to set its own standards that address utility interests that go beyond public safety. Industry needs the ability to establish and maintain additional margins beyond regulations for investment protection, operational flexibility and performance, flexibility in siting and emergency response, and assured licensability. These margins benefit both industry and NRC. If these margins are absorbed into regulation, the same resulting instability that is inflicted on industry is inflicted on NRC. If these margins are codified, the clear, unambiguous and demonstrable basis for determining the adequacy of design and operation matters is eliminated. Concerns over uncertainties, made largely irrelevant by these conservative margins to the regulations, would reemerge and dominate decision-making. Simple decisions would become complex, costly, and protracted.

Clearly, from a stability and predictability perspective, as well as from the perspective of resource expenditures and timeliness of issue resolution, maintaining an intentional margin between the regulations and the actual design and performance of ALWRs would constitute a major improvement over the regulatory process and environment for currently operating plants.

References:

(a) Letter to the Honorable Shirley Jackson, Chairman, USNRC, from the Electric Power Research Institute (EPRI): Robin Jones, R Patrick McDonald, John Taylor, and Ed Kintner, current and past Vice Presidents, Nuclear, EPRI, and current and past Chairmen, ALWR Utility Steering Committee, May 1, 1996.

(b) "History of Applicable Regulations", Attachment 9 to SECY-96-077, "Certification of Two AL WR Designs", April 15, 1996.

EPRI White Paper on AARs, prep. by G. Vine Sept. 13, 1996 16

DOCKETED US NRC NUCLEAR ENERGY INSTITUTE

• 96 JUL 26 P3 :41 Joe F. Colvin July 25, 1996 The Honorable Shirley A. Jackson Chairman U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001

Dear Chairman Jackson:

Earlier this week, we submitted to the Office of the Secretary detailed industry comments on the draft final design certification rules for the ABWR and System 80+ standard designs. This letter provides an Executive Summary of those comments, along with a copy of our detailed comment package for your information.

The success of these design certifications and the Part 52 licensing process is extremely important to the nuclear power industry and our country as a whole. We believe nuclear power will continue to play an important role in our nation's future energy supply. For this to happen, the advanced reactor designs, and the process for licensing them, must be perceived as viable by utilities, the financial community, and economic regulators. The design certification rules now before the Commission will determine whether these advanced designs and the Part 52 process are viewed as a viable option for meeting our country's future energy demands.

The safety and reliability of the General Electric ABWR and ABB/Combustion Engineering System 80+ Standard Plant designs have been clearly established through the NRC's comprehensive technical reviews and Final Design Approvals.

In addition to certifying the safety of these designs, however, the draft final rules proposed by the staff also contain post-certification process requirements that have significant implications at the combined license stage and throughout the plant lifetime.

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The Honorable Shirley A. Jackson July 25, 1996 Page 2 These process elements are crucial to the viability of the design certifications and are thus the focus of our comments on the draft final rules. For example, the rules contain provisions specifying the "finality" to be accorded design certification information, i.e., the extent to which information resolved in the design certifications will be subject to later re-review and re-litigation. Consistent with my letter to you of May 31, 1996, our comments on the draft final rules contain specific recommendations reflecting the central importance of finality in achieving the goals of Part 52 and the Energy Policy Act of 1992.

We understand that, within two weeks, the NRC staff will provide the Commission recommendations for the final design certification rules based on evaluation of the public comments received on the draft final rules. We ask that the staffs recommendations and bases be made publicly available as soon as possible so that the discussion during the August 2 7 Commission briefing may focus on any remaining process-related issues that potentially threaten the viability of these designs.

We thank the Commission for its initiatives to evaluate the process issues raised by these design certification rules in the light of the objectives of Part 52 and of the Energy Policy Act, and to carefully consider the industry comments and recommendations for resolving the identified process deficiencies in a manner that ensures their viability for future licensing use.

Sincerely, c: Commissioner Kenneth C. Rogers Commissioner Greta J. Dicus Mr. James M. Taylor (EDO)

L

Attachment A EXECUTIVE

SUMMARY

OF INDUSTRY COMMENTS ON DRAFT FINAL DESIGN CERTIFICATION RULES (SECY-96-077)

The central issues of these design certification rules concern the wor~_bility of the design certifications in the Part 52 process and whether the goals-of Part 52 and the 1992 Energy Policy Act will be achieved - - in particular, the early resolution of safety issues and creation of a stable, predictable licensing process. As we have emphasized throughout these rulemakings, the_. safety of these outstanding designs, which received formal NRG approval-in---199A,_ ~s not in question. What remains in question is whether these outstanding advanced staridara. designs will be matched by process provisions in the design certification rules that make them and the Part 52 licensing process viable options for the future.

In our August 1995 comments on the proposed design certification rules, we concluded that the rules as proposed would not be workable, would not achieve the goals of Part 52, and would not be used. Our assessment of these draft final rules is that they take one step forward and two steps backward with respect to workability and achieving key goals of Part 52 and the 1992 Energy Policy Act.

The retreat of these rules from fundamental principles of Part 52 (most notably, finality, as discussed herein) devalues the design certifications and lessens the likelihood that prospective licensees will consider the nuclear option when demand returns for safe, clean, reliable baseload generation plants.

While the Commission recognized in the 1989 Statements of Consideration (SOC) on Part 52 that many factors will determine whether new nuclear power plants are ever built in this country, their intent was "to have a sensible and stable procedural framework in place for the consideration of future designs ..." The 1989 SOC also stated, "Certainly, the Commission hopes that this [Part 52] rule will have a beneficial effect on the licensing process. In other words, the Commission hopes that effort has not been wasted on a rule which will never be used." Thus it has always been the Commission's objective to produce workable design certification rules and enable future licensees to use the Part 52 process. We appreciate that the Commission has reiterated, in their Staff Requirements Memorandum of March 17, 1995, the importance of ensuring that the design certification rules and the Part 52 process are perceived as workable by prospective licensees. As described in these comments, key goals of Part 52 and the Commission intent to produce workable design certification rules have not yet been achieved in the draft final rules.

We urge the Commission to consider carefully the recommendations herein for resolving the remaining process deficiencies in these design certification rules, consistent with the intent of the Commission to produce workable design certification rules that achieve the objectives of Part 52 and the Energy Policy Act.

Executive Summary of Industry Comments on Draft Final Design Certification Rules (SECY-96-077)

Introduction and Background 1

1. The final rules should provide Section 52.63 backfit protection for 3 changes made in accordance with the design certification rules and preclude de nova review of certified designs in certification renewal proceedings.

2. The standardized technical specifications in the Design Control 5 Document (DCD) should be accorded finality.

3. The newly proposed Section 4 should be substantially revised, 6 including deletion of proposed "operational requirements" and DCD backfit provisions.

4. These design certifications should not be used to create additional 7 "applicable regulations."

5. The Commission should adopt an appropriate scope and criteria for 9 consideration of Chapter 19 information in the "50.59-like" process.

6. The rules should incorporate all substantive provisions of the DCD 10 Introduction.

7. All Tier 2* restrictions should expire at first full power. 10

8. Clarifications should be made to the Statements of Consideration 11 (SOC) for the rules to ensure they reinforce and focus on the ITAAC verification provision.

9. The SOC for the rules should reflect NRC openness to future 11 consideration of a process that would allow design certification applicants to make "50.59-like" changes after design certification.

10. The Commission should make certain additional change process- 12 related modifications to the final rules.

Conclusion 13

In the 1980s, the NRC recognized that a new approach to the licensing and regulation of nuclear power plants was needed to correct the problems inherent in the Part 50 licensing process - - a process costly to utilities and their rate-payers and one which had become an obstacle to new orders for nuclear power plants in this country. Under Part 50 licensing, issues decided during the construction permit stage were subject to re-review and re-litigation at the operating license stage. Furthermore, under the Part 50 process, there was too low a threshold for imposition of NRC backfits on approved plant designs during construction and operation. These flaws in the Part 50 process have been the source of substantial licensing uncertainty and tremendous escalation in the cost of constructing and operating nuclear plants. Moreover, the Part 50 process was a disincentive for the development and use of standardized advanced designs - - which both the NRC and the industry believed to hold the promise of increased safety, reliability and economy.

In a major licensing reform initiative, the NRC promulgated 10 CFR Part 52 to provide for issuance of early site permits, certification of standard designs, and issuance of combined construction permits and operating licenses (COLs). Under Part 52, safety issues are resolved prior to construction and are not open to re-review or re-litigation in subsequent proceedings without meeting a defined threshhold. A fundamental objective of Part 52 is the establishment of a licensing process that will encourage and accord regulatory benefits for the development and use of standard plant designs.

As was stated in the April 1995 Notices of Proposed Rulemaking (NOPRs) for design certification of the ABWR and System 80+ standard designs, work has been underway for years to develop design certification rules that will further the Commission's goals for Part 52. Specifically, the NOPRs state that design certification rules seek to achieve, (1) the early resolution of safety issues, (2) enhanced safety and reliability of future nuclear power plants, (3) a more predictable and stable licensing process, and (4) standardization of future plants. It should be noted that these goals apply more broadly to the whole of the Part 52 licensing process, not just to design certification.

Subsequent to the promulgation of Part 52, Congress underscored and reinforced the basic objectives and principles of Part 52 in the Energy Policy Act of 1992 (EPACT). This legislation provides an explicit statutory basis for the licensing process embodied in Part 52 and confirms important aspects of the Commission's licensing authority. Subsequently, the NRC amended Part 52 to bring it into conformance with the specific provisions of the legislation.

1 Attachment A - Executive Summary

In describing the legislative approach to the new licensing process, the Senate Energy and Natural Resources Committee cited testimony underscoring that the previous (Part 50) licensing process,

... with its lack of pre-construction finality and enormous costs associated with resolving design issues after construction was complete, stood as an obstacle to the development and use of pre-approved standard designs.

The report of the Senate Committee concluded that "requiring resolution of all important safety issues and establishing the licensing criteria against which the plant will be judged in the combined license before construction begins will have several major benefits. 11 These benefits of the new licensing process were described as early resolution of safety issues, enhancement of certainty in the licensing process and the provision of objective standards for regulators to decide if a plant is safe to operate. Senator Bennett Johnston, who introduced the nuclear licensing provisions of the legislation, emphasized in Senate hearings that "[t]he whole idea (of the new licensing process) is to resolve all safety issues before construction begins." Thus, Congress recognized that early resolution of safety issues and licensing predictability are essential to successful implementation of the new licensing process.

The industry is deeply committed to the goals of Part 52, and we believe that the extent to which they are collectively achieved will determine the effectiveness of the new licensing process and the realization of The U.S. Nuclear Industry's Strategic Plan for Building New Nuclear Power Plants. These goals provide an essential underpinning for the continuance of nuclear power as a viable generating option in the future energy marketplace.

As the NRC's safety reviews confirm, the ABWR and System 80+ standard designs referenced in the proposed rules provide for substantially safer plants and therefore accomplish one of the Commission's goals for Part 52. The resolution of many complex safety issues associated with the standard plants has resulted in demonstrably improved designs that build upon over 30 years of experience in nuclear plant design and operation. Each of the standard designs contains numerous safety improvements, including features to prevent and mitigate severe accidents. One measure of the enhanced safety inherent in the standard designs is that each satisfies the Commission's safety goal policy by a large margin.

The April 1995 NOPRs reflected resolution of certain equally challenging Part 52 process issues, such as the level of detail required for design certification applications; the two-tier approach; and the definition of required inspections, tests, analyses and acceptance criteria (ITAAC). And the draft final rules improve upon 2

Attachment A

• Executive Summary

the earlier proposed rules by clarifying the nature of NRC ITAAC verification and expanding the scope of matters resolved by the design certifications. However, the draft final rules still contain significant process deficiencies, including important new positions on policy matters, which, if left unaltered, would threaten the economic viability of standardized designs, thus undermining their potential for future use and frustrating the achievement of the stated goals of Part 52. These concerns and specific recommendations for resolving them consistent with the goals of Part 52 and the EPACT are described below and in our detailed comments in Attachment B.

A principal purpose of Part 52 is to create a more stable and predictable regulatory environment by resolving safety issues during design certification such that these issues have finality in later licensing proceedings (i.e., are not subject to re-review by the NRC or re-litigation in hearings). In this regard, 10 CFR 52.63(a)(4) states that "the Commission shall treat as resolved those matters resolved in connection with the issuance or renewal of a design certification," and Section 52.63(a) prohibits backfits by the NRC except as necessary for compliance with the NRC regulations in effect at the time of certification or to achieve adequate protection of the public health and safety.

When the proposed design certification rules were issued in April of 1995, the industry found the finality provisions to be inadequate and inappropriate because the scope of issues accorded finality was too narrow, changes made in accordance with the change process were not accorded finality, and the rule did not specifically provide for finality in all subsequent proceedings. As a result, and because this issue is a cornerstone of Part 52, the industry submitted extensive comments on the proposed rule regarding finality. Although some changes were made in the draft final design certification rules, a number of key issues related to finality remain. In some respects, the draft final rules actually worsened the situation with respect to finality and reflect a growing divergence between the industry and the NRC staff on a number of key issues affecting the finality to be achieved via these design certifications.

In particular, changes that are reviewed and approved by the NRC and subject to hearing opportunity still would have no Section 52.63 backfit protection. Rather, the draft final rules state that the backfit protections of Section 50.109 would apply to such changes. As reaffirmed by NRC senior management in a public meeting on July 15, 1996, Section 52.63 would, however, apply to changes made without prior staff 3

Attachment A- Executive Summary

approval under the Section 50.59-like process. Allowing lesser backfit protection for changes made with prior NRC approval is unwarranted and would create the unduly complex situation whereby differing backfit standards would apply to different components within the scope of the standard design. To avoid such an unwieldy situation, and because the design certification change process will, in all cases, assure that changes are not adverse to safety, it is appropriate to provide Section 52.63 backfit protection to all changes made in accordance with the design certification rules, as discussed in more detail in Attachment B, Sections LB and LC.

Additionally, the industry is extremely concerned that the draft final rules may be interpreted to mean that an unconstrained de nova review of the design is required at the time of design certification renewal. Such a review would not only disregard the extensive safety reviews that undergird the original design certification, but it would also impose an enormous, unwarranted cost burden on the renewal applicant

- - and on the NRC - - by making renewal tantamount to a wholly new certification.

Rather, like Sections 52.57 and 52.59, the renewal review should focus on:

• updated data and information in the renewal application, such as relevant intervening NRC bulletins, notices, etc.

• modifications to the design certification, if any, proposed by the renewal applicant or by the NRC, consistent with the respective Part 52 requirements As discussed with NRC senior management in a public meeting on July 15, 1996, we urge the Commission to establish the necessary framework for the renewal process by including criteria consistent with the above in the design certification rules, as recommended in Attachment B, Section LD.

Furthermore, the staff has proposed two other new features in the draft final rules that are cause for considerable concern because they would eliminate finality intended to be accorded by the design certification rules. Those new features, which are discussed separately below and in Attachment B, are:

• A provision that withholds finality from the standardized technical specifications contained in the DCD, and

• A proposed new Section 4(c) that would give the NRC the right to impose backfits for operational issues.

4 Attachment A - Executive Summary

Contrary to long-held understandings and the purpose of design certification to resolve safety issues associated with the standard designs, the draft final rules state that the standardized technical specifications in the DCD will not have finality. As described in Attachment B,Section II, the Commission should reject the approach proposed by the NRC staff and provide finality to the technical specifications in the DCD, because:

• The standardized technical specifications in the DCDs are an integral part of the design certifications and have been reviewed and approved by the NRC.

Withholding finality from the technical specifications in Tier 2 would be inconsistent with established Commission policy and the design certification goals of early issue resolution, standardization and licensing certainty. In particular, the February 15, 1991, Staff Requirements Memorandum states, "The Commission agrees with the staff that the process provides issue finality on all information provided in the application that is reviewed and approved in the design certification rulemaking."

• The eleventh-hour proposal to withhold finality from the technical specifications represents a reversal of the staffs long-held and clearly stated position concerning DCD technical specifications - - a position consistent with Commission policy and on which was based the expenditure of significant resources by both the industry and the NRC. The staffs own guidance to the design certification applicants dated August 26, 1993, aptly describes the rationale as to why the technical specifications should be part of the DCD and should have finality. Specifically, this guidance stated:

The staff requires that the STS [standard technical specifications]

remain in Tier 2, because the STS are an integral part of the staff's review and approval process. Approval of the STS during the design certification affords a high degree of assurance that the as-built facility will be operated within the bounds of the SSAR.

Removal of the STS from Tier 2 may jeopardize the concept of issue preclusion since the STS would not be approved by the design certification rule. Even though plant-specific STS will be issued for the COL, the staff believes that retaining the STS within the DCD would prevent a de novo review of the SSAR used for the agency's safety finding. Review of STS changes from the STS approved in the DCD by the rule would limit the scope of the review and expedite plant licensing.

5 Attachment A - Executive Summary

• The industry has proposed a logical, effective process for giving the technical specifications finality - - consistent with long-held understandings, Part 52 goals and Commission policy - - while ensuring a single technical specifications document and change process for licensees. The industry proposal also ensures that the technical specifications can be modified later, consistent with existing industry and NRC practice, to account for lessons learned from operating experience. Attachment B discusses these attributes of the industry proposal and provides suggested implementing language for the design certification rules.

The draft final design certification rules contain a new Section 4, "Applications and Licenses Referencing This Design Certification: Additional Requirements and Restrictions." This new section includes a provision reserving NRC's right to impose backfits for operational issues as well as three former "applicable regulations" pertaining to licensee operational programs that have been redesignated as additional "operational requirements." As discussed in Attachment B,Section III, the new additional requirements and backfit provision are contrary to Part 52 and are unnecessary and inappropriate for inclusion in these design certifications.

Specifically,

• The backfit provision proposed in Section 4(c) contradicts 10 CFR 52.63 and is contrary to the purpose of Part 52 because it would allow the NRC to backfit matters resolved in the DCD without regard to the backfit restrictions of Section 52.63. Section 4(c), as written, thus would defeat a principal aim of Part 52 - - a stable and predictable licensing process - - and would be contrary to the 1991 Commission guidance on finality cited under Section 2 above. As discussed with NRC senior management in a public meeting on July 15, 1996, to the extent the NRC wishes to impose new requirements affecting the design certification - -

whether design or operational in nature - - the backfit restrictions of Section 52.63 and Section 8 of the rules should apply. Accordingly, Section 4(c) should be clarified to state that it pertains only to matters outside the scope of the standard design.

• Proposed Sections 4(a) and 4(b) contain three former operational program-related "applicable regulations" that have been relocated from Section 5 of the proposed rules and recast as additional "operational requirements." The industry considers "applicable regulations" to be totally inappropriate to include in any form in these design certification rules.

6 Attachment A - Executive Summary

In addition, contrary to Part 52, Section 4(d) of the draft final rules raises a question as to whether these design certifications can be used in Part 50 licensing proceedings.

Section 4(d) should be revised for the final rules to reflect explicit Part 52 provisions allowing reference to the design certifications by construction permit and operating license applicants under Part 50. Attachment B contains a proposed revision to Section 4 for Commission consideration in finalizing the design certification rules.

Looking beyond the pending design certification rules, the staffs position that there be no finality for operational-related information in the DCD, if adopted for the final ABWR and System 80+ rules, would establish a precedent that is especially troubling in the context of the Westinghouse AP600 design. This is because, in addition to the standardized technical specifications and other operational-related matters resolved for the ABWR and System 80+, the AP600 design certification will resolve complex and challenging issues concerning the regulatory treatment of non-safety systems (RTNSS) for passively safe plants like the AP600. The RTNSS resolution is crucial to the commercial viability of the AP600 design and, accordingly, has been the focus of enormous resources by Westinghouse, industry and NRC staff and senior management, as well as the Commission. It is essential that, like all other matters resolved in connection with design certification safety reviews, the RTNSS and other operational-related requirements be accorded finality and backfit protection consistent with Section 52.63 by the design certification rules.

The issue here is the regulatory treatment of a number of technical and severe accident features that contribute to an enhanced level of safety, well above that needed to ensure adequate protection of public health and safety. The evolution of these features, from voluntary customer requirements for enhanced safety and investment protection to regulatory requirements, is well captured in the May 1, 1996, letter to the Commission from the current and past leadership of the EPRI Utility Steering Committee. Their current status as regulatory requirements imbedded in Tier 1 and Tier 2 of these certifications is clear. The policy issue before the Commission is whether it is necessary to create "additional applicable regulations" within design certifications, which are regulations themselves, to ensure that the increase in safety margin provided by these design features is not eroded over time.

The industry has objected strongly to the NRC staff proposal to use these certifications to create additional regulations since this proposal was first made public in response to Commissioner Curtiss' question on SECY-92-287A. We are deeply concerned because this proposal is contrary to previous agreements and Commission policy guidance, sets a troubling regulatory precedent, and is unnecessary for the following reasons:

7 Attachment A - Executive Summary

• The NRC staff and the industry agree that the designs should incorporate the technical and severe accident features in question.

• The NRC staff and the industry agree that the designs do, in fact, incorporate these features, and the Final Safety Evaluation Reports explicitly verify that they are embedded in Tier 1 and Tier 2 of the certification.

• Part 52 and the design certification rules provide stringent change controls on Tier 1 and Tier 2 of the certifications.

• The existing change controls will prevent any significant erosion of the safety margins provided by these features, and the NRC staff can evaluate any proposed changes, as well as questions raised in the light of new information about their initial safety determinations, using the same facts and technical basis with which they made those determinations.

In issuing the proposed rules, the Commission specifically requested comments on whether the additional "applicable regulations" should be adopted, in whole or in part, in the design certification rulemaking. The industry responded by stating its continuing strong opposition to this proposal. We recognize that the NRC staff has included some wording changes in the draft final rules, as well as some protection against backfits to these "applicable regulations," in an effort to reduce the additional licensing risk associated with them. However the staffs latest proposal does not resolve the more fundamental concerns associated with the proposed new "applicable regulations." Specifically, as discussed in Attachment B,Section IV,

• The proposed new "applicable regulations" would be adverse to licensing stability and thus the viability of the Part 52 process. In particular, the "applicable regulations" would undermine explicit change process provisions established by the Commission in Section 52.63 by lessening intended back:fit protections for significant portions of the standard designs being certified.

• The proposed new "applicable regulations" are simply not necessary for purposes of design certification because the design enhancements that they require are already in the designs, and the design certification rules contain change restrictions that ensure the additional features are not compromised. The rationale offered by the NRC staff for their proposal does not justify the licensing instability and compromi_se of Part 52 goals that would result.

• The proposed new "applicable regulations" would constitute NRC regulation to the state-of-the-art of technology - - a troubling new regulatory paradigm that goes well beyond what is necessary to assure adequate protection of the public health and safety. In addition to creating uncertainty relative to their 8

Attachment A - Executive Summary

application to future plants, we are concerned that these watershed regulations, if adopted by the Commission, may raise questions about the regulatory threshold for current plants and might subject the NRC and current licensees to criticism that existing plants do not meet NRC regulations.

These adverse effects on the licensing stability intended by Part 52 is perceived by the industry as putting nuclear power at a competitive disadvantage relative to other forms ofbaseload generation. Accordingly, we renew our request in the strongest possible terms that the Commission reject the staffs proposal to incorporate the proposed new "applicable regulations" in the design certification rules.

Plants licensed under Part 50 are required to have safety analysis reports (SARs) that include evaluations of design basis accidents (DBAs). However, SARs are not required to evaluate severe accidents and other conditions that are beyond the design basis. Pursuant to 10 CFR 50.59, plants licensed under Part 50 are allowed to make changes in their SARs without prior NRC approval unless such changes involve an unreviewed safety question (USQ). Under Section 50.59, a change constitutes a USQ if it causes an increase in probability or consequences of an accident evaluated in the SAR.

Unlike SARs for Part 50 plants, the DCDs for the ABWR and System 80+ contain evaluations of severe accidents and other conditions that are beyond the design basis. These evaluations are contained in Chapter 19 of Tier 2 of the DCDs. In 1994, the industry and the NRC staff reached agreement on the need for special criteria for Chapter 19 evaluations in the 50.59-like process, and what those criteria should be. However, neither the proposed rules nor the draft final rules have reflected this agreement. Indeed, under the change process provisions proposed by the staff in the draft final rules, most of Chapter 19 would not be governed by the special criteria agreed upon for evaluating beyond-design basis information in the 50.59-like process. Rather, most of Chapter 19 would be subject to the criteria applicable and appropriate for evaluation of design basis information.

In public meetings on December 4, 1995, and July 15, 1996, the Director of NRR, William Russell, reaffirmed the 1994 agreement, and during the July 15 meeting, said he was "in favor of the industry recommendation to cite [in the rules all of]

Chapter 19 and then make clear that the kinds of events we're talking about are challenges that are beyond the design basis as currently used in Part 50." As discussed further in Attachment B,Section V, the approach suggested by Mr. Russell is responsive to the long-recognized need to provide special change process criteria for evaluating beyond-design basis information in the 50.59-like process, and we have 9

Attachment A - Executive Summary

proposed specific rule language for Commission consideration that would implement this approach in the final design certification rules.

In comments on the April 1995 proposed rules, the industry recommended that each of the substantive provisions contained in the DCD Introductions be incorporated into the design certification rules without modification. The industry's recommendation was based on the fact that in 1994, both the NRR and OGC staff had approved the text of the DCD Introductions word-for-word; that the contents of the DCD Introductions were essential for implementation of the rules; and that inconsistencies between the Statements of Consideration and the DCD Introductions would lead to confusion and uncertainty, detracting from the goals of Part 52.

In the draft final rules, the staff agreed with industry that the substantive provisions of the DCD Introductions should be incorporated into the final rules.

However, the staffs incorporation of the substantive provisions was incomplete.

As discussed in Attachment B,Section VI, the industry urges the Commission to incorporate all of the substantive provisions from the DCD Introduction into the final rule, including the modifications discussed with the NRC staff in public meetings on May 2 and July 15, 1996, as identified in Attachment B.

Information designated Tier 2* in the DCDs may not be changed without prior NRC approval. Section 8(b)(6)(ii) of the draft final rules for the System 80+ and ABWR identify areas for which the NRC staff would extend the Tier 2* change restrictions throughout the life of the plant. We believe that Tier 2* change restrictions are unnecessary and inappropriate after the plant first begins full power operation. As discussed in Attachment B,Section VII, Tier 2* restrictions will have served their purpose once design and construction of the plant is completed. In light of this fact, and because after first full power, control of changes to formerly Tier 2* information will be consistent with normal Tier 2 requirements, the NRC staff has not given adequate justification for continuing Tier 2* restrictions for the life of the plant.

Moreover, extending Tier 2* applicability for the life of the plant will unjustifiably perpetuate for licensees the additional complexity in the change process caused by the presence of Tier 2* information in the DCDs.

Attachment A - Executive Summary

Compounding the industry concern for unbounded Tier 2* restrictions is the related NRC staff proposal that all Tier 2* changes will require a license amendment and be subject to hearing opportunity - - even if the change does not involve an unreviewed safety question. Attachment B,Section X.C, describes why the Commission should adopt final rule provisions that require a license amendment and hearing opportunity only for Tier 2* changes determined to involve an unreviewed safety question.

The combined effect of these two staff proposals would place an onerous, unnecessary and life-long burden on future licensees. We urge the Commission to adopt final design certification rule provisions that provide for expiration of Tier 2*

restrictions after first full power and limit hearing opportunities for Tier 2* changes to those determined to involve a unreviewed safety question.

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In a Commission briefing on March 8, 1996, the NRC staff stated their agreement with the industry view of ITAAC verification, as clarified in NEI's March 5 response to SECY-96-028. Specifically, there is agreement that in making its ITAAC determinations, it is appropriate for the NRC to consider QA/QC deficiencies that are relevant and material to determining that an ITAAC has been successfully completed. Based on this understanding, the staff stated their intent to add language to the proposed design certification rules clarifying the nature of NRC ITAAC verification. We appreciate the staffs recognition of the importance of this issue and incorporation in the draft rules of appropriate ITAAC verification language. However, we believe certain statements in the Statements of Consideration (SOC) detract from the clarity and intent of the additional rule provision as a guide for future licensees and NRC staff, while other discussion in the SOC is beyond the scope of this issue and the design certification rules. Specific recommendations are provided in Attachment B,Section VIII, aimed at ensuring that the SOC reinforce and focus on the common understanding reflected in the new ITAAC verification provision.

In our August 1995 comments on the NOPRs, we proposed additional process provisions for the design certification rules to enable plant designers to incorporate qualifying generic Tier 2 changes into the standard designs via the "50.59-like" process during the multi-year period between the time of design certification and the 11 Attachment A - Executive Summary

first COL application. The changes that would be allowed under the industry proposal would not be safety-significant or adverse to the NRC staffs safety review of the design because each would first be determined not to involve an unreviewed safety question. However, such a process would be significant to the ability of prospective license applicants to complete the detailed design engineering and firm cost and schedule estimates for the plant. Thus the industry proposal is intended to enhance design and licensing certainty, consistent with objectives that are central to Part 52.

In a public meeting on December 4, 1995, NRC senior management expressed concerns with the industry's specific proposal but indicated that the staff would be prepared to discuss industry proposals for establishing a post-design certification generic Tier 2 change process after the pending design certification rules are completed. However, the SOC for the draft final rules do not reflect this openness to future discussion. Because a post-design certification generic Tier 2 change process holds significant benefits for the industry, the public, and the NRC, as described in our August 1995 comments and in Attachment B,Section IX, the SOC for the design certification rules should reflect the openness expressed by NRC senior management to future consideration of this topic.

Attachment B,Section X, discusses the need for changes to the draft final rules to address the following additional change process issues and provides specific recommended rule language for Commission consideration.

• Section 8(b)(4) should be modified to reflect the staffs intent that hearings are not mandatory on exemption requests.

• Paragraph 2.B.3 of the Statements of Consideration should be clarified to state that plant specific changes will be implemented under Section 50.59 or 50.90, as appropriate.

• A hearing opportunity for Tier 2* changes should be provided only if the change involves a USQ.

• To the extent the Commission does not adopt the recommendation discussed in Item 7 above, that all Tier 2* restrictions expire at first full power, Section 8(b)(6)(ii) should be modified to reflect the staff intent that Tier 2* material in the DCD may be superseded by information submitted with a license application or amendment.

12 Attachment A - Executive Summary

Each of the process deficiencies in the draft final rules discussed in this Executive Summary is described in more detail in Attachment B. Specific recommendations and proposed rule language for correcting the process deficiencies consistent with the goals of Part 52 are also provided. As emphasized in our August 1995 comments on the proposed rules, use of design certification rules and Part 52 is not mandatory. If potential purchasers of new power plants do not perceive that the design certification rules will accomplish the goals of Part 52, they simply will not consider the nuclear option to meet their needs. In such an event, all of the industry's and NRC's efforts will have amounted to nothing more than a costly exercise, and this country will be deprived of a key energy technology that is essential to help meet America's continuing need for a diverse, environmentally responsible energy supply. Because the disputed rule provisions do not involve issues of public health and safety, and because the industry's recommendations and proposals are fully consistent with the language and goals of Part 52 and the Energy Policy Act, we urge the Commission to carefully consider these comments and adopt the recommendations herein to ensure the workability and viability of the Part 52 licensing process.

13 Attachment A - Executive Summary

July 23, 1996 ATTACHMENT B DETAILED INDUSTRY COMMENTS ONTHE DRAFT FINAL DESIGN CERTIFICATION RULES FOR THE ADVANCED BOILING WATER REACTOR AND THE SYSTEM 80+ STANDARD PLANT (SECY-96-077)

Detailed Industry Comments on the Draft Final Design Certification Rules for the ABWR and System 80+ Standard Plant Designs (SECY 96-077)

I. Finality A. Introduction 1 B. Changes approved by the NRC should have protection under 2

- C.

D.

Section 52.63 from backfits Changes made in conformance with the Section 50.59-like process should have finality A de nova review of the design is not required for design certification renewal 3

4 E. Section 6(b) should be changed to reflect the staffs intent 7 regarding finality in enforcement proceedings F. Section 6(b)(4) should be clarified regarding the finality of 7 SAMDA evaluations G. Section 8(b)(5)(vi) should be modified to clarify that a 8 Section 50.59-like change is not subject to hearing under Section 52.103 or Section 50.90 unless the change bears directly on an asserted ITAAC noncompliance or the requested amendments, respectively H. Conclusion 8 II. Finality for the Technical Specifications A. Introduction 11 B. The standardized technical specifications in the DCDs should 11 remain part of the design certifications and be accorded finality because they have been reviewed and approved by the NRC C. Withholding finality from the Tier 2 technical specifications 11 would be inconsistent with established Commission policy and the design certification goals of early issue resolution, standardization, and licensing certainty D. The staffs current proposal is inconsistent with previous NRC 12 guidance E. The industry has proposed a logical, effective process for giving 13 technical specifications finality while ensuring a single document and change process F. July 15 discussion with NRC senior management 14 G. Conclusion 16 1

III. Newly Proposed Section 4 Should be Substantially Revised, Including Deletion of the Proposed Additional Operational Requirements and Backfit Provisions A. Introduction 18 B. The backfit provisions in Section 4(c) contradict 10 CFR 52.63 18 and are incompatible with the purpose of Part 52

1. Proposed Section 4(c) is not needed to enable the NRC to 19 impose operational requirements outside the scope of the DCD

2. Contrary to Section 52.63, proposed Section 4(c) would enable 19 back.fitting of operational-related requirements of the DCD

3. Contrary to Section 52.63, proposed Section 4(c) would lessen 20 restrictions on back.fitting of design requirements of the DCD

4. Proposed Section 4(c) is contrary to clear Commission policy 21

- C.

D.

guidance

5. Summary The design certification rules should not be used to impose additional "operational requirements" Section 4(d) should be revised to reflect the Part 52 provisions 21 22 24 allowing reference to the design certifications in Part 50 proceedings E. Conclusion 25 IV. "Applicable Regulations" A. Introduction ., 27 B. The proposed new "applicable regulations" would constitute NRC 27 regulation to the state-of-the-art of technology C. "Applicable regulations" would be adverse to licensing stability 28 and thus the viability of the Part 52 process

1. "Applicable regulations" would undermine explicit change 28 process provisions established by the Commission in Section 52.63

2. It is unnecessary and inappropriate to include new "applicable 28 regulations" in design certification rules D. The wording of the additional "applicable regulations" is vague 30 and inconsistent with previous Commission directions E. The "applicable regulations" for operational issues should be 30 deleted from the rules F. The NRC staff proposal is contrary to the purpose of the design 31 certifications and Commission policy guidance

1. What was the Commission's original intent regarding 31 "applicable regulations?"

2. What was intended by the Commission guidance that 32 technical and severe accident issues be resolved via design-specific rulemakings through the design certifications?

ll

G. The NRC staff's latest proposal does not resolve the concerns 33 associated with "applicable regulations" H. Conclusion 34 V. Application of the Section 50.59-like Change Process to Chapter 19 Information A. Introduction 35 B. If the Commission decides not to restrict application of the 50.59- 36 like process to Section 19.8 for the ABWR or Section 19.15 for the System 80+, then the Commission should apply the criteria of Section 8(b)(5)(iii) to all of Chapter 19

1. In addition to Section 19E for the ABWR and Section 19.11 for 36 the System 80+, the other sections in Chapter 19 contain evaluations of severe accidents and other beyond-design basis conditions

2. The staff's proposal would impose undue burdens on both the 38 industry and the NRC with no corresponding safety benefit C. The draft final rules are inconsistent with the resolution of this 38 issue proposed by NRC senior management D. NRC senior management proposal at the July 15, 1996, public 39 meeting E. Conclusion 41 VI. The Rules Should Incorporate All Substantive Provisions of the DCD Introduction A. Introduction 43 B.

• The NRC staff's incorporation of substantive provisions was 44 incomplete C. July 15 public meeting discussion 47 D. Conclusion 48 VII. All Tier 2* Restrictions Should Expire at First Full Power A. Introduction 50 B. The NRC staff's rationale for continuing Tier 2* change 51 restrictions after first full power fails to explain the significance associated with the extension

1. Equipment seismic qualification methods 51

2. Piping design acceptance criteria 52

3. Fuel burn-up limit 52

4. Control room human factors engineering and human factors 53 engineering design and implementation C. Conclusion 53 Ill

VIII. NRC ITAAC Verification A. Introduction 55 B. The statements of consideration should be clarified to ensure 55 they reinforce and focus on the ITMC verification provision C. Discussion of anticipated quality requirements for licensee 56 ITMC activities :i,s not germane to NRC ITMC verification and should be deleted from the SOC D. SOC discussion of licensee documentation and submittals 56 regarding ITMC verification is beyond the scope of the certifications and should be deleted E. Conclusion 57 IX. Post-Design Certification Tier 2 Change Process A. Introduction 58 B. A post-design certification Tier 2 change process holds 58 significant benefits for the industry, the public, and the NRC C. The statements of consideration for the design certification rules 59 should reflect the openness expressed in public meetings to future consideration of a post-design certification Tier 2 change process D. Conclusion 60 X. Additional Change Process Issues A. Hearings on exemption requests by licensees 61 B. Paragraph 2.B.3 of the Statements of Consideration should be 61 clarified to state that plant specific changes will be implemented under Section 50.59 or Section 50.90, as appropriate C. A hearing opportunity for Tier 2* change is unnecessary and 62 should be provided only if the change involves an unreviewed safety question (USQ)

D. To the extent the Commission does not adopt the 62 recommendation that all Tier 2* restrictions expire at first full power, the Statements of Consideration should be modified to reflect the staff intent that Tier 2* material in the DCD may be superseded by information submitted with a license application or amendment IV

Detailed Industry Comments on Draft Final Design Certification Rules for the ABWR and System 80+ Standard Plant Designs SECY 96-077 LIST OF TABLES Table 1 Suggested Rule Language for Resolution of Finality Concerns 9 Table 2 Suggested Additional Provision for Section 2(d)(5) of the Final 17 Rules to Clarify the Status of the Proposed Technical Specifications in Chapter 16 of Tier 2 Table 3 Suggested Language for Section 4 of the Design Certification 26 Rules Table 4 Suggested Rule Language on Chapter 19 Consideration in the 42 Section 50.59-like Change Process Table 5 Suggested Rule Language for Section 9(b)(3). 49 Table 6 Suggested Rul~ Language for Section 8(b)(6) 54 V

DETAILED INDUSTRY COMMENTS ON DRAFT FINAL DESIGN CERTIFICATION RULES (SECY-96-077)

I. Finality A. Introduction A principal purpose of Part 52 is to create a more stable and predictable regulatory environment by resolving safety issues during design certification such that these issues have finality in later licensing proceedings (i.e., are not subject to re-review by the NRC or re-litigation in hearings). In this regard, 10 CFR 52.63(a)(4) states that "the Commission shall treat as resolved those matters resolved in connection with the issuance or renewal of a design certification," and Section 52.63(a) prohibits backfits by the NRC except as necessary for compliance with the NRC regulations in effect at the time of certification or to achieve adequate protection of the public health and safety.

When the proposed design certification rules were issued, the industry found the finality provisions to be inadequate and inappropriate because the scope of issues accorded finality was too narrow, changes made in accordance with the change process were not accorded finality, and the rule did not specifically provide for finality in all subsequent proceedings. As a result, and because this issue is a cornerstone of Part 52, the industry submitted extensive comments on the proposed rule regarding finality.

When the draft final design certification rules were issued, some progress had been made in this area. For example, the NRC broadened the scope of issues accorded finality to include: all nuclear safety issues associated with the information in the Final Safety Evaluation Report (FSER) and any supplements to it; the generic Design Control Document (DCD), including referenced information that is intended as requirements, such as referenced proprietary information; and the rulemaking record. The NRC also added language to the rule regarding the sufficiency of the design which provides additional protection against backfits, and expanded the types of proceedings in which the matters covered by a design certification are accorded finality.

However, we noted with concern a growing divergence between the industry and staff regarding certain provisions related to finality under Part 52. In the industry's view, the positions taken on these issues in the draft final rule and the public meeting on May 2, 1996, would significantly erode certainty and predictability. Specifically:

• NRC-approved changes to Tier 1, Tier 2* and unreviewed safety questions (USQs) do not have protection under 10 CFR 52.63 against subsequent NRC backfits; 1

• Tier 2 changes made in accordance with the Section 50.59-like process may be deprived of finality; and

• A de novo review of the standard design may be required for design certification renewal.

To ensure that Part 52 license proceedings have the viability intended by Part 52 and the Energy Policy Act of 1992, we believe that the NRC should not be allowed to impose backfits after the NRC has approved a change within the scope of the standard design certification unless the stringent backfit criteria of Section 52.63 are satisfied. Similarly, finality should be provided to changes made in accordance with the design certification change process. Moreover, language is needed that ensures an appropriate focus for NRC review in connection with design certification renewal. Finally, the standardized technical specifications should remain part of the certification and be accorded finality, consistent with previous Commission policy and extensive NRC/applicant interactions. Each of these issues is discussed in detail below. The status of the standardized technical specifications is discussed separately in Section II. Additionally, Sections E, F, and G, below, discuss important clarifications to the finality and change process provisions in Section 6(b) and 8(b) of the rules.

B. Changes approved by the NRC should have protection under Section 52.63 from backfits All changes to Tier 1 and Tier 2*, and changes to Tier 2 that involve an unreviewed safety question or a change in the technical specifications, require prior NRC approval as well as an opportunity for a public hearing 1

• The draft final rules provide that these approved changes would not have finality under Section 52.63(a). (See Statements of Consideration (SOC) Sections II.A. I and II.B. 7; Rule Sections 6(b)(3) and 8(b)(6)(i); and statements by the NRC deputy general counsel at the NRC public meeting on May 2, 1996, Tr. 62-63.) Thus, such changes would be subject to potential NRC backfits under 10 CFR 50.109, which allows the NRC to impose backfits meeting a cost-benefit standard that are not otherwise required to assure adequate protection of public health and safety. As stated in our August 1995 comments on the proposed rules and explained more fully below, we believe that such changes should have finality under Section 52.63 after they have been approved by the NRC.

The more restrictive change control processes for changes to or affecting Tier 1, Tier 2*, or Tier 2 changes involving a change to the technical specifications or a USQ are appropriate and consistent with the generally greater safety significance 1 While we generally agree with the rules' provisions in this regard, we do not agree, as discussed in Section X.C of this attachment, that Tier 2* changes that do not involve an USQ should be subject to a hearing opportunity.

2

of this information relative to Tier 2 information. As the NRC staff has observed in public meetings on Dec. 4, 1995 and July 15, 1996, a more restrictive process is also consistent with the Part 52 goal of standardization. However, it does not follow that once such changes are implemented in accordance with design certification requirements that they should lose Section 52.63 backfit protection, or that different backfit provisions should apply to changes made under differing provisions within Section 8 of the rules. Indeed, the staff's proposal would have the effect of applying different backfit standards to different components within the scope of the standard design. For example, unchanged components would be subject to Section 52.63 whereas modified components would be subject to Section 50.109. As a result, the staff's proposal would create undue complexity and the potential for confusion.

Additionally, we note that the draft final rules, supported by the Statements of Consideration, would accord Section 52.63 backfit protection to changes made without prior NRC approval under the "50.59-like" process. As discussed in the following section, we support this result for the final rules. It would be illogical not to accord such protection to other Tier 2 and Tier 1 changes considering these would be subject to a more rigorous change process, including prior NRC staff approval and a public hearing opportunity.

Furthermore, by subjecting approved changes to backfits under Section 50.109 rather than Section 52.63, the NRC would be creating uncertainty and instability.

In particular, for the affected portion of the standard design, the benefits of Part 52 would be lost. In light of the substantial increase in safety achieved by these new standardizedl designs, such a result is clearly unwarranted. Also, depriving approved changes of protection under Section 52.63, could have the effect of discouraging changes that might actually increase the safety or effectiveness of the design. For all these reasons, the Commission should modify the rules to accord Section 52.63 backfit protection to changes that have been approved by the NRC.

C. Changes made in conformance with the Section 50.59-like process should have finality The proposed rules included a Section 50.59-like process, whereby applicants and licensees can make changes in Tier 2 provided that such changes do not involve an unreviewed safety question. In our August 1995 comments on the proposed design certification rules, we stated that changes made under the Section 50.59-like process should have finality, and should not be subject to an opportunity for a hearing, because such changes would be within the envelope of the NRC's original safety finding on the standard design. Further, we stated that members of the public should be allowed to challenge these changes only by means of a petition under 10 CFR 2.206, consistent with the process governing such changes by Part 50 licensees.

In the draft final rules, the NRC agreed that changes properly implemented under the Section 50.59-like process are within the envelope of their original safety 3

finding and therefore should be matters resolved within the meaning of 10 CFR 52.63(a)(4). (See Section 6(b)(3) of the draft final rule.) The NRC included in Section 8(b)(5)(vi) an expedited review process, similar to that provided in 10 CFR

2. 758, for contesting whether such changes were properly implemented.

The process proposed by the NRC appears to provide an appropriate balance between stability in the licensing process and the hearing opportunity for parties seeking to raise the issue of compliance with the Section 50.59-like change process.

However, this aspect of the rule will require that NRC be attentive to assuring that only properly supported compliance contentions are subject to hearing, and that contentions regarding 50.59-like changes do not become an avenue for contesting the merits of the changes themselves.

However, at the public meeting on May 2, 1996, NRC's deputy general counsel, Martin Malsch, stated that the provision in Section 6(b)(3) of the rule may be in error, and that it may not be appropriate to give finality to 50.59-like changes*. (Tr.

42-4 7 .) For the reasons discussed in our comments on the proposed rule and in Section II.A.1 of the Statement of Considerations for the draft final rule, we believe that changes made under the Section 50.59-like process should have finality and protection under Section 52.63 against backfits. By definition, such changes do not adversely affect the safety of the standard design as approved by the NRC, and they are plainly within the envelope of the NRC's safety finding for design certification.

As such, they are entitled to finality and protection under Section 52.63 against backfits. At the public meeting of July 15, 1996, the Director of NRR, speaking for the NRC senior management committee on the design certification rules stated his support of this position as reflected in the draft final rules. (Tr. pp. 67-71.)

Therefore, the Commission should continue to include a provision in the rule which provides Section 52.63 backfit protection to Section 50.59-like changes.

D. A de novo review of the design is not required for design certification renewal In our comments on the proposed rules, the industry requested that matters resolved in the design certification rule have finality in all subsequent proceedings.

However, the draft final rules do not give finality to the DCD in design certification renewal proceedings, stating that it "would not be appropriate" to do so.

Furthermore, at the public meeting on May 2, 1996, the NRC staff stated that a de nova review of the standard design was envisioned at the design certification renewal stage. (Tr. 52-55.) For the following reasons, the Commission should modify the final rule to extend finality to design certification renewal proceedings.

To begin with, the requirement for a de nova review is contrary to the basic structure for design certification renewal in the Commission's regulations. Section 52.59 establishes a three tiered process for renewal depending upon the extent of changes from the originally certified design. Specifically, Section 52.59 states that the Commission shall issue a rule granting renewal if the design "complies with the Atomic Energy Act and the Commission's regulations applicable and in effect at the 4

time the certification was issued .... " When the standard design is unchanged from the time of design certification, a de novo review of the design is unnecessary at the time of renewal because the Commission has already determined, at the original certification stage, that the standard design provides adequate protection of public health and safety and complies with the Atomic Energy Act and the Commission regulations applicable and in effect at the time of certification - -

criteria that Section 52.63 makes applicable throughout the life of the design certification term. In other words, from both a regulatory and functional standpoint, the original design certification is in compliance with those criteria at the time of renewal.

Given the foregoing, there is no reason for the NRC to conduct a redundant de novo review at the design certification renewal stage. We would, moreover, underscore the fact that such a review would not only disregard the extensive safety reviews that undergird the original design certification, but would also impose an_

enormous, unwarranted cost burden on the renewal applicant - and, we would add, on NRC review resources - by making renewal tantamount to a wholly new certification. We believe, therefore, that the scope of the renewal review should be consistent with Sections 52.57 and 52.59 as well as the finality precept of Section 52.63(a). Specifically, the design certification rules, like Sections 52.57 and 52.59, should provide a review focus for renewal on:

• Updated data and information in the renewal application, as described below

• Modifications to the design certification, if any, proposed by the renewal applicant or by the NRC, consistent with the Part 52 requirements, as described below Updated data and information in the renewal application should consist only of an evaluation of experience between the time of certification and the renewal application. For example, Table 1.8-22 of Tier 2 of the DCD for the Advanced Boiling Water Reactor (ABWR) contains a list of relevant NRC Bulletins, Information Notices, etc. For a renewal application, it should only be necessary to update this table for the period after certification, together with an explanation of whether the new experience indicates a need for a change in the standard design in order to (1) provide adequate protection of the public health and safety, (2) ensure compliance with NRC regulations in effect at time of the original certification, or (3) provide a substantial, cost justified increase in safety per Section 52.59. NRC review of the renewal application should focus solely upon this updated data and information and any modifications proposed by the renewal applicant. Other information in the DCD need not be reviewed at the time of renewal because it is unaffected by the experience between the time of certification and renewal.

If modifications to the original certified design are proposed by the renewal applicant, Section 52.59 provides that the Commission "shall grant the amendment request if it determines that the amendment will comply with the Atomic Energy 5

Act and the Commission's regulations in effect at the time of renewal." Thus, if the applicant proposes changes in the DCD, all that is required is for the NRC to review the changes based upon the provisions of the Atomic Energy Act and the Commission's regulations in effect at the time of renewal. Accordingly, under the structure established in Section 52.59, the standard design has Section 52.63 finality at the time of design certification renewal, except to the extent that changes are proposed by the renewal applicant.

The fact that the unchanged standard design has finality would not preclude the NRC from imposing backfits that satisfy the criteria in Section 52.59. At the time of renewal, the NRC could impose a backfit under Section 52.59(a) to achieve a substantial, cost-justified increase in safety. Additionally, at any time during the life of the design certification, the NRC may, under Section 52.63, impose backfits necessary to assure adequate protection of the public health and safety or compliance with NRC regulations in effect at the time the standard design was originally certified.

Finally, if substantial changes in the design certification have been made such that the request for renewal essentially constitutes a request for approval of a new standard design, Section 52.59 states that "an application for a design certification shall be filed in accordance with Sections 52.45 and 52.47 of this part." Only in this later case would a de nova review of the design be appropriate.

Without the presence of substantial changes, a de nova review would be a wasteful expenditure of industry and NRC resources. A de nova review would also undermine the Part 52 goal of early resolution of licensing issues and a stable and predictable regulatory process. Furthermore, a de nova review at the time of design certification renewal would essentially transform the renewal process into a re-certification of the standard designs. Such a result would clearly be at odds with the Commission's purpose 'in establishing the renewal provisions of Section 52.59.

Therefore, the Commission should modify the statement of considerations accompanying the final rule and Section 6(b),to provide the DCD with finality in design certification renewal proceedings. The NRC should be allowed to impose backfits on the DCD at the time of renewal only by meeting the requirements in Section 52.63 or Section 52.59.

At the July 15 public meeting with senior NRC staff, the Director of NRR, William Russell, put forth the staff view that it was premature to define the scope of renewal review at this juncture and that this should be addressed on a later NRC rulemaking and/or future staff guidance document. It is noteworthy, however, that Mr. Russell expressed the view that "...if there is no adverse operating experience, and there are no significant changes to the rules and regulations, and the basis upon which you concluded it was acceptable is unchanged, there is no new information, then it should be a relatively straight forward review to accomplish."

(Tr. p. 53.)

The foregoing is consistent, in substance, with the renewal review criteria proposed above and compatible with the requirements now contained in Sections 52.57 and 6

52.59. Such framework review criteria can, and should, be set forth in the design certification rules to which they will apply. This would not obviate the desirability of future staff guidance documents addressing implementing details of the renewal application and review process.

Should the Commission decide, however, to defer addressing the matter of renewal review at this time, we urge that it do so on a basis, and with an explanation, that does not prejudice future consideration of the scope of issue finality in the renewal process.

E. Section 6(b) should be changed to reflect the staffs intent regarding finality in enforcement proceedings Section 6(b) of the draft final rule states that the DCD has finality in enforcement proceedings "where these proceedings reference this appendix." During the May 2, 1996, public meeting on the proposed final design certification rules, the industry questioned the meaning of the phrase "where these proceedings reference this appendix." In particular, the industry was concerned that this phrase could be construed as depriving finality to plants that reference the design certification rule in enforcement proceedings that do not explicitly reference the design certification rule. In response to industry's concern, NRC's deputy general counsel explained that the phrase was intended to limit finality of the information in the design certification rule to enforcement proceedings involving a plant referencing the rule, and that plants which do not reference the design certification rule would not be entitled to claim finality in enforcement proceedings. (Tr. 115.) The industry agrees with this clarification. Therefore, we ask that the Commission modify the last phrase of Section 6(b) to state "and enforcement proceedings involving plants that reference this appendix" to clarify the staffs intent, as shown in Table 1, below.

F. Section 6(b)(4) should be clarified regarding the finality of SAMDA evaluations Section 6(b)(4) accords finality for severe accident design alternatives (SAMDAs) for plants referencing this design certification rule "whose site parameters are within those specified in the Technical Support Document" (TSD). The industry is concerned that this last phrase could open all SAMDAs to re-review and re-litigation during a subsequent proceeding where the licensee has requested an exemption from a site parameter specified in the DCD, even though the exemption has no impact on the SAMDA. This issue was discussed during the May 2, 1996, workshop where the Office of General Counsel(OGC) staff agreed that it was not the NRC's intent to re-litigate SAMDA issues under such circumstances.

Specifically, Mr. Mizuno stated that it was the NRC's intent that an intervenor in any subsequent proceeding could challenge a SAMDA based on an exemption to a TSD site parameter only after "bringing forward evidence showing that the SAMDA analysis was invalidated." (Tr. pp. 57-63.) The industry agrees with this 7

position and recommends that Section 6(b)(4) be clarified to state that SAMDAs will have finality in subsequent proceedings absent a showing by an intervenor that the exemption to a site parameter has an adverse impact on the SAMDA evaluation. In this regard the industry believes that it is important for the language of Section 6(b)(4) to be modified rather than merely providing a clarification in the Statements of Considerations, as shown in Table 1, below.

G. Section 8(b)(5)(vi) should be modified to clarify that a Section 50.59-like change is not subject to hearing under Section 52.103 or Section 50.90 unless the change bears directly on an asserted ITAAC noncompliance or the requested amendment, respectively The draft final rule also states that the process in Section 8(b)(5)(vi) for challenging Section 50.59-like changes may be used in the pre-operational hearing under 10 CFR 52.103 and in other adjudicatory hearings. The types of changes subject to hearing after issuance of the combined license (COL) should be limited to conform to the requirements of Part 52 and the Energy Policy Act. Specifically, during the May 2, 1996, public meeting on the draft final design certification rules, the NRC's deputy general counsel stated that a Section 50.59-like change may not be subject to hearing under Section 52.103 unless the change bears directly on an asserted noncompliance with an ITAAC acceptance criterion. Similarly, he also stated that a Section 50.59-like change may not be subject to hearings on a license amendment unless the change bears directly on the amendment request (Tr. 48-49). The industry requests that the Commission modify Section 8(b)(5)(vi) of the final rules, as shown in Table 1, below, to reflect the staff's intent as stated in the meeting.

H. Conclusion Finality is essential to the viability of design certification. The draft final rules would unduly limit the matters entitled to finality, and the Commission should make changes in the rules to ensure that the standard design will have finality in future proceedings. Changes receiving prior NRC approval should have protection under Section 52.63 from subsequent NRC backfits. Similarly, Tier 2 changes made under the Section 50.59-like process should also have finality under Section 52.63. Finally, a de novo review of the standard design should not be required for design certification renewal. Table 1 suggests language for the design certification rules to accomplish these objectives.

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TABLE 1 SUGGESTED RULE LANGUAGE FOR RESOLUTION OF FINALITY CONCERNS Section 6(b).

The Commission considers the following matters resolved within the meaning of 10 CFR 52.63(a)(4) in subsequent proceedings for issuance of a combined license, amendment of a combined license, renewal of a combined license, design certification renewal proceedings (as consistent with § 6(e) herein), proceedings held pursuant to 10 CFR 52.103, and enforcement proceedings *where these proceedings :reference this appendix: involving plants that reference this appendix:

Section 6(b)(3).

Except as p:rovided in Section 8(b)(5)(vi) of this iA...ppendix, all departures fl'om Tier 2 pursuant to and in compliance with the change processes in Section 8(b)(5) of this appendix that do not l'equil'e prior NRG approval: All changes to Tier 1. Tier 2*

and Tier 2 made in accordance with the change process in Section 8.

Section 6(b)(4)

All environmental issues concerning severe accident design alternatives associated with the information in the NRC's final environmental assessment for the U.S. ABWR design and Revision 1 of the Technical Support Document for the U.S. ABWR, dated December 1994, for plants referencing this appendix whose site parameters are within those specified in the Technical Support Document. If an exemption is sought from a site parameter in the Technical Support Document. a severe accident design alternative will continue to have finality in all subsequent proceedings absent a showing that the exemption has an adverse impact on the specific severe accident design alternative evaluation.

{new) Section 6(e)

An applicant for design certification renewal shall update the application for design certification. The update shall consist of an amendment of Table 1.8-22 of Tier 2 for the ABWR and Tables 1.8-2. 1.8-3 and 1.8-8 of Tier 2 for the System 80+ to identify relevant experience between the time of certification and the renewal application. For*

each relevant experience. the updated application shall explain whether the standard design adequately accounts for the new experience and. if not. whether the new experience indicates a need for a change in the standard design in order to (1) provide adequate protection of the public health and safety. (2) ensure compliance with NRC regulations in effect at the time of the original certification. or (3) provide a substantial.

cost justified increase in safety under 10 CFR 52.59. The NRC review of the renewal application will be limited to the updated data and information and any modifications proposed by the renewal applicant.

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TABLE 1 (continued)

Section 8(b)(5)(vi)

A party to an adjudicatory proceeding for either the issuance, amendment, or renewal of a combined license or for operation under 10 CFR 52.103(a), who believes that an applicant or licensee has not complied with paragraph (b)(5) of this Section when departing from Tier 2 information, may petition to admit into the proceeding such a contention. In addition to compliance with the general requirements of 10 CFR 2. 714(b)(2), the petition must demonstrate that the departure does not comply with paragraph (b)(5) of this Section. Further, the petition must demonstrate that the change bears on an asserted noncompliance with an ITAAC acceptance criterion in the case of a Section 52.103 preoperational hearing, or that the change bears directly on the amendment request in the case of hearings on a license amendment. Any other party may file a response thereto. If, on the basis of the petition and any response, the presiding officer determines that a sufficient showing has been made, the presiding officer shall certify the matter directly to the Commission for determination of the admissibility of the contention.

The Commission may admit such a contention if it determines the petition raises a genuine issue of material fact regarding compliance with paragraph (b)(5) of this Section.

Section 8(b)(6)(i) 2 An applicant for a combined license may not depart from Tier 2* information, which is designated with italicized text or brackets and an asterisk in the generic DCD, without NRC approval. The departure r.vill not be considered a resolved issue, within the meaning of Section 6 of this appendix and 10 CFR 52.63(a)(4).

2 Section VII of this attachment identifies additional suggested modifications to Section 8(b)(6) relating to the industry recommendation that Tier 2* designations expire at first full power.

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II. Finality for the Technical Specifications A. Introduction The Statements of Considerations for the proposed rules in SECY-96-077 reflect the industry comments that there should be one set of technical specifications subject to one change process. However, the draft final rule states that the technical specifications in the DCD will not have finality. For the following reasons, we believe the Commission should reject the approach proposed by the NRC staff and provide finality to the technical specifications in the DCD.

B. The standardized technical specifications in DCDs should remain part of the design certifications and be accorded finality because they have been reviewed and approved by the NRC The technical specifications in the DCD were the result of a long and laborious development process. The staff requested that the design certification applicants submit technical specifications as part of their applications. As a result, the design certification applicants expended a significant amount of time, energy and resources in preparing technical specifications for inclusion in the DCD. Significant_

resources were also expended by the industry and staff during the NRC review process. At the conclusion of this process, the NRC staff approved the technical specifications as part of the FSER and Final Design Approval (FDA). The staffs current proposal to declare that the standard technical specifications are not part of the DCD, or that they are merely "conceptual information," in order to deprive finality to those technical specifications, would nullify the substantial efforts already expended by both the industry and NRC.

C. Withholding finality from the Tier 2 technical specifications would be inconsistent with established Commission policy and the design certification goals of early issue resolution, standardization, and licensing certainty As discussed above, the technical specifications in the DCD have been reviewed and approved by the NRC through the FSER and FDA processes and have been subject to public comment as part of the Notice of Proposed Rulemaking (NOPR). If finality is not provided to the technical specifications in the DCD, they will be subject to re-review and re-litigation in every COL proceeding, even if the COL applicants make no changes in them.

This result is contrary to the purposes of Part 52. First, it is contrary to the goal of early resolution of licensing issues because it defers to the COL proceeding approval of those elements of the technical specifications that are generic elements associated with the standard designs. Second, it will result in a loss of standardization because the technical specifications for each standardized plant could be different as a result of the review and litigation process associated with 11

issuance of a COL. Finally, requiring that the technical specifications in the DCD, which have been approved as part of NRC staff's safety review of the designs, be subject to re-review and re-litigation at the COL stage is contrary to the Part 52 goals of issue finality and licensing stability.

During the public meeting on May 2, 1996, the NRC staff stated that it does not want to provide finality to the technical specifications because it wants to be able to impose changes to account for subsequent operating experience. (Tr. 30-34.)

However, the Commission has made the policy decision that matters approved during design certification should not be subject to re-review and re-litigation, unless the stringent criteria in Section 52.63 are satisfied. Specifically, the Commission stated in its February 15, 1991, SRM on SECY-90-377, The Commission agrees with the staff that the process provides issue finality on all information provided in the application that is reviewed and approved in the design certification rulemaking.

Thus, the staff's proposal to withhold finality from the approved technical specifications based on subsequent operating experience is contrary to Commission policy, as well as the goals of Part 52.

D. The staff's current proposal is inconsistent with previous NRC guidance In the past, both the NRC staff and the industry have agreed that the technical specifications should be part of the DCD and should have finality. In fact, the enclosure to the staffs August 26, 1993, letter to the design certification applicants stated that the technical specifications should be part of the DCD and should have finality. Further, this guidance identifies a number of concerns if the technical specifications were to be removed from the DCD. For example, in addition to expressing concerns regarding the possible loss of valuable insights gained during the design certification process, this guidance states:

The staff requires that the STS [standard technical specifications]

remain in Tier 2, because the STS are an integral part of the staff's review and approval process. Approval of the STS during the design certification affords a high degree of assurance that the as-built facility will be operated within the bounds of the SSAR.

Removal of the STS from Tier 2 may jeopardize the concept of issue preclusion since the STS would not be approved by the design certification rule. Even though plant-specific STS will be issued for the COL, the staff believes that retaining the STS within the DCD would prevent a de nova review of the SSAR used for the agency's safety finding. Review of STS changes from the STS approved in the 12

DCD by the rule would limit the scope of the review and expedite plant licensing.

Moreover, this position was reaffirmed in NRC guidance issued in August 1994.

Thus, the staff's proposal is contrary to its own implementation guidance - -

guidance that formed the basis for design certification interactions.

E. The industry has proposed a logical, effective process for giving technical specifications finality while ensuring a single document and change process A second reason expressed by the NRC staff at the public meeting on May 2, 1996, for proposing to deprive the technical specifications in the DCD of finality was to address the industry's comment that there should be a single set of technical specifications subject to a single change process. (Tr. 30-31.) However, in addressing this industry comment, the staff's proposal ignores the more fundamental industry recommendation that the technical specifications be accorded finality and unnecessarily undermines Commission policy concerning finality of design certification information.

Consistent with Commission policy and long-held understandings, NEI's August 4, 1995, comments on the NOPR proposed that the technical specifications in the DCD have finality and be used by a license applicant to develop a single, integrated set of technical specifications for submittal with license applications. This integrated set of technical specifications would include the technical specifications in Chapter 16 of Tier 2, including any proposed changes, and the supplementary site-specific technical specifications developed by the license applicant. To the extent the integrated technical specifications conform to those in the DCD, they would have finality and would not be subject to re-review or re-litigation. Thus, only proposed changes and the site-specific portion of the technical specifications would be subject to NRC review and a hearing as part of the COL proceeding.

After the license is granted, the technical specifications in the DCD would no longer have any relevance to the license, and there would be a single set of technical specifications that will be controlled by the Section 50.90 license amendment process and subject to the back.fit provisions in Section 50.109. Thus, the industry's proposal provides for finality of the approved technical specifications in the DCD and ensures creation of a single set of technical specifications subject to a single change process. This approach is consistent with the goals of early issue resolution, standardization, and licensing stability, and creates a workable product for use by licensees and the NRC during operation of a plant.

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F. July 15 Discussion with NRC senior management During the July 15, 1996, public meeting between the staff and the industry, there was considerable discussion of the staff's rationale for proposing a change to the long-held position on the finality of the standardized technical specifications. This section attempts to condense from the meeting transcript the rationale put forth by the staff and provide a response. As discussed below, because of the importance of consistently applying the principle of finality as established by Part 52 and the Commission, and in light of the availability of existing processes for reflecting future operating experience into ABWR and System 80+ standardized technical specifications, as appropriate, the design certification rules should accord finality to the Tier 2 technical specifications.

1. NRC: A single change process is necessary for all plant technical specifications.

Industry: We concur. Under the industry proposal, only one process will be in effect for all of the plant's technical specifications during the period of the COL.

2. NRC: The ability to reflect future operational experience in the technical specifications will not exist if the Tier 2 technical specifications are given finality via the design certification rules.

Industry: If an issue arises that calls into question adequate protection of public health and safety, the NRC may, indeed must, take appropriate action, including the imposition of technical specifications changes, if appropriate.

Further, giving finality to the DCD technical specifications does not preclude the NRC staff from seeking voluntary improvements by COL applicants and licensees. As noted by Mr. Russell, the NRC is working effectively with licensees today in exactly such a voluntary fashion to bring about technical specifications improvements within the Technical Specifications Improvement Program. Mr. Russell stressed that the NRC has not needed to impose technical specification changes on licensees. There is no reason to think such a voluntary process would not also be effective in the context of standardized ALWR technical specifications, and therefore, this is not a reason to withhold finality from the ABWR and System 80+ technical specifications. This notwithstanding, after the COL is issued, the backfit provisions of Section 50.109 are available to the NRC for imposing changes on ALWR technical specifications, as is the case today for currently operating plants.

3. NRC: Much effort has already been put into the Technical Specifications Improvement Program for current plants, and this program should be used for ALWRs.

Industry: Much effort was also put into the generic technical specifications for the ABWR and System 80+. Moreover, it should not be presumed that future improvements to standardized technical specifications for current plants will be 14

appropriate to incorporate into the standardized technical specifications for the ABWR and System 80+. The designs and safety margins of the advanced plants set them far apart from current plants such that it cannot be assumed that changes to those industry technical specifications should be automatically imposed on ALWRs.

4. NRC: The staff would impose current plant technical specification improvements only if they can be justified under Section 50.109.

Industry: The draft final rules have no such provision. The NRC staff would not be constrained by Section 50.109 in the context of an application for a COL.

The standardized technical specifications in the DCDs must not be open to re-review by the NRC staff at COL.

5. NRC: The bracketed information is not resolved, so there will be some level of technical specifications review at COL, anyway.

Industry: The bracketed items in the DCD technical specifications are information which is preliminary at the design certification stage for which finality is not being requested. This information will be subject to NRC review and public hearing at time of COL. The industry is not concerned that this information does not have finality because the designs upon which the preliminary information is based and the framework for these technical specification parameters are finalized. However, non-bracketed information was extensively reviewed and should be resolved with finality by these design certifications.

6. NRC: The principal issue is the NRC desire to use the current plant process to incorporate those changes relating to operational matters (i.e., limiting conditions for operation, surveillance activity, frequency of surveillance, etc.).

The intent is that features of the standard design will not be backfit as a result of this process unless the criteria of Section 52.63 are met.

Industry: We appreciate that the staff does not intend to backfit the standard designs based on operating experience reviews related to technical specifications. However, as stated before, giving finality to the DCD technical specifications does not preclude the NRC from using its normal process for seeking technical specification upgrades. From the industry perspective, the principal issue is ensuring that the full benefits of design certification are achieved, consistent with Part 52 goals, Commission policy and previous understandings.

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7. NRC: The concept of using one set of technical specifications for the industry is important in the broader context of ensuring well understood and consistent regulatory requirements as it relates to conduct of inspection activities and other things.

Industry: What is important in achieving the objectives of Part 52 is that the principle of finality be consistently applied. Like all other matters in the DCDs, matters associated with the generic standardized technical specifications have already been resolved. If the COL applicant concurs that a change emanating from the Technical Specifications Improvement Program for current plants is applicable to the standard design and has overriding merit, the COL applicant/

holder may, under the industry proposal, amend its application/license to do so.

G. Conclusion Substantial effort was expended by the industry and the NRC staff in preparing and reviewing the ABWR and System 80+ standard technical specifications. As a result of this process, the technical specifications in the DCD were approved by the NRC staff as the appropriate technical specifications for these standard plants.

Depriving the technical specifications of finality is contrary to Commission policy and related NRC staff implementation guidance underlying the design certifications. Moreover the staff proposal is contrary to early resolution of licensing issues, standardization, and a stable and predictable regulatory process, objectives which are at the heart of Part 52. The process recommended by the industry ensures a single technical specifications document and change process for licensees and provides opportunity for upgrades to reflect operating experience, consistent with current practice for existing plants. Therefore, the Commission should modify Section 2(d)(l) and Section 3(e) of the rules to provide finality to the technical specifications in the DCD and should adopt the additional language proposed in NEI's comments of August 4, 1995 (repeated in Table 2, below).

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TABLE 2 SUGGESTED ADDITIONAL PROVISION FOR SECTION 2(d)(5) OF THE FINAL RULES TO CLARIFY THE STATUS OF THE PROPOSED TECHNICAL SPECIFICATIONS IN CHAPTER 16 OF TIER 2 Proposed technical specifications for the portion of the plant within the scope of the standard design. These proposed technical specification are applicable to an applicant for a combined license or operating license referencing this design certification rule, and shall be incorporated in the technical specifications in the license, except as changed pursuant to the provisions in Section 8 of this design certification rule that apply to changes to Tier 2 information. Changes in the proposed technical specifications by a license applicant are subject to NRC review and approval and a hearing as part of the license proceeding. After issuance of the combined license or operating license, the proposed technical specifications in Tier 2 have no further effect as to that licensee, and the technical specifications in the license become effective.

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III. Newly Proposed Section 4 Should be Substantially Revised, Including Deletion of the Proposed Additional Operational Requirements and Backfit Provisions A. Introduction The draft final design certification rules contain a new Section 4, "Applications and Licenses Referencing This Design Certification: Additional Requirements and Restrictions." This new section includes a provision reserving NRC's right to impose back.fits for operational issues, and three former "applicable regulations" pertaining to operational issues that have been redesignated as additional "operational requirements." As discussed below, these new additional requirements and restrictions are unnecessary and inappropriate for inclusion in these design certifications and should be deleted from the final rules.

B. The backfit provisions in Section 4(c) contradict 10 CFR 52.63 and are incompatible with the purpose of Part 52 Section 4(c) of the draft final design certification rules attached to SECY-96-077 states as follows:

Facility operation is not within the scope of this appendix, and the Commission reserves the right to impose requirements for facility operation on holders of licenses referencing this appendix by rule, regulation, order, or license condition.

The Statement of Considerations for the draft final rules states (p. 47) that this section may be used by the NRC to impose requirements for post-fuel load operational safety "for portions of the plant within the scope of this design certification, e.g., start-up and power ascension testing" (which is discussed in Chapter 14 of Tier 2 of the Design Control Documents (DCD)). Furthermore, SECY-96-077 states on page 3 that this section "preserves NRC's flexibility to back.fit future rules on operational matters such as steam generator tube plugging criteria even though such rules may affect the design incidentally." Finally, in discussions with the industry, members of the NRC staff have stated that Section 4(c) is intended to allow the NRC staff to back.fit standard design certifications without regard for the back.fit protections of Section 52.63. As the staff recognized in SECY-96-077, Section 4(c) would leave "important safety issues unresolved and subject to future litigation and back.fitting."

Section 4(c) contradicts 10 CFR 52.63 and is inconsistent with the purpose of Part 52 to the extent that it allows the NRC to impose back.fits unrestricted by Section 52.63 with respect to matters resolved in the DCD. Section 4(c), as written, thus would defeat a principal aim of Part 52 - a stable and predictable licensing process. For these reasons, Section 4(c) should be clarified to state that it pertains to matters outside the scope of the standard design. To the extent the Commission 18

imposes new requirements that affect information in the design certification, the backfi.t restrictions in Section 52.63 and Section 8 of the rules should apply.

1. Proposed Section 4(c) is not needed to enable the NRC to impose operational requirements outside the scope of the DCD There are a number of operational-related matters that are outside the scope of the DCD. For example, Tier 2 of the ABWR and System 80+ DCDs identifies that the following matters are outside the scope of the DCD:

Section 13.1 - Organizational Structure Section 13.2 - Training of Plant Staff Section 13.3.2 - Emergency Planning Section 13.4 - Review and Audits

• Section 13.5 - Plant Procedures Section 13.6 - Security Plan Section 4(c) is unnecessary to the extent that it pertains to these and other operational issues that are outside the scope of the standard design. By definition, Section 52.63 and the change control process in Section 8 of the design certification rules only pertain to matters within the scope of the standard design. Thus, the NRC is not restricted by Section 52.63 and Section 8 from imposing new operational requirements on matters outside the scope of the standard design.

In this regard, there is a clear demarcation in the DCD between matters that are within the scope of the DCD and those matters that are outside the scope of the DCD. In preparing the Standard Safety Analysis Reports (SSARs) and the corresponding Tier 2 provisions, the design certification applicants followed the guidance for final safety analysis reports (FSARs) contained in Regulatory Guide

1. 70 and the Standard Review Plan (NUREG-0800). As a result, every issue that is required to be addressed in an FSAR either is addressed in the SSARs and Tier 2, or there is a statement in the appropriate location in the SSARs and Tier 2 that the matter is to be addressed by combined license (COL) applicants (such matters are called "COL Information Items"). A comprehensive listing of the COL Information Items is provided in Chapter 1 of the SSARs and Tier 2. Because these COL Information Items are the responsibility of the COL applicants, the NRC and COL applicant will determine appropriate requirements related to those items, consistent with NRC regulations, during the COL proceeding.

2. Contrary to Section 52.63. proposed Section 4(c) would enable backfitting of operational-related requirements of the DCD The DCD contains numerous requirements governing a wide range of design-related matters that pertain to operation. For example, Tier 2 of the DCD has the following provisions:

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• Section 14.2 contains requirements governing start-up and power ascension testing

• The system descriptions for numerous systems contain requirements governing inservice inspection and testing

• Section 19Q.10 (ABWR) and Section 19.8 (System 80+) contain requirements governing shutdown conditions Each of these provisions was reviewed and approved by the NRC, and each of these provisions comes within the finality provisions in Section 6 of the design certification rule.

Per Part 52, these provisions are entitled to finality, including protection against backfits. As stated in the Statements of Consideration for Part 52, design certification is the key procedural device for achieving one of the primary goals of Part 52 - - namely, the early resolution of safety issues. To help accomplish this goal, 10 CFR 52.63(a)(l) and 52.63(a)(3) prohibit the NRC from imposing new requirements on a design certification or a plant referencing a design certification, except as necessary to bring the certification or the referencing plants into "compliance with the Commission's regulations applicable and in effect at the time the certification was issued, or to assure adequate protection of the public health and safety or the common defense and security." The provisions in Section 52.63(a) are implemented in Section 8 of the proposed rules, which prohibits the NRC from making generic or plant-specific changes in Tier 1 or Tier 2 of the DCD except in accordance with the requirements in Section 52.63(a). To allow the NRC to impose backfits on the DCD, for reasons other than adequate protection or compliance with NRC regulations, is wholly contrary to the finality provisions in Section 52.63.

3. Contrary to Section 52.63, proposed Section 4(c) would lessen restrictions on backfitting of design requirements of the DCD Equally, if not more troubling than the potential for unfettered backfits on operational-related requirements of the DCD, would be the use of proposed Section 4(c) to enable backfits, based on operational experience, of Tier 1 or Tier 2 design requirements. Because of the inherent connection between design provisions and plant operation, new operational issues or lessons learned from operating experience could be construed by the NRC staff as basis for Section 4(c) backfitting of most, if not all, of the design provisions in the DCD. For example, operational experience might be cited by the staff as the basis for imposing backfits related to component reliability, materials of construction, system configurations, etc., that are different from those specified in the DCD.

The possibility that an unrestricted backfit of the standard design certification - -

once cast as a lesson learned from operational experience - - could be imposed by the NRC is profoundly destabilizing and contrary to both the letter and spirit of Part 52. It would have the unmistakable effect of depriving the standard designs of finality and stability.

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This situation is all the more troubling because Section 4(c) contains no restrictions on backfits. In particular, in order to impose backfits under Section 4(c), the NRC need not demonstrate that the backfit is necessary for adequate protection or compliance with NRC regulations, nor is it even necessary for the NRC to demonstrate that the safety benefits of the backfit outweigh the costs. Instead, Section 4(c) would allow the NRC to impose backfits without making any showing whatsoever, other than connecting the backfit to an operational issue or operating experience. Thus, Section 4(c) provides less protection against back:fits than is currently provided to Part 50 plants. Obviously, this situation would seriously threaten the viability of the design certification rules to potential future users.

At the July 15, 1996, public meeting, the staff stated that it was not the intent of Section 4(c) to provide for backfits on the design (Tr. pp. 38-39), but rather to reserve the ability to issue requirements for as yet unresolved operational issues. The industry appreciates this important clarification. However, as discussed above, the DCD contains numerous requirements governing a wide range of issues pertaining to plant operation. To the extent that these matters were reviewed, approved and incorporated into the DCD, they should be accorded backfit protection under Section 52.63.

4. Proposed Section 4(c) is contrary to clear Commission policy guidance Proposed Section 4(c) is contrary to clear Commission policy guidance provided in the February 15, 1991, SRM on SECY-90-377, The Commission agrees with the staff that the process provides issue finality on all information provided in the application that is reviewed and approved in the design certification rulemaking.

As described in Sections 1 and 2, above, the finality and backfit protection provisions for the design certification were established by the Commission in Section 52.63. All of the information contained in the DCD has been reviewed and approved by the NRC staff and is resolved within the meaning of Section 52.63(a)(4) via the design certification rulemakings. The design certification rules should in no way diminish Section 52.63 protections for information contained in the DCD.

5. Summary In sum, Section 4(c) contradicts the provisions of Section 52.63 of the Commission's regulations. Further, it creates a means for uncontrolled and destabilizing backfits.

Therefore, to comply with the Commission's own regulations and to promote the stability and predictability of the design certifications (which is a primary goal of Part 52), this provision should be clarified. To the extent that the Commission imposes new requirements affecting information in the design certification, whether design or operational in nature, the backfit restrictions in Section 52.63 and Section 8 of the rule should apply. Suggested language for this clarification is provided in Table 3.

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C. The design certification rules should not be used to impose additional "operational requirements" Several of the additional "applicable regulations" in the April 1995 proposed design certification rules pertained to licensees' operational programs and did not address the specifics of the standard design. As a result, we requested in our comments on the proposed rules that these operational program requirements be deleted from the final rules. In meetings with the Commission on March 8, 1996, and with the industry on March 25, 1996, the NRC staff agreed that these operational-related "applicable regulations" should be deleted. However, in the draft final rules, the operational-related "applicable regulations" were not deleted. Instead, they were transferred to Section 4 of the rules and redesignated as "operational requirements."

As discussed in our comments on the proposed design certification rules, the

• industry strongly opposes the NRC staff's approach regarding additional "applicable regulations," including those redesignated as "operational requirements" in Section 4 of the draft final rules. We continue to oppose these operational requirements for the same reasons we oppose the additional "applicable regulations," as discussed in Section IV of this attachment. These reasons are summarized below.

First, there is no requirement in Part 52 which compels the Commission to adopt these additional operational requirements. To the contrary, 10 CFR 52.48 defines the applicable standards for design certification as the technically relevant standards in Parts 20, 50, 73, and 100, and Section 52.81 has similar provisions with respect to COL applications. Section 52.48 and Section 52.81 do not provide any authorization for the NRC to identify additional operational requirements and such identification is contrary to these sections.

- Second, these operational requirements add a destabilizing layer of regulation above the operational requirements imposed by Part 50 on operating reactor licensees. Furthermore, these additional operational requirements are not necessary for the adequate protection of public health and safety or the common defense and security. Thus, there is no basis for imposing these requirements on plants that reference the design certifications.

Third, in our comments on the proposed rules, we expressed the concern that the broadly worded additional "applicable regulations" could be used by the staff to impose backfits on applicants and licensees that could not otherwise be justified on the basis of adequate protection of public health and safety. In response to this particular concern, the draft final rules include backfit protections for the "applicable regulations." However, by redesignating the operational "applicable regulations" as additional operational requirements (i.e., by moving them from Section 5 of the proposed rules to Section 4 of the draft final rules), the backfit protections for the additional "applicable regulations" included in the draft final rules would not apply to these operational requirements. Therefore, there is no protection against destabilizing compliance backfits with respect to these additional operational requirements.

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The potential for backfits is all the more troublesome given that the NRC staff continues to use "broadly stated" language that is vague and subject to misinterpretation in drafting these operational requirements. Inclusion of such vaguely worded provisions makes them especially susceptible to future backfits by the NRC staff. For example,

• The phrase "non-intrusive techniques available twelve months prior to the date ... "from Section 4(b)(l) fails to recognize that licensees are required to use techniques contained in an edition of the ASME Code that the NRC has endorsed. Furthermore, the proposed requirement is vague in the sense that inspection technologies are developed over a period of time as they transition through conceptual design, prototype development, commercial availability, qualification, and industry application. Thus, the precise time of availability is subject to varying interpretations.

• The Section 4(b)(2) requirement is vague and open-ended. The "features" included in the outage planning and control program and the method of "consideration" of fire, flood and other hazards during shutdown and low power operation are not defined and are subject to multiple interpretations.

Where needed to support the NRC staff's safety review of the designs, the DCDs contain specific requirements related to operational matters. With respect to pump and valve inservice inspection and testing programs, for example, licensees will implement the requirements of the ASME Boiler and Pressure Vessel Code, as endorsed by the NRC in 10 CFR 50.55a, as well as commitments such as "the use of advanced non-intrusive techniques to periodically assess degradation and performance characteristics of check valves." (Section 3.9.6.2.3.3 of the System 80+

DCD.) With respect to outage planning and control, licensees will implement various commitments such as technical specifications that address shutdown risk.

and COL action items that require applicants to "develop appropriate administrative controls, procedures and operator training for shutdown operations."

(COL Item 19.9 for the System 80+ and 19.11 for the ABWR.) Finally, the requirement for a design reliability assurance program exists already as a Tier 1 (ITAAC) commitment, and reliability assurance will be the subject of future rulemaking as directed by the Commission in the July 1994 Staff Requirements Memorandum on SECY-94-182, "Probabilistic Risk Assessment Beyond Design Certification."

However, unlike the specific operations-related requirements contained in the DCDs, the proposed additional requirements address operational programs.

Because plant operation is the responsibility of the COL applicant or licensee, not the design certification applicant, it is inappropriate to include provisions governing operational programs in the design certification rules. In this regard, the promulgation of these operational requirements is inconsistent with Section 4(c) of the design certification rules, which states that "facility operation is not within the scope of this appendix."

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As previously noted, the NRC staff stated in the public meeting on March 25, 1996, that they were prepared to delete operational-related ;'applicable regulations" from the design certification rules on the basis that these topics were beyond the scope of design certification and were therefore subject to later rulemaking. The staffs reasoning and proposal provide further indication that it is not necessary to include in the final design certification rules the operational program requirements in Sections 4(a) and 4(b), which correspond to the "applicable regulations" previously marked for deletion.

In sum, the industry strongly opposes the concept of additional operational requirements because they are beyond the scope of the design certifications and are equally, if not more, problematic than the proposed "applicable regulations" in terms of their destabilizing effect on the Part 52 process .

• D. Section 4(d) should be revised to reflect the Part 52 provisions allowing reference to the design certifications in Part 50 proceedings At the May 2, 1996, public meeting, the NRC staff suggested that they were re-evaluating, and would reserve a decision, as to "whether" a design certification could be referenced in a Part 50 application for a construction permit or an operating license.

(Tr. at 72-81.) This staff position is reflected in Section 4(d) of the draft final rules which states the "Commission reserves the right to determine whether and in what manner this [design certification] appendix inay be referenced by an applicant for a construction permit or operating license under Part 50." We are concerned because, as pointed out during the May 2 meeting, Part 52 does not raise any question whatsoever about "whether" a design certification may be referenced under Part 50. In fact, Part 52 explicitly provides, in Sections 52.55 and 52.63, that a certification may be referenced by construction permit and operating license applicants under Part 50.

Hence, the draft final rules are inconsistent with Part 52 and suggest a course that would unduly limit the usefulness of the design certification rules.

In its comments on the NOPRs for the design certification rules, the industry expressed its strong desire to retain the Part 50 licensing option as a fallback alternative in the event Part 52 proved difficult or impossible to implement. Moreover, industry stated its belief that the finality of the design could and should be preserved in a Part 50 licensing proceeding, and that adherence to ITAAC need not and should not be required under Part 50. (See NEI comments on the NOPRs at Section X.) With the draft final design certification rules, the staff appears to have gone backwards.

Specifically, Section 4(d) of the draft final rules states, "The Commission reserves the right to determine whether and in what manner this [design certification] appendix may be referenced by an applicant for a construction permit or operating license under Part 50."

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In the public meeting on May 2, 1996, the staff indicated a clear preference for prohibiting altogether an applicant's ability to utilize the design certification in a Part 50 proceeding. The industry sees no justification for this regressive approach, which would needlessly limit the usefulness of the design certifications. Furthermore, as stated above, such a prohibition would be inconsistent with the express language of Sections 52.55 and 52.63.

The industry requests that the Commission adopt the position that appeared to have been taken by NRC staff at the December 1995 public meeting, i.e., that determination of the treatment of Part 50 issues should be deferred to a later time, and that nothing should be done now in the design certification rules to preclude or expand upon Part 52's current provisions allowing Part 50 applicants and licensees to reference a design certification. At the public meeting on July 15, 1996, NRC senior management appeared to reaffirm this course. Accordingly, Section 4(d) should be revised as recommended in the appended rule language, or alternatively, such revised language should be set forth in the Statements of Consideration for the final design certification rules.

E. Conclusion Section 4 of the draft final rules should be substantially revised. Table 3 provides suggested language for Section 4 of the final design certification rules that addresses the following issues as discussed in this section:

• Section 4(c) contradicts Section 52.63 and is incompatible with Commission policy and the goals of Part 52 because it would allow the NRC to impose backfits on the DCD without demonstrating that the backfit is needed for adequate protection of safety or compliance with NRC regulations. As a result, Section 4(c) would subvert Section 52.63 and undermine achievement of the Part 52 objectives of issue finality and licensing stability. Thus the proposed Section 4(c) threatens the viability of the design certification rules and the Part 52 process, and it should be modified to allow only the imposition of new requirements that are outside the scope of the DCD, unless the backfit restrictions of Section 52.63 and Section 8 of the rules are met.

• The former "applicable regulations" pertaining to operational programs that have been relocated and recast as "additional operational requirements" are inappropriate to include in final design certification rules -- in any form.

Therefore, Section 4(b) and corresponding Sections 4(a)(2)(vii), (viii), (ix), and 4(a)(4) should be deleted.

• Section 4(d) should be modified to indicate that the Commission reserves the right to determine "in what manner" this Appendix may be referenced by a Part 50 applicant.

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Table 3 SUGGESTED LANGUAGE FOR SECTION 4 OF THE DESIGN CERTIFICATION RULES

4. Applications and licenses referencing this design certification: additional requirements and restrictions.

(a) An applicant for a combined license that wishes to reference this Appendix shall, in addition to complying with the requirements of 10 CFR 52.77, 52.78, and 52.79, comply with the following requirements:

(1) Incorporate by reference, as part of its application, this appendix; (2) Include, as part of its application:

(i) A plant-specific DCD containing the same information and utilizing the same organization and numbering as the generic DCD for the [U.S. ABWR or System 80+] design, as modified and supplemented by the applicant's exemptions and departures; (ii) The reports on departures from and updates to the plant-specific DCD required by Section l0(b) of this Appendix; (iii) Technical specifications for the plant that are required by§ 50.36 and§ 50.36a; (iv) Information demonstrating compliance with the site parameters and interface requirements; (v) Information that addresses the COL Information Items, including justifications for any deviations from or omissions of the COL Information Items; and (vi) The information required by 10 CFR 52.47(a) that is not within the scope of this rule.

(3) Physically include, in the plant-specific DCD, the proprietary information and safeguards information referenced in the U.S. ABWR DCD; and (b) (not used.)

(c) Facility operation is not within the scope of this appendix, and the Commission reserves the right to impose requirements for facility operation on holders of licenses referencing this appendix by rule, regulation, order, or license condition; provided, however, that to the extent the Commission imposes new requirements affecting information in the design certification, it must satisfy the requirements of 10 CFR Section 52.63 and Section 8 of the rule.

(d) The Commission reserves the right to determine in what manner this appendix may be referenced by an applicant for a construction permit or operating license under 10 CFR Part 50.

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IV. "Applicable Regulations" A. Introduction In SECY-90-016 and SECY-93-087, the NRC identified a number of positions on severe accidents and other technical issues that are not embodied in current NRC regulations in Part 50, and the staff applied these positions, as approved and modified by the Commission, during its review of the design certification applications. Notwithstanding that Part 50 does not require these features, the design certification applicants voluntarily agreed to include the features in their designs, and then demonstrated that their standard designs conformed with these positions. Despite this clear demonstration of conformance with these positions and the Commission's policies, the NRC staff has proposed to elevate these technical positions to the status of "applicable regulations" for the purpose of 10 CFR 52.48, 52.54, 52.59, and 52.63 and included them in the proposed rules .

In issuing the proposed rules, the Commission specifically requested comments on whether the additional "applicable regulations" should be adopted, in whole or in part, in the design certification rulemakings. The industry responded by stating its continuing strong opposition to including additional "applicable regulations" in the proposed rules. As discussed below, the staff's latest proposal does not resolve the industry's concerns, and we continue to strongly oppose the staff proposal to include these additional "applicable regulations" in the design certification rules.

B. The proposed new "applicable regulations" would constitute NRC regulation to the state-of-the-art of technology The NRC staff proposal goes beyond a question of technical preference in implementing the design certification rules. By elevating technical positions to the status of "applicable regulations," the NRC would essentially be regulating to the state-of-the-art in technology, a wholly new regulatory threshold. The advanced-design nuclear power plants are 10 to 100 times safer than today's safe nuclear plants. The NRC staff proposal would apply fluid new regulatory requirements to advanced-design plants that already far exceed the requirements of existing regulations and the Commission's safety goals. The establishment of another layer of NRC regulations - - the proposed additional "applicable regulations" - - can be and is being viewed as penalizing advanced plants for incorporating design features that enhance safety.

The NRC staff proposal to codify new "applicable regulations" would constitute an unsettling new regulatory paradigm which could impact other forms of NRC regulation, including the regulatory threshold for currently operating plants and might subject the NRC and current licensees to criticism that existing plants do not meet NRC regulations. The design certification rules should not be the occasion for fundamentally altering the direction and emphasis of NRC regulation through the codification of the proposed new "applicable regulations."

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C. "Applicable regulations" would be adverse to licensing stability and thus the viability of the Part 52 process

1. "Applicable regulations" would undermine explicit change process provisions established by the Commission in Section 52.63 The staffs proposal on "applicable regulations" is contrary to a principal purpose of Part 52 - - creation of a predictable, stable licensing process. In particular, the proposal creates the potential for back.fits to be imposed on portions of the standard designs governed by the new "applicable regulations" to meet a subjective, new regulatory threshold - - "improved" protection of public health and safety. In so doing, the proposal would substantively modify explicit Part 52 change process provisions of Section 52.63 that were established and twice reaffirmed by the Commission. Section 52.63 precludes back.fits unless required to assure adequate protection of the public health and safety or compliance with NRC regulations. The proposed "applicable regulations" would fundamentally and adversely alter Part 52

- - and the viability of the Part 52 process itself - - after hundreds of millions of dollars have been invested by the industry and the Department of Energy.

2. It is unnecessary and inappropriate to include new "applicable regulations" in design certification rules We have previously emphasized the following points in our August 4, 1995, and March 5 and May 31, 1996, submittals to the Commission and during the Commission briefing of March 8, 1996.

• Part 52 does not require that additional "applicable regulations" be codified as part of the design certification rules. Indeed Section 52.48 defines the applicable standards for design certification as the technically relevant standards in Parts 20, 50, 73 and 100. As examined thoroughly by EPRI in their May 1, 1996, letter to the Commission and Section F below, we believe that it has not been the Commission intent to codify agency technical positions as new "applicable regulations" in the design certification rules.

• "Applicable regulations" are not required to assure adequate protection of the public health and safety; they do not improve the safety of the standard designs; and they are not necessary to meet the Commission's objective that future plants achieve a higher level of safety. Indeed, there is agreement that the requirements of the ABWR and System 80+ DCDs satisfy all of the technical positions that the staff has proposed be codified as "applicable regulations" and that these designs are 10-100 times safer than today's safe nuclear plants.

The proposed "applicable regulations" may be and are being viewed as a penalty on future owner/operators who will consider utilizing the Part 52 process to build advanced-design plants.

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• "Applicable regulations" are not needed to control changes by an applicant or a licensee. The NRC's technical positions are implemented principally through Tier 1 requirements, which are subject to the most stringent change controls under Part 52. Each is also addressed by more detailed Tier 2 requirements, which are also subject to stringent change controls that preclude potential for adverse effect on the safety of the design.

• Codifying "applicable regulations" is not necessary to provide a basis for evaluating future changes. As expressed by Commission Rogers at the March 8 Commission briefing, the development of, and bases for, the NRC's technical positions that are proposed as "applicable regulations" have been the subject of numerous SECYs, SRMs and public meetings of the NRC staff, ACRS and Commission. The ultimate implementation of the technical positions is described in the ABWR and System 80+ FSERs and DCDs. This extensive information provides a detailed public record of the NRC staff's review and approval of specific design requirements related to satisfying each of the technical positions in question. As noted by Commissioner Rogers, this body of information will provide the basis for the NRC to evaluate the acceptability of proposed design changes, just as this information provided the basis for the staff to determine the original acceptability of the designs in the FSERs. We also agree with Commissioner Rogers' comments to the effect that establishing new regulations corresponding to specific design certification requirements, e.g.,

severe accident features, is unnecessary and inappropriate as a means to control operational practices of licensees.

• The NRC staff proposal would establish the first-ever severe accident regulations, contrary to existing Commission policy and practice on severe accidents and safety goals.

-

• The NRC staff stated iri SECY-96-028 that their concern was with the potential identification of significant new information. For plants licensed under Part 52 as well as Part 50, if significant new information is identified that calls into question the adequate protection of the public health and safety, the NRC has the authority to impose a back.fit or other corrective action, as appropriate.

Beyond that, the Commission structured the Part 52 provisions on certification renewal rulemaking to provide opportunity for the NRC staff to impose additional cost-justified requirements that may result from the identification of significant new information. Except at the time of design certification renewal, Part 52 expressly prohibits imposition of back.fits, except to assure adequate protection of the public health and safety or compliance with NRC regulations.

In sum, the industry strongly believes that the inclusion of these additional "applicable regulations" in the- design certification rules is unnecessary, destabilizing, and contrary to existing law and regulations.

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D. The wording of the additional "applicable regulations" is vague and inconsistent with previous Commission directions We have evaluated the wording of each of the proposed additional "applicable regulations" and concluded that the additional "applicable regulations" are vague and, in some cases, inconsistent with previous Commission directions. Some of the language in the additional "applicable regulations" is so vague that it borders on the incomprehensible. For example:

• Section 5(c)(8) requires design features to ensure that environmental conditions during severe accidents do not exceed containment limits for a time "sufficient to mitigate them in view of their probability of occurrence and the uncertainties in severe accident progression and phenomenology." This provision is so vague that it could mean almost anything. Additionally, it is completely subjective and provides no meaningful criteria for what is acceptable.

• Section 5(c)(13) states that the standard design must include an assessment of "features that mitigate vulnerabilities resulting from other design features."

This provision is so vague that it, too, could mean almost anything. Like Section 5(c)(8), it provides no meaningful criteria for what is acceptable.

• Sections 5(c)(6) and 5(c)(12) contain provisions that are mo.re restrictive than those approved by the Commission in its Staff Requirements Memorandum (SRM) dated June 26, 1990, on SECY-90-016. In particular, Section 5(c)(6) does not include the Commission-approved allowance for "unique design layout" in judging the adequacy of fire protection features, and Section 5(c)(12) only allows for one of the two alternatives approved by the Commission concerning containment performance.

- In short, despite all the attention given to "applicable regulations," there does not appear to be an appreciation on the part of the NRC staff of their possible ramifications. The additional "applicable regulations" continue to be problematic as is evident from their vague and subjective wording and the other, more fundamental concerns identified herein. a clear red flag with respect to the proposal to include them in the design certification rules.

E. The "applicable regulations" for operational issues should be deleted from the rule In our comments on the proposed design certification rules, we noted that some of the additional "applicable regulations" pertained to operational issues and did not address the standard design, and requested that these requirements be deleted from the final rule. However, in the draft final rules, these additional "applicable regulations" were not deleted. Instead, they were transferred to Section 4 of the rule. Although our comments on these operational requirements are provided in more detail in Section III.D, we note here that these requirements should be deleted entirely from the final rule - - i.e., they are not appropriate as "applicable 30

regulations" in Section 5 of the rule, as "operational requirements" in Section 4 of the rule or as provisions in Tier 1 of the DCD. Furthermore, by moving these "applicable regulations" to Section 4, the NRC staff would exempt them from the backfit protections of Section 8(c).

F. The NRC staff proposal is contrary to the purpose of the design certifications and Commission policy guidance In the Commission briefing of March 8, 1996, and again in a letter of July 2, 1996, to NEI President Joe F. Colvin, Chairman Jackson indicated the Commission's sensitivity to the historical record concerning applicable regulations, and the Commission's commitment to "pay particular attention to the positions and guidance previously enunciated by the Commission." For that reason, the industry has done a particularly thorough review of the history of the Commission's treatment of the applicable regulations issue, and we continue to believe the NRC staff's proposal is contrary to previous Commission policy guidance and intent with respect to the design certifications. Much of this history is reflected in the May 1, 1996, EPRI letter to NRC previously mentioned, as well as our August 4, 1995, and March 5 and May 31, 1996, submittals to the NRC. Additional historical information is provided below.

1. What was the Commission's original intent regarding "applicable regulations?"

Section 52.48, Standards for Review of Applications, specifies that design certification applications will be "reviewed for compliance with the standards set out in 10 CFR Part 20, Part 50 and its appendices, and Parts 73 and 100 as they apply to applications for construction permits and operating licenses for nuclear power plants, and as those standards are technically relevant .... " Additionally, Section 52.63 (a)(3) states that the NRC may not impose new requirements unless necessary "to secure compliance with the Commission's regulations applicable and in effect at the time the certification was issued, or to assure adequate protection of the public health and safety ..."

In addition, as noted in SECY-96-028, the Statements of Consideration accompanying Part 52 state that new safety standards may be required to address new design features and directed the staff to advise the Commission of the need for new criteria for judging the safety of designs offered for certification that are different or supplementary to current standards." However, we believe if one looks at the rest of the relevant excerpt from the Statements of Consideration, it is clear that the Commission did not have in mind the codification of new standards (i.e.,

"applicable regulations") within individual design certifications. Specifically, the Statements of Consideration continued:

The Commission shall consider the NRC staffs views and determine whether additional rulemaking is needed or appropriate to 'resolve generic questions that are applicable to multiple designs. The objective of such a rulemaking would be to incorporate any new standards in Part 50 31

or Part 100, as appropriate, rather than develop such standards in the context of the review and approval of individual design certifications. On the other hand, new design features that are unique to a particular design would be addressed in the context of a rulemaking proceeding for that particular design (emphasis added).

The context for this SOC guidance was in response to the NRC staff proposal in SECY-89-036 that the design certification rules be the occasion for setting new standards for the advanced designs. Based on these SOC, the Commission clearly did not intend for the design certifications to serve this purpose. Indeed, the term "applicable regulations" was not in use when Part 52 was issued. Rather, it was coined later by the NRC staff in SECY-92-287. Moreover, the staffs full intent with respect to "applicable regulations" was not apparent until the staff responded to questions from Commissioner Curtiss via SECY-92-287A in March 1993.

Section 5(c) of the draft final design certification rules states, "in addition to the regulations specified in paragraph (a) of this section, the following regulations are applicable for purposes of 10 CFR 52.48, 52.54, 52.59 and 52.63:" Thus it appears that the NRC staff created the term and approach of "applicable regulations" as a legal artifice to elevate selected NRC positions to the status of NRC regulations "applicable and in effect" for the design certification rules. Part of the staffs stated purpose for doing so is to enable future backfits to these new "applicable regulations" to "reinstate the level of safety originally intended." To enable such backfits, the staff is effectively proposing to lessen the backfit protections established by the Commission in Section 52.63, as discussed above in Section IV.C.1.

We do not believe the Commission intended for NRC technical positions to be codified as "applicable regulations" via the design certification rules, nor do we believe the Commission intended that the NRC staff would dictate a lessening of the backfit protections that the Commission deliberately established in Section 52.63 - - and twice reaffirmed in SRMs on SECY-90-377 (February 1991) and SECY-92-287/287A (July 1993).

2. What was intended by the Commission guidance that technical and severe accident issues be resolved via design-specific rulemakings through the design certifications?

As noted in SECY-96-028, the Commission stated in their SRM on SECY-90-016, "where the staff proposed requirements depart from current regulations, consideration should be given to incorporating these requirements into the regulations." In their May 27, 1990, SRM following a staff briefing on SECY-90-016, the Commission requested a paper from the staff detailing the advantages and disadvantages of generic rulemaking to codify these new requirements in parallel with reviewing the specific designs. The staff provided this analysis in SECY-91-262 which concluded that generic rulemaking was not preferred. In their SRM of January 28, 1992, the Commission approved the staff recommendation "to proceed with design-specific rulemakings through individual design certifications to 32

resolve selected technical and severe accident issues for the ABWR and System 80+

designs."

In establishing NRC technical positions via SRMs on SECY-90-016 and SECY-93-087, the Commission was clearly approving guidance for use in staff reviews of design certification applications. SECY-92-287 aptly describes the approach taken based on the Commission's guidance in their SRM on SECY-91-262:

Since agency positions ..... were identified and incorporated into the designs during the staffs design review based on Commission guidance rather than specific regulations, the certification rule will approve the resolutions for the specific designs. These resolutions will be incorporated into the DCD by the applicant for design certification. The agency positions will be explicitly specified in the form of design-specific requirements in the NRC staffs FSER and any supplements thereto.

The explicit documentation of these agency positions will provide a clear regulatory basis for these issues, as well as any additional issues that may be incorporated during the certification rulemaking.

Thus, it is clear that the Commission intended the resolutions of the NRC's positions to be codified in the DCD, not that the positions themselves be codified in the design certification rules.

For all the reasons and complications described in our written and oral comments to the Commission, and in light of the history on this issue and the purpose of design certification, we strongly disagree with the additional step proposed by the NRC staff of codifying these agency positions as "applicable regulations" in design certification rules. We do not believe that the Commission guidance in the noted

• SRMs, or other SRMs, provided approval, either explicitly or implicitly, for this additional step.

G. The NRC staff's latest proposal does not resolve the concerns associated with "applicable regulations" We recognize that the NRC staff has included some wording changes in the draft final rules as well as protections against backfits to "applicable regulations" in an effort to reduce the additional licensing risk associated with the codification of new "applicable regulations." However, the staffs latest proposal does not succeed in resolving the industry's basic concerns, and, in any event, does not alter that "applicable regulations" are unnecessary for purposes of design certification and would represent (1) a source of inherent licensing uncertainty and instability - -

contrary to a central objective of Part 52, and (2) a troubling new regulatory paradigm that is beyond the realm of adequate protection of public health and safety and for which the full implications cannot be foreseen. These effects may be and are being perceived by some in the utility industry, financial markets and the public as putting nuclear power at a competitive disadvantage relative to other forms of new baseload generation.

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H. Conclusion The proposed codification of agency technical positions as "applicable regulations" would create a new paradigm of regulations that goes well beyond what is necessary for adequate protection of the public health and safety. As discussed above and in various prior submittals to and briefings of the Commission, such codification is not necessary and would introduce substantial uncertainty in the Part 52 licensing process. We strongly urge the Commission to reject the proposal to include the proposed new "applicable regulations" in the design certification rules in any form (e.g., Section 5, Section 4, or the DCD). In making its policy determination on this matter, we further ask that the Commission specify that substantive reconsideration of the Final Safety Evaluation Reports 3 , Design Control Documents, or other rule provisions is not required to compensate for the elimination of "applicable regulations" from the rules.

3 It is recognized that a Commission decision to reject the staffs proposal to incorporate additional "applicable regulations" in the design certification rules will require specific editorial deletions to be made in the FSERs.

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V. Application of the Section 50.59-like Change Process to Chapter 19 Information A. Introduction Plants licensed under Part 50 are required to have safety analysis reports (SARs) that include evaluations of design basis accidents (DBAs). However, SARs are not required to evaluate severe accidents and other conditions that are beyond the design basis. Pursuant to 10 CFR 50.59, plants licensed under Part 50 are allowed to make changes in their SARs without prior NRC approval unless such changes involve an unreviewed safety question (USQ). Under Section 50.59, a change constitutes a USQ if it causes an increase in probability or consequences of an accident evaluated in the SAR.

Unlike SARs for Part 50 plants, the DCDs for the ABWR and System 80+ contain evaluations of severe accidents and other conditions that are beyond the design basis.

These evaluations are contained in Chapter 19 of Tier 2 of the DCDs. Section 8(b)(5) in the proposed rules identified a change process with respect to Chapter 19 that is similar to the change process in 10 CFR 50.59, i.e., any increase in the probability or consequences of an accident evaluated in Chapter 19 was defined as a USQ. Section 8(b)(5)(iii) of the proposed rules contained only one narrow exception - it stated that changes involving the deterministic severe accident evaluations in Section 19E (and associated appendices) of Tier 2 for the ABWR and in Section 19.11 (and associated appendices) of Tier 2 for the System 80+ would constitute a USQ only if there is a "substantial increase" in the probability or consequences of the severe accidents evaluated in those sections.

In our August 1995 comments on the proposed rules, we made the following recommendations concerning Section 8(b)(5):

• It is inappropriate to apply the "50.59-like" change process to all of the evaluations in Chapter 19. Rather, the change process with respect to severe accidents should consider only the important features discussed in Section 19.8 for the ABWR and Section 19.15 for the System 80+. (See NEI's NOPR Comments, pp. 67-75.)

• If the Commission rejects the first recommendation, the industry recommended that, at a minimum, the severe accident change process, including appropriate criteria for determining unreviewed safety questions, be applied to all of Chapter 19, not just those evaluations in Section 19E for the ABWR and Section 19.11 for the System 80+. (See NEI's NOPR Comments, pp. 76-78)

The Statement of Considerations for the draft final rules explicitly rejected the industry's primary recommendation to provide an appropriate scope for the consideration of Chapter 19 information in the 50.59-like process. In addition, the Statement of Considerations ignored our comment concerning the appropriate criteria for determining USQs. Rather, the draft final rules apply the Section 8(b)(5)(iii) USQ criteria to Section 19E for the ABWR and 19.11 for the System 80+, and the Section 8(b)(5)(ii)

USQ criteria to the rest of Tier 2, including the remainder of Chapter 19.

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The industry continues to believe that the draft final rules' provisions concerning the scope and criteria for application of the 50.59-like process to Chapter 19 information are inappropriate. As discussed in our August 1995 comments (Attachment B, pp. 67-75), it is inappropriate to apply the "50.59-like" change process to all of the evaluations in Chapter 19. Rather, we continue to believe the change process with respect to severe accidents should be focused on the important features discussed in Section 19.8 for the ABWR and Section 19.15 for the System 80+. These sections contain the more significant insights, design features, and other results from the probabilistic and deterministic analyses of Chapter 19 concerning beyond design basis accidents and conditions. We recognize that the NRC staff has expressed reservations about restricting the scope of Chapter 19 consideration to a single section of that chapter. If the Commission does not adopt the industry recommendation to provide a focus for the "50.59-like" process on the more important features and evaluations within Chapter 19, the Commission should apply the criteria in Section 8(b)(5)(iii) to all of Chapter 19, as discussed below.

B. If the Commission decides not to restrict application of the 50.59-like process to Section 19.8 for the ABWR or Section 19.15 for the System 80+, then the Commission should apply the criteria of Section 8(b)(5)(iii) to all of Chapter 19.

1. In addition to Section 19E for the ABWR and Section 19.11 for the System 80+,

the other sections in Chapter 19 contain evaluations of severe accidents and other beyond-design basis conditions The staff has previously stated that it desires to apply Section 8(b)(5)(iii) of the rule to only Section 19E for the ABWR and Section 19.11 for the System 80+ because, according to the staff, these are the only sections in Chapter 19 that contain evaluations of severe accidents. However, the staffs characterization of Chapter 19 is in error. The whole of Chapter 19 evaluates severe accidents and other conditions that are beyond the design basis. For example, with respect to Chapter 19 of Tier 2 for the ABWR:

• Section 19F discusses the containment's ultimate strength, i.e., its ability to withstand events beyond the design basis.

• Sections 19H and 191 provide seismic capacity analyses and seismic margins analyses, i.e., the ability of components to withstand seismic events that are more severe than the safe shutdown earthquake.

• Sections 19L and 19Q contain shutdown risk evaluations and assessments.

• Section 19M contains probabilistic risk assessments for fire protection

• Section 19R contains probabilistic risk assessments for flooding.

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None of these sections contains evaluations of DBAs, and none of the evaluations in these sections are similar to those contained in SARs for Part 50 plants and subject to Section 50.59. In fact, SARs for Part 50 plants do not even contain a Chapter 19.

Given that Chapter 19 does not contain evaluations of DBAs, it should not be subject to the same change process that is applicable to DBAs. Instead, the severe accident change process proposed by Section 8(b)(5)(iii) of the draft final rules should be applied for all Chapter 19-related changes considered under the "50.59-like" process.

The staff stated in the public meeting on December 4, 1995, that it is not necessary to apply Section 8(b)(5)(iii) to all of Chapter 19, because numerical probabilities have been removed from this chapter. However, the absence of such probabilities does not, in and of itself, resolve the industry's concerns. In particular, a licensee is not relieved of the obligation of performing a safety evaluation of a change involving a Chapter 19 accident evaluation merely because the evaluation does not identify a probability for the accident. For example, the evaluations of DBAs in Chapters 6 and 15 for Part 50 plants do not contain numerical probabilities, yet Part 50 licensees are routinely required to determine whether a change involving such accidents would result in an increase in the probability of the accident.

Similarly, even though numerical probabilities have been removed from the beyond-design basis evaluations in Chapter 19, applicants and licensees would still be required under the staff's proposal to evaluate whether there has been any increase in the probability of these accidents.

The staff stated in the public meeting on May 2, 1996, that Section 8(b)(5)(iii) should not apply to all of Chapter 19 because only the severe accident evaluations in Section 19E for the ABWR and Section 19.11 for the System 80+ are subject to substantial uncertainties. (Tr. 23-23, 27.) It should be noted that, in general, all Chapter 19 evaluations, not just those in the Sections cited by the staff, are subject to substantial uncertainties reflecting the best estimate" analytical methodologies applied to beyond-design basis evaluations.

However, the primary reason it is appropriate to apply different change process criteria for severe accidents is not the uncertainties associated with severe accidents. Rather, it is due to the fact that small increases in the probability or consequences of severe accidents or other beyond-design basis conditions evaluated in Chapter 19 would not impact the NRC's findings regarding the safety of the standard design. It is primarily for this reason that all "50.59-like" safety evaluations concerning Chapter 19 information should be subject to the "substantial increase" standard.

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2. The stafrs proposal would impose undue burdens on both the industry and the NRC with no corresponding safety benefit If a change involves a USQ, the applicant or licensee must seek prior NRC approval for the change, and the change must be the subject of an opportunity for public hearing. These requirements impose substantial burdens on both the NRC and the industry. Such burdens should be imposed only for changes that truly affect safety.

However, under proposed Section 8(b)(5)(ii), prior NRC approval and opportunity for hearings would be required for changes in Chapter 19 that have no effect on safety. This is because Chapter 19 evaluates accidents that have an extremely low probability of occurrence, and using the criteria of Section 8(b)(5)(ii) as proposed by the staff, any increase in these small probabilities would constitute a USQ and therefore would require prior NRC approval and an opportunity for hearing.

For example, Section 19R.5.3 of Tier 2 of the DCD for the ABWR contains a probabilistic risk assessment of a flood originating in the Turbine Building and its impact on core damage frequency. As this evaluation indicates, if the truck entrance door for the Turbine Building does not leak and relieve the flood waters, and if a number of other highly improbable events beyond the design basis were to occur, there is a risk of core damage. However, as discussed in Section 19R.5.3 of the Standard Safety Analysis Report (SSAR) for the ABWR, the probability of core damage from a flood in the Turbine Building is minuscule, i.e., on the order of 10*9 per year. If a licensee were to change its Turbine Building truck door and purchase a stronger door that allowed less or zero leakage, this core damage frequency would increase by about 10%. Such an increase would be trivial and would not affect any conclusions in either the DCD or the FSER. Nevertheless, under the stafrs proposal, this increase would constitute a USQ and require prior NRC approval and an opportunity for public hearing. This example demonstrates that the stafrs position is burdensome and has no compensating benefits to safety.

Chapter 19 contains numerous other examples of evaluations of extremely low probability events. There is no benefit to safety, and great burdens on the industry and NRC, in defining small increases in the probability or consequences of these events as unreviewed safety questions. To prevent such a result, the Com.mission should modify Section 8(b)(5) of the rules so that the USQ criteria of Section 8(b)(5)(iii) apply to all of Chapter 19.

C. The draft final rules are inconsistent with the resolution of this issue proposed by NRC senior management On several occasions, the industry has expressed these same concerns to senior NRC management. In November 1994, NRC senior management proposed rule language that addressed the industry concern about the need for special change process criteria for "50.59-like" safety evaluations concerning Chapter 19 information. However, neither last year's proposed rules, nor the current draft final rules, has reflected the common understandings that were reached in this regard between the industry and NRC senior management.

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For example, in a meeting with the Director of the Office of Nuclear Reactor Regulation (NRR), Bill Russell, on November 2, 1994, General Electric representatives stated that the evaluations in Chapter 19 of Tier 2 should not be subject to the change process applicable to DBAs, because it would result in minor increases in the probabilities of beyond-design basis accidents evaluated in Chapter 19 being classified as USQs. Mr. Russell agreed, and directed that a change involving Chapter 19 be classified as an USQ only if there is a "substantial increase" in probability or consequences of the accidents evaluated in Chapter 19.

As a result of this direction, the following provision was included in Section 3.8 of the DCD Introduction for the ABWR (Emphasis added):

Various deterministic and probabilistic evaluations of severe accidents for the ABWR standard design are included in Chapter 19 of Tier 2. With respect to these evaluations only, a proposed change, test, or experiment shall be deemed to involve an unreviewed safety question if, as a result of the change:

(a) there is a substantial increase in the probability of a severe accident evaluated in Chapter 19 such that a particular severe accident previously reviewed and determined to be not credible could become credible, or (b) there is a substantial increase in the consequences to the public of a severe accident previously evaluated in Chapter 19.

When the proposed design certification rules did not incorporate this approved language, the industry again raised concerns in its written comments and at the NRC public meeting on December 4, 1995. At the meeting, Mr. Russell again concurred with the language that had been prepared for the DCD Introductions (Tr. pp. 111-112), and restated the intent to distinguish between application of the change process to classic DBAs versus applying it to information related to severe accidents in Chapter 19.

Despite the apparent common understanding dating from 1994 concerning the need for special change process criteria for Chapter 19 evaluations, most of Chapter 19 would not be governed by the "substantial increase" standard under proposed Section 8(b)(5) of the draft final rules.

D. NRC senior management proposal at the July 15, 1996, public meeting During the July 15, 1996, public meeting, the industry once again expressed concerns regarding the application of the Section 8(b)(5)(ii) USQ criteria to the severe accident and beyond design basis information throughout Chapter 19. As before, the industry and Mr. Russell agreed in principle that the intent of the change process is to evaluate a change in terms of its effect on design basis information against the "any increase" 39

USQ criteria in Section 8(b)(5)(ii) while evaluating its affect on severe accident or beyond design basis accident information against the "substantial increase" USQ criteria in Section 8(b)(5)(iii). (Tr. pp. 83, 86-88).

In this respect, the point of contention has always been the staffs characterization of the information in Chapter 19. Specifically, some staff reviewers have previously asserted that Section 19E for the ABWR and Section 19.11 for the System 80+ are the only sections in Chapter 19 that contain evaluations of severe accidents and beyond design basis accidents. To the contrary, we agree with Mr. Russell that these sections do not contain a complete list of the severe accident and beyond design basis accident analyses contained in Chapter 19. (Tr. p. 85). Rather, in general, all Chapter 19 evaluations contain severe accident analyses and beyond design basis accident analyses. Thus, application of the Section 8(b)(5)(ii) criteria to these other Chapter 19 analyses is inconsistent with the intent of the NRC and the industry in creating a special standard for evaluating changes in severe accidents and other beyond design basis conditions.

Based on the above considerations, the industry in its comments has requested the Commission not to apply the Section 8(b)(5)(ii) USQ ( any increase) criteria to Chapter 19. Rather, consistent with the intent of the change process, the industry has urged the Commission to apply the Section 8(b)(5)(iii) USQ (substantial increase) criteria to all of Chapter 19.

During the public meeting, Mr. Russell and Mr. Malsch appeared to accept the industry position (Tr. pp. 83-85) but expressed that there might be design basis information in Chapter 19, and that it would be inappropriate to apply the Section 8(b)(5)(iii) heightened standard "to something that's within the design basis that just happens to be discussed in Chapter 19." As discussed below, because of the way the DCD is structured, the industry's proposal to apply the Section 8(b)(5)(iii) criteria to all of Chapter 19 would not cause such a result.

First, a proposed change would be evaluated against both design basis and beyond design basis accident analyses. Chapter 19 was specifically developed as a repository for severe accident and beyond design basis accident evaluations. Thus while Chapter 19 may include information that is also included in other chapters of the DCD, this "design basis" information was included in Chapter 19 as background to support the severe accident and beyond design basis accident analyses, not to document the design basis of plant structures systems and components. Thus the actual "design basis" information for these structures, systems and components is contained in other chapters of the DCD. For example, Chapter 19 contains analyses of beyond design basis floods and fires. However, the "design basis" analyses for floods and fires are contained in Chapters 3 and 9. Therefore, under the industry's proposal to apply the Section 8(b)(5)(iii) (substantial increase) USQ standard to all of Chapter 19, the effect of a proposed change on the design basis analyses, such as the fire or flooding accident analyses in Chapters 3 and 9, would still be evaluated using the traditional standard embodied in Section 8(b)(5)(ii). As a separate matter, its effect on severe accident or beyond design basis accident information (Chapter 19) would be evaluated against the "substantial increase" USQ criteria in Section 8(b)(5)(iii).

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E. Conclusion As currently written, Section 8(b)(5)(iii) of the rule would require wasteful evaluation of Chapter 19 information that is of little or no safety significance and would result in USQs being identified based on trivial increases in the probability or consequences of the accidents evaluated in Chapter 19. This result is inappropriate, would impose undue burdens on the NRC and licensees, and is contrary to previous agreements reached with senior NRC management.

Accordingly, and consistent with the intent of NRC senior management expressed at the public meeting of July 15, 1996, we recommended the Commission adopt the approach described above. Suggested wording to accomplish this result is provided in Table 4.

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TABLE4 SUGGESTED RULE LANGUAGE ON CHAPTER 19 CONSIDERATION IN THE 50.59-LIKE CHANGE PROCESS Section 8(b)(5)(ii) A proposed departure from Tier 2, except as to its effect on the resolution of a severe accident or beyond design basis accident issue identified in Chapter 19 of the plant-specific DCD, shall be deemed to involve an unreviewed safety question if:

(A) The probability of occurrence or the consequences of an accident or malfunction of equipment important to safety previously evaluated in the plant-specific DCD may be increased; (B) A possibility for an accident or malfunction of a different type than any evaluated previously in the plant-specific DCD may be created; or (C) The margin of safety as defined in the basis for any technical specification is reduced.

Section 8(b)(5)(iii) A proposed departure from Tier 2 affecting resolution of a severe accident or beyond design basis accident issue identified in Chapter 19 of the plant-specific DCD involves an unreviewed safety question if:

(A) There is a substantial increase in the probability of a severe accident or beyond design basis accident such that a particular severe accident or beyond design basis accident previously reviewed and determined to be not credible could become credible; or (B) There is a substantial increase in the consequences to the public of a particular severe accident or beyond design basis accident previously reviewed.

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VI. The Rules Should Incorporate All Substantive Provisions of the DCD Introduction A. Introduction In responding to the Notice of Proposed Rulemakings on the design certifications for ABWR and System 80+, the industry recommended that each of the substantive provisions contained in the DCD Introductions should be incorporated into the design certification rules, and without modification.

The industry's position was based on the fact that in 1994 both the NRR and OGC staff had approved the text of the DCD Introductions word-for-word, that the contents of the DCD Introductions were essential for implementation of the rules, and that inconsistencies between the Statements of Consideration and the DCD Introductions would lead to confusion and uncertainty, detracting from the goals of Part 52.

In SECY 96-077, the staff agreed with industry that the substantive provisions of the DCD Introductions should be incorporated into the final rules, stating at p. 37 that the staff's draft final rule:

has adopted NEI's ... suggestion of incorporating substantive procedural and administrative requirements [from the DCD Introductions] into the design certification rule; and It is the Commission's view that the substantive procedural and administrative provisions described in the DCD Introduction should be included in, and be an integrated part of, the design certification rule which is published in the Federal Register and codified in the Code of Federal Regulations.'

Sections 2, 4, 6, 8, and 10 [of the proposed final rule] have been revised and Section 9 of this Appendix was created to adopt appropriate provisions from the DCD Introduction.

Nevertheless, NRC staff incorporation of DCD Introduction provisions was not done without modification. The NRC staff stated in the Statements of Consideration for the draft final rules:

In some cases, the wording of these provisions has been modified to conform with the final design certification rule.

In other cases, the staff omitted substantive provisions in their entirety from the rules.

For the reasons discussed below, the industry urges the Commission to incorporate all of the substantive provisions from the DCD Introduction into the final rule, using the language in the DCD Introduction previously approved by the NRC staff in 1994.

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B. The NRC staff's incorporation of substantive provisions was incomplete Although the SOC for the draft final rules state that the substantive provisions of the DCD Introductions should be incorporated into the final rules, there are at least six instances where such incorporation was not accomplished. Specifically:

1. The definition of Tier 1 material excludes a provision from the DCD Introductions statingthat "the design descriptions, interface requirements, and site parameters are derived from Tier 2 information."

2. The definitions of Tier 1 material and Tier 2 material exclude statements from the DCD Introductions that "compliance with the more detailed Tier 2 material provides a sufficient method, but not the only acceptable method, for complying with the more general provisions in Tier l." Also excluded is a statement that "compliance with Tier 2 is a sufficient, but not necessarily the only, method for complying with theITAAC."

3. The definition of Tier 2 material excludes a statement from the DCD Introductions that COL Information Items do not establish requirements, rather, they identify an acceptable set of information, but not the only acceptable set of information, for inclusion in a plant-specific SAR. An applicant may deviate from or omit these COL Information Items; provided, however, that the deviation or omission is identified and justified in the plant-specific SAR. Further, the DCD Introductions specify that, "after issuance of a construction permit or license, the COL Information Items have no further effect to that licensee; instead the corresponding provisions in the plant-specific SAR are applicable."

4. The definition of Tier 2 material excludes a statement from the DCD Introductions that references to the standard safety analysis report "shall not be construed as incorporating these actions, or the information therein, in Tier 2."

5. The definition of Tier 1 material excludes a DCD Introduction provision that design activities outside the scope of the standard design may be performed using site-specific design parameters.

6. The draft final rule language on ITAAC excludes a provision from the DCD Introductions that "after NRC has issued its finding in accordance with 10 CFR 52.103(g), the ITAAC do not, by virtue of their inclusion in the DCD, constitute requirements for the COL holder or for renewals of the COL."

Each of these specific instances was discussed with staff at the May 2, 1996, public meeting on the proposed final rules and is further discussed below.

Omission No. 1. With reference to No. 1 above, the staff took the position that "we felt [the omitted provision] wasn't necessary for the rule. That goes without saying."

(Tr. at p. 83.) The industry asked if there was a reason why the omitted statement 44

could not go into the rule. Mr. Malsch ofOGC responded, It doesn't make any difference to me." (Tr. at 83-84.)

We believe that the omitted statement is important and should be included in the rule language. The statement that design descriptions, interface requirements, and site parameters are derived from Tier 2 information - although perhaps obvious to those who have been deeply immersed in design certification activities for the past several years - may not be obvious to future litigants challenging NRC's or a COL applicant's or holder's interpretation of or compliance with Tier 1 provisions. Having such a statement in the rule affords a COL applicant or license holder the opportunity to base Tier 1 compliance on substantially more detailed corresponding Tier 2 information.

The fact that the omitted statement is "not necessary" does not make it undesirable to the industry and to future NRC staff. Since no legal objection has been raised to inclusion of this desired and agreed-upon text in the rule, industry requests that the Commission include the omitted text in the final rules.

Omission No. 2. Again, the staff explained that the omission was made because the two provisions in question (i.e., that Tier 2 compliance provides a sufficient, but not necessarily the only acceptable, method of compliance with Tier 1 and ITAAC) were "not necessary." (Tr. at 84.) Mr. Malsch of OGC expressed an additional concern that saying Tier 2 was "sufficient but not necessary" could lead to an implication that Tier 1 could be referenced without also referencing Tier 2. (Tr. at 84-85.) Mr. Malsch stated that "we didn't want to render the whole change process inapplicable by that language standing by itself." Id.

In subsequent discussion between Mr. Malsch and the industry, it appeared that the omitted text could be reworded to preserve the concept that, although Tier 2 must be referenced when referencing Tier 1, Tier 2 may be changed using the applicable change process and still produce compliance with corresponding provisions in Tier 1. Specifically, Mr. Malsch stated that OGC would reexamine the wording of the omitted text and consider whether a revised provision could be included in the rule. (Tr. at 86-87.)

We suggest that the-following reworded provision be included in the final rule's definition of Tier 1 material:

Compliance with the more detailed Tier 2 material provides a sufficient, but not the only acceptable, method for complying with the more general provisions in Tier 1 (including the ITAAC). Compliance methods differing from Tier 2 material must satisfy the change process provisions specified in Section 8(b), and such differences shall not negate a COL applicant's or holder's general requirement to reference Tier 2 when referencing Tier 1.

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Omission No. 3. The DCD Introduction's provision that the COL Information Items do not constitute requirements and that, after issuance of a construction permit or COL, the COL Information Items have no further effect, was again explained by staff as being "unnecessary" given the draft final rule's explanation that COL License Items were informational requirements only. (Tr. at 87.) The industry explained that deletion of the DCD Introduction's provision could be construed, notwithstanding explanations in the SOC, as meaning that a COL applicant must submit to NRC all the information identified as COL Information Items despite an agreement with staff more than a year ago that such information was not necessarily required in all cases to be submitted to NRC. (Tr. at 87-91.) Hence, industry reiterated its desire that the omitted text be included in the rules. The staff maintained that its position had not in fact changed, but that, given the explanation in the SOC, the omitted text was unnecessary for inclusion in the final rule. (Tr. at 90-91.) Mr. Mizuno of OGC voiced an additional concern that the DCD Introduction's phrase, "instead, the corresponding provisions in the plant-specific SAR are applicable," does not appear to follow from the preceding phrase concerning COL License Information items. (Tr. at 88-89.)

To address the concerns expressed by the industry, we propose that the provision from the DCD Introduction on COL Information Items be added to the design certification rules. To address Mr. Mizuno's concern, the industry would have no objection if the last sentence of this provision were modified to state as follows:

After issuance of a construction permit or COL, the COL Information Items are not requirements for the COL holder unless such items are restated in the plant-specific SAR.

Omission No. 4. Staff omitted a DCD Introduction provision stating that secondary references to the SSARs should not be construed as incorporating SSAR material into the DCD. At the May 2, 1996, public meeting, staff explained that it believed this provision was confusing in light of the explanation in the SOC that secondary references were requirements if their context so suggested. (Tr. at 91-96.) The industry responded that SSAR references were in fact a special category of secondary references that, in many cases, were intended simply to conform the format and sections of the DCD with the SSAR. (Tr. at 94.) The applicants were requested by staff to go back to their DCDs to review SSAR references to identify more precisely their context. (Tr. at 96.) That review has been completed and, based on such review, it is industry's belief that a rule provision clarifying that SSAR references are not intended to be incorporated by reference -- unless otherwise specifically provided in the rule, i.e.,

references to proprietary and safeguards information, which the context indicates are to be treated as requirements -- would be helpful to future applicants and would avoid unnecessary confusion. Therefore, we strongly urge the Commission to incorporate the omitted text in the rules. In the alternative, references to the SSAR other than to proprietary and safeguards information requirements should be deleted from the DCDs.

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Omission No. 5. The NRC staff omitted from the definition of Tier 1 material a statement that design activities outside the scope of the standard design may be performed using site-specific (as opposed to standard, rule-imposed) parameters. Mr.

Mizuno of OGC explained that the provision was omitted because it was "not necessary." (Tr. at 98.) He also expressed concern that ifNRC does not have a technical basis for review of an activity, then the activity should not be addressed in the design certification. Id.

However, the industry remains concerned that there be no uncertainty that NRC may not, and has no intention to, regulate activities - using the design certification - that are in fact outside the scope of the standard design addressed by the certification. For example, a COL applicant should not be bound by the design certification in designing site-specific aspects of the ultimate heat sink.

Thus, we strongly urge the Commission to place in the rules the DCD Introduction provision identifying that activities outside the scope of the standard design may be performed using site-specific parameters.

Omission No. 6. The NRC staff omitted a key and previously agreed upon provision of the DCD Introduction stating that, after NRC's 10 CFR 52.103(g) finding, the ITMC do not constitute requirements for the COL holder or for renewals of the COL. Sta:frs position at the May 2, 1996, public meeting was that this issue is adequately addressed in Section 9(b)(3) of the proposed final rules. (Tr. at pp.98-100.) Mr. Mizuno ofOGC nevertheless stated that he agreed with industry that indeed "ITMC as a general matter do not constitute requirements on the COL holder." (Tr. at p. 100.)

However, industry pointed out that, in fact, Section 9(b)(3) differs significantly from the corresponding provision in the DCD Introductions. Section 9(b)(3) addresses only "subsequent plant modifications" and does not address other types of instances not related to "subsequent plant modifications" where ITMC could potentially be construed as imposing requirements on a COL holder without a definitive statement to the contrary. (Tr. at 99-103.) In particular, industry cited specific examples of age-related (but appropriate) noncompliance (see Tr. at 102-103.), enforcement issues, and license amendments where, although no "modifications" occurred, a COL holder could under some circumstances be construed as being in noncompliance with an ITMC.

To remove this potential, we strongly urge the Commission to adopt the language jointly agreed among the industry, NRR staff, and OGC staff in formulating the DCD Introductions, which is simply that ITMC do not constitute regulatory requirements for COL holders or for renewals of a COL.

C. July 15 public meeting discussion The subject of incorporation of the DCD Introduction was again raised by industry in the public meeting of July 15, 1996. Due to a lack of time, the individual omissions listed above were not each addressed. However, Mr. Malsch of NRC stated, in referring 47

to industry's comments on the omissions: "Yes, I thought some of your suggestions here were helpful and took care of some of the problems." (Tr. at p. 109.) Mr. Russell of NRC, in responding to the industry's specific comments on the omissions, stated, "if it doesn't conflict with the rule, and it's consistent with the process as we implemented it, then I don't have a problem with putting it in and giving it some specific words and look at those specific words and see whether that accommodates." (Tr. at p. 106.) In light of Mr. Malsch's and Mr. Russell's statements, the Commission should incorporate the omitted substantive DCD provisions into the final rule as requested.

On the particular DCD Introduction topic of the post-COL status ofITAAC, Mr. Russell appeared to agree with the industry's position that ITAAC should have no regulatory status upon receiving authorization to operate at full power. (Tr. pp. 106-109.) The one exception he noted is where a challenger had raised an ITAAC claim prior to fuel load, and such claim was still undergoing determinative proceedings at the time of full power operation. Mr. Russell emphasized that it was necessary to continue the regulatory status of the ITAAC after the Commission makes their Section 52.103(g) finding until completion of any administrative proceeding under 52.103(a). The industry agrees with this exception.

Although Mr. Russell characterized the ITAAC issue as one simply in need of "clarification," (Tr. at p. 108), the industry believes it is vital to incorporate the substantive understanding concerning ITAAC expiration into the body of the final rule.

Therefore, Table 5 presents industry's proposal for incorporating this substantive provision into the rule, together with the exception noted by Mr. Russell.

D. Conclusion The industry and NRC staff appear to agree on the fundamental premise that the substantive provisions of the DCD Introductions which previously were agreed to by the NRC (including OGC) staff should be incorporated in to the body of the final design certification rules. In the few cases where such incorporation was not accomplished or was accomplished with modification, we have stated both a desire and a need for the original DCD Introduction provisions to be incorporated into the final rules. Where the staff raised legitimate concerns about the language of the DCD Introduction provisions that were not incorporated, we have responded to those concerns with proposed modifications of the language of the respective provisions. In the case of the status of ITAAC, after the Commission's Section 52.103(g) finding, the industry and NRC senior management appear to agree on the approach to resolving NRC's specific concerns.

Thus, this appears to be an area where NRR staff, OGC staff, and the industry seem to have reached common ground. We therefore continue to request that the substantive provisions of the DCD Introductions be incorporated into the body of the final design certification rules without modification, except as otherwise stated above (where modifications are appropriate to accommodate NRC staff concerns).

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Table 5 SUGGESTED RULE LANGUAGE FOR SECTION 9(B)(3)

Section 9(b)(3) - After the Commission has made the finding required by 10 CFR 52.103(g), ITAAC no longer constitute regulatory requirements; provided, that as regards to specific ITAAC which are the subject of a Section 103(a) hearing, their expiration shall occur upon final Commission action in such proceeding. However, subsequent modifications must comply with Tier 1 and Tier 2 design descriptions in the plant-specific DCD unless the licensee has complied with the applicable requirements of Section 8 of this appendix.

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VII. All Tier 2* Restrictions Should Expire at First Full Power A. Introduction Information designated Tier 2* in the DCDs may not be changed without prior NRC approval. For ABB-CE's System 80+ certified design, Section 8(b)(6)(ii) of the draft final rule includes the following four matters under Tier 2* for a holder of a combined license:

Equipment seismic qualification methods; Piping design acceptance criteria; Fuel burn-up limit; and Control room human factors performance.

- For GE's ABWR certified design, Section 8(b)(6)(ii) of the draft final rule includes the following six matters under Tier 2* for the holder of a combined license:

Equipment seismic qualification methods; Piping design acceptance criteria; Fuel burn-up limit; Fuel licensing acceptance criteria; Control rod licensing acceptance criteria; and Human factors engineering design and implementation process.

Unlike all other Tier 2* information that reverts to Tier 2 after first full power, NRC staff would extend the Tier 2* change restrictions for these matters throughout the life of the plant. The Tier 2* concept represents an accommodation between the industry and the NRC staff that facilitated completion of design certification safety reviews. Nonetheless, it must be recognized that Tier 2*

represents an unfortunate complication of the design certifications, albeit, perhaps, a necessary one. There is simply no need to extend the Tier 2* designation past first full power. Certainly, the staff has not provided adequate rationale for proposing to do so that justifies perpetuating for licensees the additional complexity in the Section 8 change process due to the presence of Tier 2* information in the DCDs. As described below, unbounded Tier 2* change restrictions are unnecessary and inappropriate, and Section 8(b)(6) should be modified for the final rules such that all Tier 2* restrictions expire at first full power.

Compounding the industry concern for Tier 2* restrictions that do not expire at first full power is the related NRC staff proposal that all Tier 2* changes would require license amendments and would be subject to hearing opportunity - - even if the change does not involve a USQ. As described in Section X.C of this attachment, the Commission should adopt final rule provisions that provide a hearing opportunity only for Tier 2* changes determined to involve a USQ.

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B. The NRC staffs rationale for continuing Tier 2* change restrictions after first full power fails to explain the significance associated with the extension In the industry comments on the notice of proposed rulemaking, it was noted that all Tier 2* change restrictions should expire at first full power and the Tier 2*

information identified in the respective DCD Introductions should revert to the controls associated with Tier 2 information. The comments reasoned that the Tier 2* change restrictions pertained to detailed design methodologies for areas in which detailed design information was not developed for design certification (due to the lack of as-procured and as-built data or rapidly changing technology). However, by the time of first full power, the detailed design will have been fully developed in accordance with the Tier 2* provisions. Hence, the Tier 2* change restrictions will have served their purpose and should expire. This conclusion remains valid notwithstanding statements contained in SECY-96-077.

In SECY-96-077's proposed SOC, NRC staff provided its rationale for continuing the Tier 2* change restrictions after first full power:

The NRC staff determined that some of the Tier 2* information could expire when the plant first achieves full (100%) power, after the finding required by 10 CFR 52.103(g), while other Tier 2*

information must remain in effect throughout the life of the plant that references this rule. The determining factors were the Tier 1 information that would govern these areas after first full power and the NRC staff's judgment on whether prior approval was required before implementation of the change due to the significance of the information.

- SECY-96-077, Att. 1, at 11' (ABWR), and Att. 5, at 11 (System 80+). However, for each of the items identified in the draft final rules as subject to the continued restrictions, the proposed SOC fail to adequately explain the significance of the item that warrants the extension of the Tier 2* restrictions.

1. Equipment seismic qualification methods In the proposed SOC accompanying the draft final rules, the staff resolved the discrepancy between the Tier 2* expiration dates for the System 80+ and ABWR certified designs by imposing the change restrictions on both.

One area of Tier 2* information that had different expiration dates was equipment seismic qualification methods. The NRC has determined that, due to its significance, changes to the qualification methodology must be approved before implementation. Therefore, the Tier 2* designation for this information will not expire for either design.

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SECY-96-077, Att. 1, at 11 (ABWR), and Att. 5, at 11 (System 80+). NRC Staff offered no other explanation for its decision. Staff also provided no discussion of the significance of this issue.

2. Piping design acceptance criteria The proposed SOC accompanying the draft final rules failed to address comments filed by ABB-CE regarding why the Tier 2* change restrictions for piping design acceptance criteria can expire at first full power. ABB-CE pointed out that significant design changes in this area are not expected in light of the efficiencies associated with maintaining and operating a standardized plant. Moreover, past experience reveals that even if such changes are identified, in all likelihood the change would present an unreviewed safety question for which prior NRC review and approval would be required anyway.

ABB-CE provided NRC with an example of how Tier 2* treatment of piping design acceptance criteria after first full power could preclude subsequent minor design changes.

3. Fuel burn-up limit The proposed SOC accompanying the draft final rules summarize recent staff concerns regarding extended fuel burn-up in reactor cores at current generation nuclear plants. While recognizing that joint NRC-industry efforts are underway to better assess the performance of high burn-up fuel, the proposed SOC also note that there are no immediate safety issues and that there is no need for additional industry actions at this time. Where changes are requested to current generation technical specifications, prior NRC review and approval of the change is required anyway.

Unfortunately, the NRC staff appears poised to force an as-yet-undefined solution for its still-evolving concerns in this area on the design of evolutionary plants by maintaining the Tier 2* change restrictions after first full power for the fuel burn-up limit. As illustrated by staffs involvement in this area for current generation plants, there is no need to maintain the restriction in order to participate in future changes involving the fuel design of ABB-CE's System 80+ or GE's ABWR. The staffs involvement in approving changes to the technical specifications is the same for current generation plants as it is envisioned in this draft final rule for both advanced plants. The staff retains the ability to impose adequate protection backfits under Section 52.63 and Section 8 of the rules. Finally, the continuation of Tier 2* change restrictions for the fuel burn-up limit does nothing to identify staffs concern or the solution to the concern, but rather serves only to involve staff in the resolution of the issue -- which clearly is already occurring notwithstanding a Tier 2*-like restriction for current generation licensees. Therefore, staff has failed to articulate a significant reason for requiring the Tier 2* change restrictions to continue after first full power.

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4. Control room human factors engineering and human factors engineering design and implementation The proposed SOC accompanying the draft final rules failed to address comments filed by ABB-CE regarding why the Tier 2* change restrictions for control room human factors engineering can expire at first full power. In its comments on the notice of proposed rulemaking, ABB-CE explained how continuation of the restriction would impair licensing stability without an identifiable safety benefit.

In addition, ABB-CE indicated by example how the restriction could actually impede design changes intended to improve plant safety and performance. With the protections available in Tier 2 and the normal inspection and enforcement process, as well as other motivations for maintaining a standard plant, it was also noted that sufficient controls on changes exist.

C. CONCLUSION In sum, the NRC staff has failed to articulate a significant reason for continuing the Tier 2* change restrictions for equipment seismic qualification methods, piping design acceptance criteria, fuel burn-up limit, fuel licensing acceptance criteria, control rod licensing acceptance criteria, human factors engineering design and implementation process, and control room human factors engineering. In light of the fact that after first full power, control of changes to formerly Tier 2* information will be consistent with normal Tier 2 requirements, there is no need for Tier 2*

restrictions to continue. Furthermore, the NRC staff proposal would unjustifiably perpetuate for licensees the additional complexity in the change process caused by Tier 2* material in the DCDs.

Combined with the related draft final rule provision requiring that all Tier 2*

changes be subject to hearing opportunity even if no USQ is involved (as discussed in Section X.C of this attachment), unbounded Tier 2* restrictions represent an onerous, life-long burden on licensees. Accordingly, Section 8(b)(6) of the draft final rules should be modified as suggested in Table 6 such that all Tier 2*

restrictions expire at first full power.

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Table 6 SUGGESTED RULE LANGUAGE FOR SECTION 8(b)(6) 8(b)(6)(i) An applicant or holder of a combined license may not, before first full power, depart from Tier 2* information, which is designated with italicized text or brackets and an asterisk in the generic DCD, without NRC approval. After the plant first achieves full power, the Tier 2* designations expire and have no further effect as to that licensee. The departure will not be considered a resolved issue, within the meaning of Section 6 of this appendix and 10 CFR 52.63(a)(4).

(ii) A departure from Tier 2* information that does not involve an unreviewed safety question as defined in paragraph (b)(5) of this section does not require an exemption from this appendix.

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VIII. NRC ITAAC Verification A. Introduction In a Commission briefing on March 8, 1996, the NRC staff stated their agreement with the industry view of ITAAC verification, as clarified in NEI's March 5 response to SECY-96-028. Specifically, there is agreement that in making its ITAAC determinations, it is appropriate for the NRC to consider QA/QC deficiencies that are relevant and material to determining that an ITAAC has been successfully completed. Based on this understanding, the staff stated their intent to add recommended language to the proposed design certification rules clarifying the nature of NRC ITAAC verification. We appreciate the staffs recognition of the importance of this issue and incorporation in the draft rules of appropriate ITAAC verification language. However, as discussed below, we believe certain statements in the Statements of Consideration (SOC) detract from the clarity and intent of the additional rule provision as a guide for future licensees and NRC staff, while other SOC discussion is beyond the scope of this issue and the design certification rules.

B. The Statements of Consideration be clarified to ensure they reinforce and focus on the ITAAC verification provision The last paragraph of the SOC Response states, "the Commission concludes that information such as QA/QC deficiencies, which are relevant and material to ITAAC may be considered by the NRC in determining whether the ITAAC have been successfully completed." As stated above, we agree with this conclusion.

Accordingly, we recommend deletion or modification of statements that are inconsistent with or obscure the important common understanding in this area.

For example, we recommend the deletion of the following two sentences and deletion or modification of the third:

1. "The NRC disagrees with any assertion that QA/QC deficiencies have no relevance to [NRC ITAAC determinations]."

2. "To argue that consideration of underlying information that is relevant and material to determining whether ITAAC have been successfully completed ignores the history of ITAAC development."

3. "Despite this conclusion, the Commission has decided to add a provision to Section 9(b) .... " (emphasis added)

In addition, we recommend the last sentence of the SOC Response be deleted and the next-to-last sentence be modified as follows: "This provision, which is fully consistent with 10 CFR 52.99 and 52.103(g), requires the NRC .... " This change is appropriate for two reasons. First, the last sentence is confusing in that the staff does not, as indicated, describe in the SOC the manner in which the NRC intends to 55

implement 10 CFR 52.99 and 52.103(g), including the sign-as-you-go and pre-operational finding processes, associated Federal Register notices, etc. And second, the implementation of these Part 52, Subpart C, provisions is beyond the scope of the DCRs and the respective SOC.

C. Discussion of anticipated quality requirements for licensee ITAAC activities is not germane to NRC ITAAC verification and should be deleted from the SOC The third paragraph of the SOC Response addressed quality requirements for ITAAC activities and contained the following sentence:

Quality assurance deficiencies ... would be assessed for their impact on the performance of the ITAAC, based on their safety significance to the system.

In the May 2, 1996, public meeting on the draft rules, the NRC staff reiterated that QA/QC deficiencies that are relevant and material to determining that an ITAAC has been successfully completed could be considered by the NRC in making ITAAC determinations. The staff clarified (Tr. at p. 65) that the third paragraph of the SOC Response was not intended to suggest a third criterion (in addition to relevance and materiality) related to quality requirements or safety significance.

Indeed, the question of whether a deficiency may be relevant and material to an ITAAC determination, and therefore considered in by the NRC in making ITAAC determinations, does not depend on whether the deficient licensee process/activity was safety-related (i.e., performed under Part 50, Appendix B, requirements).

Therefore, the discussion of anticipated quality requirements for licensee ITAAC activities is not germane to the nature of NRC ITAAC verification. Accordingly, to avoid confusion on the basic point that only matters relevant and material to ITAAC determinations ma*y be considered by the NRC, we recommend the third paragraph of the SOC Response be deleted.

D. SOC discussion of licensee documentation and submittals regarding ITAAC verification is beyond the scope of the certifications and should be deleted We appreciate that the NRC staff recognizes the importance of the additional ITAAC implementation topics discussed under the SOC headings, "Licensee Documentation of ITAAC Verification," "NRC Inspection," and "Facility ITAAC Verification." And we appreciate the staffs openness in sharing their current thinking on these matters at the May 2 public meeting and in SECY-96-077.

However, because these matters are beyond the scope of the certifications, were not raised in the proposed rules or formal comments thereon, and involve issues that have not been fully aired, we recommend discussion of these topics be deleted from the SOC.

56

Rather, we believe it would be more appropriate to ensure that current staff thinking on these ITAAC implementation topics is included in the staffs forthcoming draft paper on COL issues or another appropriate vehicle. We look forward to in-depth discussion with the NRC staff on ITAAC implementation and other COL issues, after design certification issues are resolved, and we believe the proposed additional rule provision on ITAAC verification will meaningfully expand the framework for these follow-on discussions. After appropriate interactions and preparation of one or more papers, we expect these discussions to lead to common understandings and appropriate Commission guidance.

E. Conclusion As recognized at the March 8, 1995, Commission briefing and May 2 public meeting, there is no significant difference between the industry and NRC staff views on the nature of NRC ITAAC verification. As discussed above, we request that the Statements of Consideration be clarified to ensure they focus on and reinforce this important additional provision.

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IX. Post-Design Certification Tier 2 Change Process A. Introduction In our August 1995 comments on the NOPRs, we proposed additional process provisions for the design certification rules to enable plant designers to incorporate qualifying generic Tier 2 changes into the standard designs via the "50.59-like" process during the multi-year period between the time of design certification and the first COL application. The changes that would be allowed under the industry proposal would not be safety-significant or adverse to the NRC staffs safety review of the design because each must first be determined not to involve an unreviewed safety question. However, such a process would be significant to the ability of prospective license applicants to complete the detailed design engineering and firm cost and schedule estimates for the plant. Thus the industry proposal is intended to enhance design and licensing certainty, consistent with objectives that are central to Part 52.

While NRC senior management expressed openness to later consideration of a post-design certification generic Tier 2 change process outside the context of the pending design certification rules, this openness is not reflected in the Statements of Consideration on the draft final rules. As discussed below, the SOC should be modified to reflect NRC openness to discuss a post-design certification change process and related issues after the design certification rules are completed.

B. A post-design certification Tier 2 change process holds significant benefits for the industry, the public, and the NRC In our August 1995 comments and at the December 4, 1995, public meeting on the design certification rules, the industry identified several attributes and advantages of a post-design certification change process for generic Tier 2 changes. In particular, such a process would:

• enhance design/licensing certainty and early issue resolution, consistent with Part 52 objectives, by enabling generic changes to the Tier 2 design to be incorporated prior to a COL application, thus facilitating completion of detailed design engineering and firm cost and schedule estimates;

• enhance regulatory efficiency consistent with NRC and broader government initiatives by addressing generic changes to the Tier 2 design a single time, rather than repetitively with each license application with attendant potential for differing implementation;

• assure that timely and meaningful information is available to the public on intended changes to the approved design; 58

• reduce burden , complexity and uncertainty associated with the first COL application; and

• facilitate orderly, manageable and efficient processing and implementation of Tier 2 changes after design certification.

Also, while not necessary to assure a high degree of standardization among future plants referencing a given design certification, a post-design certification change process clearly furthers the Part 52 goal of standardization and is complementary to the strong industry commitment thereto.

C. The Statements of Consideration for the design certification rules should reflect the openness expressed in public meetings to future consideration of a post-design certification Tier 2 change process At the December 4, 1995, public meeting on the proposed design certification rules, the NRC staff did not dispute the potential advantages of such a post-design certification generic change process and observed that the plant designers were best suited to performing the required safety evaluations for generic Tier 2 changes.

However, NRC senior management noted that the industry proposal raised significant issues. These included the regulatory status of the plant designers and related NRC enforcement capability, public notice and participation concerning proposed changes to the design certification, and the resource burden on the NRC staff to evaluate proposed changes. (Tr. pp. 66-87.)

Citing these concerns, NRC senior management stated that consideration of this issue should be deferred for separate, later discussion outside the context of design certification . While we believe the concerns raised by the NRC staff can be addressed through appropriate additional provisions in the design certification rules, we recognize that the process proposed in our August 1995 comments may not be the only viable approach and that the design certification rules may not be the only vehicles for achieving the intended benefits.

However, we were surprised and disappointed that the SOC in SECY-96-077 did not reflect the openness to further discussion of a post-design certification change process that was expressed at the December 4, 1995, and July 15, 1996, public meetings. Instead, the SOC identify three existing mechanisms for addressing Tier 2 changes after design certification, none of which are adequate to achieve the intended objectives. The option of rulemaking to amend the design certifications is inoperative because it cannot be used to implement changes unless required to assure adequate protection or compliance with NRC regulations. The option to approve changes as part of the plant-specific COL application review fails to address the very concerns that have led to the proposal for a generic change process that could be used prior to the first COL application. And while the option of staff review and approval of topical reports on proposed Tier 2 changes would increase design/licensing certainty and is worthy of further discussion, it falls short of providing issue finality, and its practicality is put into question by the potential 59

resource limitations cited by staff. Further, preparation of topical reports and safety evaluation reports is unduly resource intensive, considering the necessarily low safety-significance of the design changes in question. Therefore, this approach would exacerbate the concern regarding the potential burden on NRC staff resources. A process is needed that provides for timely consideration under the "50.59-like" process of proposed generic changes to the Tier 2 design. It is because of the inadequacy of the existing options that the industry seeks further dialogue with the NRC staff in this area.

Two additional possibilities were identified at the December 4 public meeting that were not mentioned in the SOC. The first was the potential for holders of a Final Design Approval (FDA) to use a "50.59-like" standard to make changes in their FDA. And the second was the potential that Part 52 and the DCRs could be amended to allow rulemaking to incorporate generic Tier 2 changes for reasons other than adequate protection or compliance. While these alternatives have their respective weaknesses, they too are worthy of further discussion with the NRC staff.

D. Conclusion To enhance the level of design and licensing certainty necessary to support the decision to apply for a COL, a post-design certification change process is needed whereby generic Tier 2 changes identified as a result of detailed engineering work can be incorporated into the standard designs. Existing processes identified in SECY-96-077 are inadequate. There are significant benefits that would accrue to the industry, public, and the NRC through establishment of a post-design certification generic Tier 2 change process. At the very least, we request that the SOC for the final design certification rules reflect the view expressed by NRC senior management. Namely, that to the extent the industry considers the existing options for making post-design certification Tier 2 changes to be inadequate, the industry should come forward with specific proposals for discussion with the NRC staff after the design certifications are completed. We look forward discussing possible alternatives for establishing a post-design certification process and resolution of the concerns that have been expressed by the staff.

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X. Additional Change Process Issues A. Hearings on exemption requests by licensees Section 8(b)(4) would require mandatory hearings on all exemption requests by a licensee, even if there is no request for a hearing from the public. As explained by NRC's deputy general counsel at the public meeting on May 2, 1996 , that was not the staffs intent. (Tr. 36-38.) Instead, the staff intended that exemption requests by a licensee only be subject to an opportunity for a hearing, similar to license amendment requests under Part 50.

Therefore, Section 8(b)(4) should be modified to reflect the staffs intent, as follows:

An applicant or licensee who references the design certification may request an exemption from Tier 2. The Commission may grant such a request only if it determines that the exemption will comply with the requirements of 10 CFR 50.12(a). The gFanting of such an exemption must be subject to litigation in the same manner as other issues in the combined license hearing. Issuance of the exemption to a COL applicant must be subject to litigation during the combined license proceeding in the same manner as other issues material to that proceeding. Issuance of the exemption to a licensee must be subject to an opportunity for a hearing in the same manner as other license amendments.

B. Paragraph 2.B.3 of the Statements of Consideration should be clarified to state that plant specific changes will be implemented under Section 50.59 or Section 50.90, as appropriate Paragraph 2.B.3 of the Statements of Consideration of the draft final design certification rules states that the Commission will develop a process for plant specific changes to design-related information made by the COL applicant or licensee, and that the Commission expects this process will be similar to the change process providc>d in Section 8(b)(5). Such a process is unnecessary. Plant specific changes by a COL applicant or licensee should be made in the same manner as such changes are made by current Part 50 licensees. Therefore, paragraph 2.B.3 of the Statements of Consideration should be modified to provide that plant specific changes by the applicant or licensee will be implemented under Section 50.59 or 50.90 , as appropriate and subject to the back.fit provisions of Section 50.109. To the extent that a plant specific change impacts a provision in the DCD such as an interface requirement, the design certification rules will govern the change, and no additional provision is needed.

61

C. A hearing opportunity for Tier 2* changes is unnecessary and should be provided only if the change involves an unreviewed safety question (USQ)

Section 8(b)(6)(ii) of the draft final rule states that a change to Tier 2* requires a license amendment, which in turn requires the opportunity for a public hearing.

This process is overly burdensome and inappropriate for Tier 2* changes that do not involve a USQ. While the staff believes that the information in Tier 2* has higher safety significance than the other information in Tier 2, the information in Tier 2* will generally not rise to the level of significance of either Tier 1 or the technical specifications, and not all Tier 2* changes will involve a USQ.

Because Tier 2* changes that do not involve a USQ have little safety significance, and are by definition within the Commission's original safety finding, such changes should not give rise to an opportunity for a public hearing. With regard to the opportunity for hearing, such Tier 2* changes can and should be treated no differently from normal (non-USQ) Tier 2 information, changes to which are not subject to a hearing opportunity.

The industry concern regarding the automatic hearing opportunity for all Tier 2*

changes regardless of safety significance is compounded by the related NRC staff proposal that Tier 2* requirements in several areas (specified in Section 8(b)(6)(ii) of the draft final rules) continue for the life of the plant.Section VII.A of this attachment discusses the industry recommendation that all Tier 2* restrictions expire at first full power.

For these reasons, including the compounding burden of unbounded Tier 2*

restrictions discussed in Section VII.A above, we urge the Commission to modify the language in Section 8 to require prior NRC approval of Tier 2* changes, while restricting the need for a license amendment and an opportunity for a hearing to those Tier 2* changes involving unreviewed safety questions.

D. To the extent the Commission does not adopt the recommendation that all Tier 2* restrictions expire at first full power, the Statements of Consideration should be modified to reflect the staff intent that Tier 2* material in the DCD may be superseded by information submitted with a license application or amendment In the public meeting of July 15, 1996, the NRC staff raised the possibility that a COL application or amendment request could contain information that would, in effect, supersede specified Tier 2* information and thus allow changes to be made to that information after first full power without prior NRC review and approval, i.e.,

consistent with Tier 2 requirements. (Tr. pp. 104-105.) We understand that, in essence, once information superseding Tier 2* material is approved by the NRC, the staff envisions that Tier 2* restrictions would expire for that information.

62

We appreciate this useful clarification and recommend that the Statements of Consideration be modified to reflect the staffs view. However, the appropriate resolution to the issue of unbounded Tier 2* restrictions is as described in Section VII of this attachment. Specifically, Tier 2* restrictions are not necessary after first full power, and therefore all Tier 2* restrictions should expire at that time. We note that this approach will allow licensees and the NRC to avoid the significant resource burden of the amendment process envisioned by the staff.

63

DOCKETED US *'RC Westinghouse Energy Systems '96 Jl 26 All :27Westinghouse Energy Center PO Box 355 Electric Corporation Business Unit Pittsburgh Pennsylvania 15230-0355 Howard J Bruschi General Manager OFFIC E Or:~:,1 1 ~~- C-96-4777 1

Advanced Techn~ogy oocKET :1 ~ I

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A Docket No.: STN-52-003 July 24, 1996 Mr. John Hoyle Secretary of the Commission DOCKET NlMBEA U.S . Nuclear Regulatory Commission Washington, D.C . 20555-0001 PROPOSED RULE PB 2 5 (bl FR I goqq)

Attention: Docketing and Service Branch

Subject:

Comments of Westinghouse Electric Corporation re: Proposed Final Rules: Standard Design Certification for the U. S. Advanced Boiling Water Reactor and the System 80 + Standard Design

Dear Mr. Hoyle:

Westinghouse Electric Corporation ("Westinghouse") submits the following comments in response to the invitation for comments on the proposed rules for Standard Design Certifications for the U.S.

Advanced Boiling Water Reactor ("ABWR") and the System 80+ Standard Designs [61 Fed. Reg.

18099 (April 24, 1996), comment period extended at 61 Fed. Reg. 27027 (May 30, 1996)].

Because many of the determinations made in connection with the present design certification rulemakings may serve as precedent for the processes to be used in connection with certification of the Westinghouse Simplified Passive Advanced Light Water Reactor (AP600), Westinghouse has a

mbstantial interest in making certain that the design certifications currently undergoing rulemaking contain appropriate provisions with respect to such processes so that the designs certified by the NRC will provide a viable and attractive option to the United States utility industry when future plant orders in this country are being considered. Westinghouse has participated in the development by the Nuclear Energy Institute ("NEI") of its comments on the proposed design certification rules and fully s1;pports and endorses the positions set forth in the NEI comments. The purpose of these Westinghouse comments is to provide the NRC with additional insight into Westinghouse concerns with certain aspects of the proposed rules.

We:stinghouse submitted comments on August 4, 1995 and January 18, 1994 in response to the NRC Notice of Proposed Rulemaking dated April 7, 1995 and Advanced Notice of Proposed Rulemaking dated November 3, 1993, respectively, for Standard Design Certifications for the ABWR and System 80 +. In those comments Westinghouse expressed concern over the significant process deficiencies in the proposed design certification rules which, if not corrected, cast substantial doubt on the utilization of certified standardized designs. In our August 4, 1995 letter, Westinghouse expressed the view that "the battle for standardization, and hence for the future of nuclear power in the United States, will 2R56A JUL 3 0 1996..

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NSD-NRC-96-4777 DCP/NRC0557 July 24, 1996 ultimately be won or lost not only on the quality of the designs which are being proposed, but on the quality of the processes which surround the designs and which can either enhance or destroy the utility of the designs. The processes in the proposed design certification rulemakings represent a defeat for standardization in that battle."

Although changes have been made by the NRC staff in SECY 96-077 in the rules now being proposed for the design certifications, the current version of the proposed rules in many respects represents a step backward, rather than progress, in achieving workable design certification rules. Unless significant changes are made by the Commission in the areas identified in the NEI comments, Westinghouse believes the rules will not be viable and will not enable future licensees to use the Part 52 standardization process.

Two major areas where Westinghouse continues to have objections to the proposed design certification rules are the areas of finality and applicable regulations. In our letter dated August 4, 1995, Westinghouse discussed each of these issues and its objections to the NRC staff proposals in the then proposed design certification rules. (For convenience, we have attached a copy of that letter to these comments, and incorporate those comments here.) Unfortunately, the revised proposed rules do not correct the problems which we and NEI identified, but rather in some instances exacerbate them.

Finality Westinghouse has noted that in adopting Part 52, the NRC was concerned with finality -- that is, with the possibility that achievement of enhanced safety which standardization makes possible would be frustrated if too frequent changes to either the certified design or the plants referencing the design were permitted. Issues decided during design certification were not to be re-reviewed by the NRC or re-litigated in subsequent licensing proceedings. The concept of finality was critical to achieving stability through the Part 52 licensing process. However, the proposed design certification rules in their current form could open the way for re-review and re-litigation on a plant-specific basis during each licensing proceeding involving the certified design. Thus, the proposed rules are inadequate in the degree of finality which they accord to the designs.

A. Technical Specifications The draft final rules would accord no finality to the technical specifications which are included in the Design Control Document ("DCD"). The technical specifications set forth in the DCD for the ABWR and the System 80 + resulted from a lengthy process in which the industry, the U. S. Department of Energy and NRC staff expended considerable resources. These technical specifications, after review and re-review by the NRC staff, were approved by the staff with the issuance of the FSERs and the FDAs. The NRC staff now would like to treat the technical specifications merely as "conceptual information," essentially removing them from the DCD, and depriving them of finality . This is contrary to the Commission SRM on SECY 90-377, which provides finality for all information 2856A

NSD-NRC-96-4777 DCP/NRC0557 July 24, 1996 reviewed and approved by the staff in the design certification rules. (Staff Requirements Memorandum, "SECY 90-377 - Requirements for Design Certification Under 10 CPR Part 52,"

February 15, 1991.)

The NEI comments discuss why withholding finality from the technical specifications is inconsistent with established Commission policy and the design certification goals of early issue resolution of standardization and licensing certainty. If finality is not provided to the technical specifications they become subject to re-review and re-litigation in connection with each COL proceeding even if the COL applicant proposes no changes to the technical specifications. From the Westinghouse perspective, it will make no sense to expend time and effort to develop, review and refine technical specifications for the AP600 which are not to be accorded finality.

The technical specifications have been suggested by the staff in numerous written communications as the repository of the regulatory oversight to be applied to the systems determined to be important in the resolution of the regulatory treatment of nonsafety systems (RTNSS) issue for the passive plant designs. Re-review and/or re-litigation of the technical specifications on each combined license (COL) application would totally negate the design related agreements reached during the original review of the AP600. This would result in not only a loss of standardization, but in a loss of the simplification that is the fundamental underpining of the passive plant. While these evolutionary plant rulemakings are not directly applicable to the AP600, they provide the precedent that the staff will follow in formulating the AP600 rule in 1997. To consider the technical specifications that were reviewed and approved by the staff merely as "conceptual information" destroys the licensing certainty of the AP600 design that was the intent of Part 52. Thus, Westinghouse believes that technical specifications relating to the design should be accorded finality in connection with the design certification process.

B. Backfits for Operational Issues (Section 4(c))

The draft final design certification rules for the ABWR and System 80 +, after stating the facility operation is not within their scope, state that "the Commission reserves the right to impose requirements for facility operation on holders of licenses referencing this appendix by rule, regulation, order or license condition." This proposed provision, which did not appear in prior versions of the proposed rules, would give the NRC the right to impose backfits on the certified designs based on "operational issues. " The statement of considerations accompanying the draft final rule states that this provision may be used by the NRC to impose requirements "for portions of the plant within the scope of [the] design certification," thus raising the specter of imposing backfits on the certified designs.

Such backfits on the standard design certifications apparently could occur without regard to the backfit protections of either Section 52. 63 or Section 50 .109.

2856A

~ - - - -- -- - - - -- - ~

NSD-NRC-96-4777 DCP/NRC0557 July 24, 1996 The provision allowing NRC-imposed backfits for operational issues without regard to backfit protections would destroy standardization. Section 52.63, which requires that there be treated and resolved in licensing proceedings "those matters resolved in connection with the issuance or renewal of a design certification" and which limits imposition of new requirements on a certified design either to bringing the plant into compliance with Commission regulations applicable and in effect at the time the certification was issued or to assure adequate protection of the public health and safety or the common defense and security, was placed in the regulations by the NRC only after a considerable discussion of the balance between the desire to make future changes and the need for a stable licensing process in which re-review and re-litigation was to be avoided. When Part 52 was passed, it was recognized that there will always be additional experience arising from plant operations after a design has been certified, and that potential improvements to a certified standard design were always possible. Section 52.63 was crafted to provide an appropriate balance between the desire to incorporate new information and new ki.1.owledge and the desire to stabilize the licensing process.

The standard adopted by the Commission in Section 52.63 was meant to be higher than the backfit provisions of Section 50.109 - provisions which were added to Commission regulations after a long and difficult struggle in order to impose discipline on the licensing process under Part 50. Without the provision of Section 52.63, standardization would not be achieved, in words that were used at the time, except "one plant at a time." The NRC staff proposal in the proposed rules that the designs which are certified can be changed due to operational requirements, without regard to the backfit protections of Section 52.63, would destroy the benefits of standardization and would return us to the unstable regulatory regime of Part 50 that Part 52 was designed to correct.

Applicable Regulations Westinghouse again expresses its strong objection to the use of design specific rulemakings to provide the "applicable regulations." In the comments contained in Westinghouse letters of August 4, 1995, and January 18, 1994, Westinghouse, in responding to the NRC request for advice on the "acceptability or using design-specific rulemakings rather than generic rulemaking for the technical issues whose resolution exceeds current requirements" stated that the adoption of such a proposal would significantly and adversely affect the design certification process. Nevertheless , the design certification rules currently being proposed contain applicable regulations. We believe the inclusion of such applicable regulations in the design certifications is inappropriate and will destroy the goal of Part 52 to establish a predictable, stable licensing process. As noted in the NEI comments, the proposed applicable regulations are unnecessary either to restrict changes by licensees or for any of the other reasons asserted by the NRC staff.

2856A

NSD-NRC-96-4777 DCP/NRC0557 July 24, 1996 Applicable regulations are of special concern to Westinghouse in connection with design certification of the AP600. The AP600 design departs from current nuclear plant designs and from the evolutionary designs of the ABWR and System 80 + by relying on passive safety systems to assure safe operation and safe shutdown of the plant. The review being undertaken by the NRC staff is design-specific to this first-of-a-kind passive plant proposal. To undertake within the design certification rulemaking for the AP600 not only resolution of the technical issues for the specific AP600 design but also rulemaking on generic "applicable regulation" for passive designs will be to unnecessarily burden and delay the rulemaking. The adequacy of the AP600 design and the ability of the NRC in the future to control departures from the design, or to impose modifications to the design will not depend upon the adoption of applicable regulations relating to passive plants. Rather than ensuring compliance with NRC staff positions or enforceability of NRC positions - the apparent intent of including "applicable regulations" in the design certification rulemakings - the "applicable regulations" would create a potential for varying interpretations by the NRC staff, both in connection with design certification and throughout the life of the certified design. Westinghouse believes the same situation is true with respect to the applicable regulations relating to the ABWR and System 80 + , and that adoption of such applicable regulations is inappropriate for any design certifications.

Conclusion Design certifications and combined licenses represent the future of the nuclear industry in the U.S . If the final design certification rules contain the significant process deficiencies found in the proposed rules , the type of commitments necessary for future nuclear power plant development in the U .S. will be discouraged. Accordingly, Westinghouse urges the NRC to take into consideration the comments contained in this letter, together with the NEI and other nuclear industry comments, in promulgating the final design certification rules for the ABWR and System 80 +.

Westinghouse thanks the NRC for the opportunity to comment on the NOPR and looks forward to further interaction with the NRC as the design certifications progress.

Very truly yours,

~-~*

/nja cc: Chairman Jackson Commissioner Rogers Commissioner Dicus J. Taylor - EDO K. Cyr - General Counsel 2856A

Westinghouse Energy Systems Westinghouse Energy Center Electric Corporation PO Box 355 Business Unit Pittsburgh Pennsylvania 15230-0355 Howard J Bruschi General Manager DCP/NRC0375 Advanced Technaogy August 4, 1995 Mr. John Hoyle Secretary of the Commission United States Nuclear Regulatory Commission Washington, D_C 20555 Attention: Docketing and Service Branch

Subject:

Comments of Westinghouse Electric Corporation re: Proposed Rules: Standard Design Certifications for the U.S. Advanced Boiling Water Reactor and the System 80+ Standard Designs

Dear Mr_ Hoyle:

Westinghouse Electric Corporation ("Westinghouse") submits the following comments in response to the invitation for comments on the proposed rules for Standard Design Certifications for the u_s.

Advanced Boiling Water Reactor and the System 80+ Standard Designs (60 Fed. Reg. 17902 and 17924 (April 7, 1995) (Docket Nos.52-001 and 52-002)]_ Westinghouse has participated in the development by the Nuclear Energy Institute ("NEI") of its comments on the proposed design certification rules for both the ABWR and System 80+ and fully supports and endorses the positions set forth in the NEI comments. The purpose of these Westinghouse comments is to provide the Nuclear Regulatory Commission ("NRC") with additional insight into Westinghouse concerns with certain aspects of the proposed rules with respect to the change process, changes by design certification applicants, finality and applicable regulations.

Westinghouse has submitted to the NRC an application for certification of the Simplified Passive Advanced Light Water Reactor (AP600). That application currently is under review by the NRC staff_

Many of the determinations made in connection with the present design certification rulemakings for the ABWR and System 80+ may serve as precedent for the processes to be used in connection with the certification of the AP600. Accordingly, Westinghouse has a substantial interest in making certain that the design certifications currently undergoing rulemaking contain appropriate provisions with respect to such processes so that designs certified by the NRC will provide a viable and attractive option to the U. S. utility industry when future plant orders in this country are being considered_

Westinghouse underscores NEI's concerns over the significant process deficiencies in the proposed design certification rules which, if not corrected, cast substantial doubt on the utilization of certified standardized designs. Simply stated, the proposed design certification rules contain process flaws of a serious and significant nature which need to be corrected in the final rule to insure the viability and workability of the licensing process for standardized nuclear power plants.

When the NRC added Part 52 to its regulations in 1989 to provide for the issuance of early site permits, standard design certifications and combined construction permits and operating licenses, the NRC declared that its action was intended to achieve "early resolution of licensing issues and enhance 2541 A * (109-95*hjb)

the safety and reliability of nuclear power plants." (54 Fed. Reg. 15372 (April 18, 1989)]. However, rather than enhancing standardization and making the licensing process more predictable and stable --

two of the goals of Part 52 -- certain of the procedural provisions in the design certification rules being proposed for the ABWR and System So+ will have the contrary effect. In many respects, the proposed design certification rules will introduce even more uncertainty than exists in the Part 50 licensing process. Westinghouse believes it is important for the Commission to correct the deficiencies in the proposed rules to achieve the goals of design certification and Part 52 sought by the Commission and by the nuclear industry.

There appears to be a fundamental philosophical problem with respect to certain processes proposed in the design certification rules. The rules reflect a reluctance to accept the discipline intended when the Part 52 licensing process was established -- that once a proposed standard design has been reviewed and the Commission has issued a design certification rule with respect to that design, all matters resolved in connection with the issuance of that rule will be treated as resolved by the Commission.

This philosophical problem accounts for the very narrow concept in the proposed design certification rules of what will be accorded finality and the denial of finality even to matters which are subject to hearing and resolution in the design certification rulemaking proceedings. The problem also can be seen in the denial in the proposed rules of finality to proprietary information, safeguards information and secondary references which are submitted to, and reviewed by, the NRC as part of its review of the design certification applications. Even under the Part 50 process, such information is accorded finality . The failure of the proposed rules to provide finality to safety issues within the scope of the design unless those issues are discussed in the Design Control Document ("DCD") or Final Safety Evaluation Report ("FSER") and the failure of the proposed rules to provide finality to issues related to the adequacy of the standard designs are reflections of a philosophical approach to design certification which is at odds with the concepts on which standardization and Part 52 are based.

This same philosophical problem also is the underlying reason for the inappropriate inclusion in the proposed design certification rules of "applicable regulations" and the vague, almost wisp-like quality to the proposed applicable regulations. Including broadly-worded applicable regulations as part of the design certification rules appears to be the result of an attempt to maintain maximum flexibility to impose changes and backfits, all at the expense of the underlying concepts behind the standardization process.

Similarly, the philosophical problem is behind an unwillingness in the proposed rules to recognize and utilize the long-standing NRC regulatory practices under Section 50.59 without the introduction of a new concept which would define an "unreviewed safety question" in relationship to whether the NRC has previously reviewed and approved the issue. This radical departure from prior NRC practice and procedure will have the effect of prohibiting virtually all changes to the standardized designs without prior NRC approval, thereby destroying the applicability of the Section 50.59 process to standardized plants.

In short, the processes contained in the proposed design certification rules tum the carefully crafted NRC Part 52 licensing process from one of early identification and resolution of safety issues and a more stable, predictable licensing process to one which undermines standardization and which will discourage the type of commitments necessary for the development, approval and use of standardized final designs. Westinghouse believes it is necessary for the Commission to go back to basics, to review the rulemaking record underlying Part 52 and the Commission determinations when it adopted Part 52 and to impose discipline in such a manner that the processes contained in the design certification rules are in keeping with the basic intent of the Commission in its lengthy development of the standardization process. In the Westinghouse view, the battle for standardization, and hence for the future of nuclear power in the United States, will ultimately be won or lost not only on the quality 2541A * (109-95-hjb) 2

of the designs which are being proposed, but on the quality of the processes which surround the designs and which can either enhance or destroy the utility of the designs. The processes in the proposed design certification rulemakings represents a defeat for standardization in that battle.

With this fundamental philosophical problem in mind, Westinghouse has the following additional comments to specific aspects of the proposed design certification rules.

Change Process The notices of proposed rulemaking ("NOPR") provide that an applicant or licensee who references a design certification rule must obtain prior NRC approval for departures from Tier 2 information "if the change involves an issue that the NRC staff has not previously approved" or if the change is inconsistent with the resolution of an issue in the FSER (see 60 Fed. Reg. at 179 I 2-179 l 3). These provisions are contrary to the provisions of NRC regulations in 10 CFR Section 52.63(b)(2) and 10 CFR Section 50.59 and should be deleted from the final rule.

Section 50.59, which is incorporated by reference in Section 52.63 (b)(2), requires prior NRC approval for changes made by a licensee only when the changes involve an unreviewed safety question or a change to the plant technical specifications. An "unreviewed safety question" is defined in terms of the impact of the change on safety. The NOPR, by defining an unreviewed safety question in terms of whether a matter has previously been approved or resolved by the NRC, would radically depart from NRC practice and procedures dating back to the 1960's. No reason is given in the NOPR for this departure, which would fundamentally alter the way the NRC implements its change process. The proposed new standard cannot be justified on a safety basis, since the current criteria in Section 50.59 require NRC approval for any change which adversely affects safety. The effect of the proposed NOPR language would be to prohibit virtually all changes without prior NRC approval. (At the May 11, 1995 public meeting on the NOPR, the NRC staff indicated that the NRC did not intend to establish a new criterion or different criterion. However, the NRC staff comment did not provide an accurate explanation of the current practice under Section 50.59, and thus is not adequate to allay our concerns.) Westinghouse believes such a drastic departure from longstanding NRC practice is not warranted and will adversely affect the usefulness of the certified designs.

The change process contained in the proposed design certification rules is flawed in another respect.

The proposed rules would establish a "50.59-like" process allowing applicants and licensees to make changes in Tier 2 without prior NRC approval unless the change involves a change in Tier 1, a change in technical specifications or an unreviewed safety question. However, Section 8(b)(5) of the proposed rules would require consideration of changes in the severe accident risk and probabilistic risk evaluations. As discussed in the NEI comments, this requirement would be extremely burdensome and is neither necessary nor desirable. In seeking to apply Section 50.59 to all severe accident and probabilistic evaluations the rules would go far beyond the goal of preserving severe accident and PRA insights and would require evaluations on matters not important to safety, including evaluations on systems having no safety-related function. Westinghouse believes the NRC should not impose this needless burden on the certified designs which will only have the effect of making the designs less attractive as an alternative for providing power in the future.

Changes by Design Certification Applicants The proposed design certification rules would not permit a design certification applicant to make changes to Tier 2 using the Section 50.59 - like change process. (Section 52.63 (b)(2) and the proposed design certification rules allow a COL applicant or licensee to make such changes under a Section 50.59 - like process.) Although submissions to the NRC for design certification will contain 2S41A * (109-9S-hjb) 3

all information necessary for the NRC to reach a final conclusion on all safety questions associated with the design, additional design work will be performed by design certification applicants after issuance of the design certification rules in order to provide added details relating to the designs. In the course of performing this detailed design development, Westinghouse believes there will be occasions when potential improvements in Tier 2 of the design will be identified. If such improvements or changes to Tier 2 fall within the type of changes that are appropriate to be made under a 50.59-like process, Westinghouse believes that a design certification applicant should be allowed to make such changes until a design has been referenced in the first license application. Such authorization will benefit standardization and will promote regulatory efficiency because these changes would become requirements for all plants that reference the design certification. Conversely, because the ability to make such 50.59-like changes by the design certification applicant would end when the first license application referencing the design is submitted, there will be no lessening of the benefits of standardization by allowing such a process.

Finality In adopting Part 52, the NRC was concerned with finality - that is, with the possibility that achievement of enhanced safety which standardization makes possible would be frustrated if too frequent changes to either a certified design or the plants referencing the design were permitted.

Section 52.63(a)(4) thus states that there shall be treated as resolved in license proceedings "those matters resolved in connection with the issuance or renewal of a design certification." Issues decided during the design certification were not to be rereviewed by the NRC or relitigated in subsequent licensing proceedings. The concept of finality was critical to achieving stability sought through the Part 52 licensing process. Rereview and relitigation was one of the major deficiencies of the Part 50 licensing process and preventing such rereview and relitigation was one of the major goals of the Part 52 process.

The proposed design certification rules, however, represent a retreat from the NRC quest for finality in the design certification process. As currently written, the NOPR would result in design information reviewed by the NRC staff and resolved as part of the design review and certification process being subject to rereview and relitigation on a plant-specific basis during licensing proceedings. Such a result is directly contrary to the purpose of Part 52, undermines the regulatory foundation of standardization and is unacceptable.

The proposed design certification rules introduce substantial uncertainties and instability in the licensing process. Perhaps most egregious, there is no clear statement in the proposed rules that the designs being certified meet the applicable standards of the Atomic Energy Act and Commission regulations, determinations required to be made under Section 52.54 for the Commission to certify the designs. Thus, the proposed rules provide no finality with respect to the adequacy of the design, even though the NRC must reach a final conclusion on all safety questions associated with the design in order to finalize the design certification rules. Westinghouse believes it is essential that any design certification rule state that the design satisfies relevant Commission regulations and provides the required reasonable assurance of adequate protection of the health and safety of the public. Inherent in this finding must be a determination that no additional or alternative features are required. Also mandated is a statement that all nuclear safety issues associated with the design have been resolved.

The rules as proposed would provide no finality to safety issues within the scope of the standard designs unless they are discussed in the DCD or the FSER. Even if an issue becomes the subject of and is considered by the NRC in the design certification rulernaking proceeding, the resolution of the issue would not be accorded finality under the proposed rules. The rules as proposed also provide no finality to material contained in the voluminous safety analysis reports ("SARs") or in the dockets of 2S4 IA - (109-95-hjb) 4

the rulemakings unless such material also is discussed in the DCD or FSER. Moreover, the proposed rules afford no finality to changes made to Tier 2 in accordance with the 50.59 - like process or to changes which are subject to review by the NRC and to an opportunity for hearing. Finally, the proposed rule affords no finality to proprietary information, safeguards information or information which appears in secondary references, all of which were considered by the NRC staff in its review of the designs. Thus, with respect to finality the proposed rules represent a major step backward from the type of certainty and stability that Part 52 was intended to provide, and in many ways afford even less stability and certainty than the Part 50 licensing process.

During discussions leading to the adoption of Part 52, Westinghouse sought to allow designs to be certified either by license or rule. Westinghouse was concerned that design certification by rulemaking would not accord the proponent of a certified design the type of protection that would be accorded in connection with licensing of the design. The thrust of the NRC response in rejecting the Westinghouse position and permitting design certification only by rulemaking was that the design certification process was intended to place the design certification proponent in the same position as though there had been a license granted for the design. The finality provisions in the proposed rules are contrary to these assurances provided at the time of the adoption of Part 52. If design certification had been by license and not by rulemaking, finality would have been accorded to all aspects of the application and design, including all aspects of the SAR, the results of the licensing hearing, changes to the design, proprietary information, safeguards information, and secondary references. Thus, in addition to the problems discussed by NEI in its comments on the inadequate finality accorded the certified design, Westinghouse believes that the finality provisions are contrary to the intent of the NRC when it decided to allow design certification only by rulemaking.

Applicable Regulations Westinghouse strongly opposes the use of the design-specific rulemakings to provide for "applicable regulations." In comments dated June 18, 1994 on the Advance Notice of Proposed Rulemakings to Grant Standard Design Certification for Evolutionary Light Water Reactor Designs [58 Fed. Reg.

58664 - (November 3, 1993)], Westinghouse, in responding to the NRC's request for advice on the "acceptability of using design specific rulemaking rather than generic rulemaking for the technical issues whose resolution exceeds current requirements," stated that adoption of such a proposal would significantly and adversely affect design certification. Nevertheless, under the scheme proposed in the NOPR, each design certification rule would contain a collection of "applicable regulations" which will destroy the goal of Part 52 to establish a predictable, stable licensing process. Moreover, as noted in the NEI comments, the proposed "applicable regulations" are unnecessary either to restrict changes by licensees or for any of the other reasons asserted by the NRC staff.

The broadly-worded language contained in the applicable regulations proposed for the ABWR and System 80+ only make this more of a concern. Phrases contained in the proposed "applicable regulations" such as "shall be minimized," "to the extent practical," "use of advanced... techniques,"

"demonstration of adequate defense," "must facilitate," "reduce the potential for," and "most significant" are so vague and general that they allow for an endless variety of interpretations throughout the life of the design and an endless opportunity for destabilizing backfits. Thus, the proposed "applicable regulations" result in a less stable, less predictable licensing process.

Finally, Westinghouse believes that not only is the concept of applicable regulations inappropriate for design certification, but that the process by which the NRC proposes to adopt the applicable regulations in the current rulemaking is flawed and does not comport with the requirements of law, including the Administrative Procedure Act.

2541A * (109-95-hjb) 5

Request to Participate in Hearings The NOPR provides that an interested party may request an informal hearing in accordance with 10 CFR 52.51 on matters pertaining to the design certification rulemaking and that such request must be submitted by August 7, 1995. Although Westinghouse does not request an informal hearing on these comments, if the NRC decides to hold a hearing at the request of others, Westinghouse requests the right to participate in such a hearing.

Westinghouse would desire to be heard on that portion of the NOPR upon which the NRC has granted a requestor's request for hearing, would use reasons and would rely on arguments set forth in these comments and the NEI comments. As the design certification applicant for the AP600, Westinghouse is acquainted with the substantive and procedural content and provisions affecting the NOPR, possesses the requisite technical capability to understand the factual matters and help develop a record on any issue for which a hearing is requested and possesses a detailed understanding of the NRC hearing procedures.

Conclusion Design certifications and combined licenses represent the future of the nuclear industry in the U.S. If the final design certification rules contain the significant process deficiencies found in the proposed rules, the type of commitments necessary for future nuclear power plant development in the U.S. will be discouraged. Accordingly, Westinghouse urges the NRC to take into consideration the comments contained in this letter, together with the NEI and other nuclear industry comments, in promulgating the final design certification rules for the ABWR and System 80+.

Westinghouse thanks the NRC for the opportunity to comment on the NOPR and looks forward to further interaction with the NRC as the design certifications progress.

Very truly yours,

-~~*

cc: Chairman Jackson Commissioner Rogers J. Taylor, EOO K. Cyr, General Counsel 2S41A - (109-95--hjb) 6

DOCKETED US , RC NUCLEAR ENERGY INSTITUTE

• 96 JUL 23 P6 :Q8 Thomas E. Tipton

-,41 ! /' RE S!Otr *JI OFFICE Or :ECPF~ ' RY DOCKET I lG & SEr( ii CE BP I, r DOCKET NLMBER PR July 23, 1996 PROPOSED RULE 52 (l. I= R l <?o 1., '9) 1 /

The Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 ATTENTION: Docketing and Service Branch

SUBJECT:

Supplementary Notice of Proposed Rulemaking: Standard Design Certification for the U.S. Advanced Boiling Water Reactor and the System 80+ Standard Designs (61 Fed. Reg. 18099)

On behalf of the nuclear power industry, the Nuclear Energy Institute (NEI)* is providing these comments in response to the subject notice. We have previously commented, in a letter dated August 4, 1995, on the related Notice of Proposed Rulemaking (60 Fed. Reg. 17902 and 17924).

These design certification rulemakings mark the most significant milestone thus far in implementation of the NRC's major licensing reform initiative, 10 CFR Part 52.

The achievement of this milestone reflects the investment of enormous resources and efforts by the design certification applicants and the broader nuclear industry, as well as the NRC. This investment of human and financial resources has paid off in standard designs of unquestionably enhanced safety and reliability. The Part 52 goal of safer, more reliable new nuclear plant designs has been emphatically achieved.

Unfortunately, however, the Part 52 goals of early resolution of safety issues and a predictable, stable licensing process have not been fully realized. The enclosed

• NEI is the organization responsible for establishing unified nuclear industry policy on matters affecting the nuclear energy industry, including the regulatory aspects of generic operational and technical issues. NEl's members include all utilities licensed to operate commercial nuclear power plants in the United States, nuclear plant designers. major architect/engineering firms, fuel fabrication facilites , materials licensees, and other organizations and individuals involved in the nuclear energy industry. JUL 3 O 1996_

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The Secretary of the Commission July 23, 1996 Page2 comments respond to a number of significant new licensing process issues raised in this supplementary notice, as well as several longstanding issues which are yet to be resolved. We urge the Commission to carefully consider the nuclear industry's perception of the impact of these issues on the workability of the Part 52 process.

We appreciate the opportunity to comment on this Supplemental Notice of Proposed Rulemaking. Any questions on our comments may be directed to me, Ron Simard or Russ Bell of our staff.

Sincerely,

• ~P,,

Thomas E. Tipton Enclosure

July 23, 1996 DETAILED INDUSTRY COMMENTS ON THE DRAFT FINAL DESIGN CERTIFICATION RULES FOR THE ADVANCED BOILING WATER REACTOR AND THE SYSTEM 80+ STANDARD PLANT (SECY-96-077)

Industry Comments on Supplementary Notices of Proposed Rulemaking's for the ABWR and System 80+ Standard Plant Designs (SECY 96-077)

I. Finality A. Introduction 1

- B.

C.

D.

Changes approved by the NRC should have protection under Section 52.63 from backfits Changes made in conformance with the Section 50.59-like process should have finality A de nova review of the design is not required for design 2

3 4

certification renewal E. Section 6(b) should be changed to reflect the staff's intent 7 regarding finality in enforcement proceedings F. Section 6(b)(4) should be clarified regarding the finality of 7 SAMDA evaluations G. Section 8(b)(5)(vi) should be modified to clarify that a 8 Section 50.59-like change is not subject to hearing under Section 52.103 or Section 50.90 unless the change bears directly on an asserted ITAAC noncompliance or the requested amendments, respectively H. Conclusion 8 II. Finality for the Technical Specifications A. Introduction 11 B. The standardized technical specifications in the DCDs should 11 remain part of the design certifications and be accorded finality because they have been reviewed and approved by the NRC C. Withholding finality from the Tier 2 technical specifications 11 would be inconsistent with established Commission policy and the design certification goals of early issue resolution, standardization, and licensing certainty D. The staff's current proposal is inconsistent with previous NRC 12 guidance E. The industry has proposed a logical, effective process for giving 13 technical specifications finality while ensuring a single document and change process F. July 15 discussion with NRC senior management 14 G. Conclusion 16 l

III. Newly Proposed Section 4 Should be Substantially Revised, Including Deletion of the Proposed Additional Operational Requirements and Backfit Provisions A. Introduction 18 B. The backfit provisions in Section 4(c) contradict 10 CFR 52.63 18 and are incompatible with the purpose of Part 52

1. Proposed Section 4(c) is not needed to enable the NRC to 19 impose operational requirements outside the scope of the DCD

2. Contrary to Section 52.63, proposed Section 4(c) would enable 19 backfitting of operational-related requirements of the DCD

3. Contrary to Section 52.63, proposed Section 4(c) would lessen 20 restrictions on backfitting of design requirements of the DCD

4. Proposed Section 4(c) is contrary to clear Commission policy 21 guidance

5. Summary 21 C. The design certification rules should not be used to impose 22 additional "operational requirements" D. Section 4(d) should be revised to reflect the Part 52 provisions 24 allowing reference to the design certifications in Part 50 proceedings E. Conclusion 25 IV. "Applicable Regulations" A. Introduction 27 B. The proposed new "applicable regulations" would constitute 27 NRC regulation to the state-of-the-art of technology C. "Applicable regulations" would be adverse to licensing stability 28 and thus the viability of the Part 52 process

1. "Applicable regulations" would undermine explicit change 28 process provisions established by the Commission in Section 52.63

2. It is unnecessary and inappropriate to include new 28 "applicable regulations" in design certification rules D. The wording of the additional "applicable regulations" is vague 30 and inconsistent with previous Commission directions E. The "applicable regulations" for operational issues should be 30 deleted from the rules F. The NRC staff proposal is contrary to the purpose of the design 31 certifications and Commission policy guidance

1. What was the Commission's original intent regarding 31 "applicable regulations?"

2. What was intended by the Commission guidance that 32 technical and severe accident issues be resolved via design-specific rulemakings through the design certifications?

ll

G. The NRC staff's latest proposal does not resolve the concerns 33 associated with "applicable regulations" H. Conclusion 34 V. Application of the Section 50.59-like Change Process to Chapter 19 Information A. Introduction 35 B. If the Commission decides not to restrict application of the 50.59- 36 like process to Section 19.8 for the ABWR or Section 19.15 for the System 80+, then the Commission should apply the criteria of Section 8(b)(5)(iii) to all of Chapter 19

1. In addition to Section 19E for the ABWR and Section 19.11 for 36 the System 80+, the other sections in Chapter 19 contain evaluations of severe accidents and other beyond-design basis conditions

2. The staff's proposal would impose undue burdens on both the 38 industry and the NRC with no corresponding safety benefit C. The draft final rules are inconsistent with the resolution of this 38 issue proposed by NRC senior management D. NRC senior management proposal at the July 15, 1996, public 39 meeting E. Conclusion 41 VI. The Rules Should Incorporate All Substantive Provisions of the DCD Introduction A. Introduction 43 B. The NRC staff's incorporation of substantive provisions was 44 incomplete C. July 15 public meeting discussion 47 D. Conclusion 48 VII. All Tier 2* Restrictions Should Expire at First Full Power A. Introduction 50 B. The NRC staff's rationale for continuing Tier 2* change 51 restrictions after first full power fails to explain the significance associated with the extension

1. Equipment seismic qualification methods 51

2. Piping design acceptance criteria 52

3. Fuel burn-up limit 52

4. Control room human factors engineering and human factors 53 engineering design and implementation C. Conclusion 53 Ill

VIII. NRC ITAAC Verification A. Introduction 55 B. The statements of consideration should be clarified to ensure 55 they reinforce and focus on the ITAAC verification provision C. Discussion of anticipated quality requirements for licensee 56 ITAAC activities is not germane to NRC ITAAC verification and should be deleted from the SOC D. SOC discussion of licensee documentation and submittals 56 regarding ITAAC verification is beyond the scope of the certifications and should be deleted E. Conclusion 57

• • IX. Post-Design Certification Tier 2 Change Process A.

B.

C.

Introduction A post-design certification Tier 2 change process holds significant benefits for the industry, the public, and the NRC The statements of consideration for the design certification rules 58 58 59 should reflect the openness expressed in public meetings to future consideration of a post-design certification Tier 2 change process D. Conclusion 60 X. Additional Change Process Issues A. Hearings on exemption requests by licensees 61 B. Paragraph 2.B.3 of the Statements of Consideration should be 61 clarified to state that plant specific changes will be implemented under Section 50.59 or Section 50.90, as appropriate C. A hearing opportunity for Tier 2* change is unnecessary and should be provided only if the change involves an unreviewed 62 safety question (USQ)

D. To the extent the Commission does not adopt the recommendation that all Tier 2* restrictions expire at first full 62 power, the Statements of Consideration should be modified to reflect the staff intent that Tier 2* material in the DCD may be superseded by information submitted with a license application or amendment IV

Industry Comments on Draft Final Design Certification Rules for the ABWR and System 80+ Standard Plant Design SECY 96-077 LIST OF TABLES Table 1 Suggested Rule Language for Resolution of Finality Concerns 9 Table 2 Suggested Additional Provision for Section 2(d)(5) of the Final 17 Rules to Clarify the Status of the Proposed Technical Specifications in Chapter 16 of Tier 2 Table 3 Suggested Language for Section 4 of the Design Certification 26 Rules Table 4 Suggested Rule Language on Chapter 19 Consideration in the 42 Section 50.59-like Change Process Table 5 Suggested Rule Language for Section 9(b)(3). 49 Table 6 Suggested Rule Language for Section 8(b)(6) 54 V

DETAILED INDUSTRY COMMENTS ON DRAFT FINAL DESIGN CERTIFICATION RULES (SECY-96-077)

I. Finality A. Introduction A principal purpose of Part 52 is to create a more stable and predictable regulatory environment by resolving safety issues during design certification such that these issues have finality in later licensing proceedings (i.e., are not subject to re-review by the NRC or re-litigation in hearings). In this regard, 10 CFR 52.63(a)(4) states that "the Commission shall treat as resolved those matters resolved in connection with the issuance or renewal of a design certification," and Section 52.63(a) prohibits backfits by the NRC except as necessary for compliance with the NRC regulations in effect at the time of certification or to achieve adequate protection of the public health and safety.

When the proposed design certification rules were issued, the industry found the finality provisions to be inadequate and inappropriate because the scope of issues accorded finality was too narrow, changes made in accordance with the change process were not accorded finality, and the rule did not specifically provide for finality in all subsequent proceedings. As a result, and because this issue is a cornerstone of Part 52, the industry submitted extensive comments on the proposed rule regarding finality.

When the draft final design certification rules were issued, some progress had been made in this area. For example, the NRC broadened the scope of issues accorded finality to include: all nuclear safety issues associated with the information in the Final Safety Evaluation Report (FSER) and any supplements to it; the generic Design Control Document (DCD), including referenced information that is intended as requirements, such as referenced proprietary information; and the rulemaking record. The NRC also added language to the rule regarding the sufficiency of the design which provides additional protection against backfits, and expanded the types of proceedings in which the matters covered by a design certification are accorded finality.

However, we noted with concern a growing divergence between the industry and staff regarding certain provisions related to finality under Part 52. In the industry's view, the positions taken on these issues in the draft final rule and the public meeting on May 2, 1996, would significantly erode certainty and predictaQility. Specifically:

• NRC-approved changes to Tier 1, Tier 2* and unreviewed safety questions (USQs) do not have protection under 10 CFR 52.63 against subsequent NRC backfits; 1

• Tier 2 changes made in accordance with the Section 50.59-like process may be deprived of finality; and

• A de novo review of the standard design may be required for design certification renewal.

To ensure that Part 52 license proceedings have the viability intended by Part 52 and the Energy Policy Act of 1992, we believe that the NRC should not be allowed to impose backfits after the NRC has approved a change within the scope of the standard design certification unless the stringent backfit criteria of Section 52.63 are satisfied. Similarly, finality should be provided to changes made in accordance with the design certification change process. Moreover, language is needed that ensures an appropriate focus for NRC review in connection with design certification renewal. Finally, the standardized technical specifications should remain part of the certification and be accorded finality, consistent with previous Commission policy and extensive NRC/applicant interactions. Each of these issues is discussed in detail below. The status of the standardized technical specifications is discussed separately in Section II. Additionally, Sections E, F, and G, below, discuss important clarifications to the finality and change process provisions in Section 6(b) and S(b) of the rules.

B. Changes approved by the NRC should have protection under Section 52.63 from backfits All changes to Tier 1 and Tier 2*, and changes to Tier 2 that involve an unreviewed safety question or a change in the technical specifications, require prior NRC approval as well as an opportunity for a public hearing 1 . The draft final rules provide that these approved changes would not have finality under Section 52.63(a). (See Statements of Consideration (SOC) Sections II.A. I and II.B. 7; Rule Sections 6(b)(3) and 8(b)(6)(i); and statements by the NRC deputy general counsel at the NRC public meeting on May 2, 1996, Tr. 62-63.) Thus, such changes would be subject to potential NRC backfits under 10 CFR 50.109, which allows the NRC to impose backfits meeting a cost-benefit standard that are not otherwise required to assure adequate protection of public health and safety. As stated in our August 1995 comments on the proposed rules and explained more fully below, we believe that such changes should have finality under Section 52.63 after they have been approved by the NRC.

The more restrictive change control processes for changes to or affecting Tier 1, Tier 2*, or Tier 2 changes involving a change to the technical specifications or a USQ are appropriate and consistent with the generally greater safety significance 1 While we generally agree with the rules' provisions in this regard, we do not agree, as discussed in Section X. C of this attachment, that Tier 2* changes that do not involve an USQ should be subject to a hearing opportunity.

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of this information relative to Tier 2 information. As the NRC staff has observed in public meetings on Dec. 4, 1995 and July 15, 1996, a more restrictive process is also consistent with the Part 52 goal of standardization. However, it does not follow that once such changes are implemented in accordance with design certification requirements that they should lose Section 52.63 backfit protection, or that different backfit provisions should apply to changes made under differing provisions within Section 8 of the rules. Indeed, the staff's proposal would have the effect of applying different backfit standards to different components within the scope of the standard design. For example, unchanged components would be subject to Section 52.63 whereas modified components would be subject to Section 50.109. As a result, the staff's proposal would create undue complexity and the potential for confusion.

Additionally, we note that the draft final rules, supported by the Statements of Consideration, would accord Section 52.63 backfit protection to changes made without prior NRC approval under the "50.59-like" process. As discussed in the following section, we support this result for the final rules. It would be illogical not to accord such protection to other Tier 2 and Tier 1 changes considering these would be subject to a more rigorous change process, including prior NRC staff approval and a public hearing opportunity.

Furthermore, by subjecting approved changes to backfits under Section 50.109 rather than Section 52.63, the NRC would be creating uncertainty and instability.

In particular, for the affected portion of the standard design, the benefits of Part 52 would be lost. In light of the substantial increase in safety achieved by these new standardized designs, such a result is clearly unwarranted. Also, depriving approved changes of protection under Section 52.63, could have the effect of discouraging changes that might actually increase the safety or effectiveness of the design. For all these reasons, the Commission should modify the rules to accord Section 52.63 backfit protection to changes that have been approved by the NRC.

C. Changes made in conformance with the Section 50.59-like process should have finality The proposed rules included a Section 50.59-like process, whereby applicants and licensees can make changes in Tier 2 provided that such changes do not involve an unreviewed safety question. In our August 1995 comments on the proposed design certification rules, we stated that changes made under the Section 50.59-like process should have finality, and should not be subject to an opportunity for a hearing, because such changes would be within the envelope of the NRC's original safety finding on the standard design. Further, we stated that members of the public should be allowed to challenge these changes only by means of a petition under 10 CFR 2.206, consistent with the process governing such changes by Part 50 licensees.

In the draft final rules, the NRC agreed that changes properly implemented under the Section 50.59-like process are within the envelope of their original safety 3

finding and therefore should be matters resolved within the meaning of 10 CFR 52.63(a)(4). (See Section 6(b)(3) of the draft final rule.) The NRC included in Section 8(b)(5)(vi) an expedited review process, similar to that provided in 10 CFR

2. 758, for contesting whether such changes were properly implemented.

The process proposed by the NRC appears to provide an appropriate balance between stability in the licensing process and the hearing opportunity for parties seeking to raise the issue of compliance with the Section 50.59-like change process.

However, this aspect of the rule will require that NRC be attentive to assuring that only -properly supported compliance contentions are subject to hearing, and that contentions regarding 50.59-like changes do not become an avenue for contesting the merits of the changes themselves.

However, at the public meeting on May 2, 1996, NRC's deputy general counsel, Martin Malsch, stated that the provision in Section 6(b)(3) of the rule may be in error, and that it may not be appropriate to give finality to 50.59-like changes. (Tr.

42-4 7 .) For the reasons discussed in our comments on the proposed rule and in Section II.A. I of the Statement of Considerations for the draft final rule, we believe that changes made under the Section 50.59-like process should have finality and protection under Section 52.63 against backfits. By definition, such changes do not adversely affect the safety of the standard design as approved by the NRC, and they are plainly within the envelope of the NRC's safety finding for design certification.

As such, they are entitled to finality and protection under Section 52.63 against backfits. At the public meeting of July 15, 1996, the Director of NRR, speaking for the NRC senior management committee on the design certification rules stated his support of this position as reflected in the draft final rules. (Tr. pp. 67-71.)

Therefore, the Commission should continue to include a provision in the rule which provides Section 52.63 backfit protection to Section 50.59-like changes.

D. A de novo review of the design is not required for design certification renewal In our comments on the proposed rules, the industry requested that matters resolved in the design certification rule have finality in all subsequent proceedings.

However, the draft final rules do not give finality to the DCD in design certification renewal proceedings, stating that it "would not be appropriate" to do so.

Furthermore, at the public meeting on May 2, 1996, the NRC staff stated that a de novo review of the standard design was envisioned at the design certification renewal stage. (Tr. 52-55.) For the following reasons, the Commission should modify the final rule to extend finality to design certification renewal proceedings.

To begin with, the requirement for a de novo review is contrary to the basic structure for design certification renewal in the Commission's regulations. Section 52.59 establishes a three tiered process for renewal depending upon the extent of changes from the originally certified design. Specifically, Section 52.59 states that the Commission shall issue a rule granting renewal if the design "complies with the Atomic Energy Act and the Commission's regulations applicable and in effect at the 4

time the certification was issued .... " When the standard design is unchanged from the time of design certification, a de novo review of the design is unnecessary at the time of renewal because the Commission has already determined, at the original certification stage, that the standard design provides adequate protection of public health and safety and complies with the Atomic Energy Act and the Commission regulations applicable and in effect at the time of certification - -

criteria that Section 52.63 makes applicable throughout the life of the design certification term. In other words, from both a regulatory and functional standpoint, the original design certification is in compliance with those criteria at the time of renewal.

Given the foregoing, there is no reason for the NRC to conduct a redundant de novo review at the design certification renewal stage. We would, moreover, underscore the fact that such a review would not only disregard the extensive safety reviews

• that undergird the original design certification, but would also impose an enormous, unwarranted cost burden on the renewal applicant- and, we would add, on NRC review resources - by making renewal tantamount to a wholly new certification. We believe, therefore, that the scope of the renewal review should be consistent with Sections 52.57 and 52.59 as well as the finality precept of Section 52.63(a). Specifically, the design certification rules, like Sections 52.57 and 52.59, should provide a review focus for renewal on:

• Updated data and information in the renewal application, as described below

• Modifications to the design certification, if any, proposed by the renewal applicant or by the NRC, consistent with the Part 52 requirements, as described below Updated data and information in the renewal application should consist only of an evaluation of experience between the time of certification and the renewal application. For example, Table 1.8-22 of Tier 2 of the DCD for the Advanced Boiling Water Reactor (ABWR) contains a list of relevant NRC Bulletins, Information Notices, etc. For a renewal application, it should only be necessary to update this table for the period after certification, together with an explanation of whether the new experience indicates a need for a change in the standard design in order to (1) provide adequate protection of the public health and safety, (2) ensure compliance with NRC regulations in effect at time of the original certification, or (3) provide a substantial, cost justified increase in safety per Section 52.59. NRC review of the renewal application should focus solely upon this updated data and information and any modifications proposed by the renewal applicant. Other information in the DCD need not be reviewed at the time of renewal because it is unaffected by the experience between the time of certification and renewal.

If modifications to the original certified design are proposed by the renewal applicant, Section 52.59 provides that the Commission "shall grant the amendment request if it determines that the amendment will comply with the Atomic Energy 5

Act and the Commission's regulations in effect at the time of renewal." Thus, if the applicant proposes changes in the DCD, all that is required is for the NRC to review the changes based upon the provisions of the Atomic Energy Act and the Commission's regulations in effect at the time of renewal. Accordingly, under the structure established in Section 52.59, the standard design has Section 52.63 finality at the time of design certification renewal, except to the extent that changes are proposed by the renewal applicant.

The fact that the unchanged standard design has finality would not preclude the NRC from imposing backfits that satisfy the criteria in Section 52.59. At the time of renewal, the NRC could impose a backfit under Section 52.59(a) to achieve a substantial, cost-justified increase in safety. Additionally, at any time during the life of the design certification, the NRC may, under Section 52.63, impose backfits necessary to assure adequate protection of the public health and safety or compliance with NRC regulations in effect at the time the standard design was originally certified.

Finally, if substantial changes in the design certification have been made such that the request for renewal essentially constitutes a request for approval of a new standard design, Section 52.59 states that "an application for a design certification shall be filed in accordance with Sections 52.45 and 52.4 7 of this part." Only in this later case would a de nova review of the design be appropriate.

Without the presence of substantial changes, a de nova review would be a wasteful expenditure of industry and NRC resources. A de nova review would also undermine the Part 52 goal of early resolution of licensing issues and a stable and predictable regulatory process. Furthermore, a de nova review at the time of design certification renewal would essentially transform the renewal process into a re-certification of the standard designs. Such a result would clearly be at odds with the Commission's purpose in establishing the renewal provisions of Section 52.59.

Therefore, the Commission should modify the statement of considerations accompanying the final rule and Section 6(b) to provide the DCD with finality in design certification renewal proceedings. The NRC should be allowed to impose backfits on the DCD at the time of renewal only by meeting the requirements in Section 52.63 or Section 52.59.

At the July 15 public meeting with senior NRC staff, the Director of NRR, William Russell, put forth the staff view that it was premature to define the scope of renewal review at this juncture and that this should be addressed on a later NRC rulemaking and/or future staff guidance document. It is noteworthy, however, that Mr. Russell expressed the view that "...if there is no adverse operating experience, and there are no significant changes to the rules and regulations, and the basis upon which you concluded it was acceptable is unchanged, there is no new information, then it should be a relatively straight forward review to accomplish."

(Tr. p. 53.)

The foregoing is consistent, in substance, with the renewal review criteria proposed above and compatible with the requirements now contained in Sections 52.57 and 6

52.59. Such framework review criteria can, and should, be set forth in the design certification rules to which they will apply. This would not obviate the desirability of future staff guidance documents addressing implementing details of the renewal application and review process.

Should the Commission decide, however, to defer addressing the matter of renewal review at this time, we urge that it do so on a basis, and with an explanation, that does not prejudice future consideration of the scope of issue finality in the renewal process.

E. Section 6(b) should be changed to reflect the staff's intent regarding finality in enforcement proceedings Section 6(b) of the draft final rule states that the DCD has finality in enforcement proceedings "where these proceedings reference this appendix." During the May 2, 1996, public meeting on the proposed final design certification rules, the industry questioned the meaning of the phrase "where these proceedings reference this appendix." In particular, the industry was concerned that this phrase could be construed as depriving finality to plants that reference the design certification rule in enforcement proceedings that do not explicitly reference the design certification rule. In response to industry's concern, NRC's deputy general counsel explained that the phrase was intended to limit finality of the information in the design certification rule to enforcement proceedings involving a plant referencing the rule, and that plants which do not reference the design certification rule would not be entitled to claim finality in enforcement proceedings. (Tr. 115.) The industry agrees with this clarification. Therefore, we ask that the Commission modify the last phrase of Section 6(b) to state "and enforcement proceedings involving plants that reference this appendix" to clarify the staffs intent, as shown in Table 1, below.

F. Section 6(b)(4) should be clarified regarding the finality of SAMDA evaluations Section 6(b)(4) accords finality for severe accident design alternatives (SAMDAs) for plants referencing this design certification rule "whose site parameters are within those specified in the Technical Support Document" (TSD). The industry is concerned that this last phrase could open all SAMDAs to re-review and re-litigation during a subsequent proceeding where the licensee has requested an exemption from a site parameter specified in the DCD, even though the exemption has no impact on the SAMDA. This issue was discussed during the May 2, 1996, workshop where the Office of General Counsel(OGC) staff agreed that it was not the NRC's intent to re-litigate SAMDA issues under such circumstances.

Specifically, Mr. Mizuno stated that it was the NRC's intent that an intervenor in any subsequent proceeding could challenge a SAMDA based on an exemption to a TSD site parameter only after bringing forward evidence showing that the SAMDA analysis was invalidated." (Tr. pp. 57-63.) The industry agrees with this 7

position and recommends that Section 6(b)(4) be clarified to state that SAMDAs will have finality in subsequent proceedings absent a showing by an intervenor that the exemption to a site parameter has an adverse impact on the SAMDA evaluation. In this regard the industry believes that it is important for the language of Section 6(b)(4) to be modified rather than merely providing a clarification in the Statements of Considerations, as shown in Table 1, below.

G. Section 8(b)(5)(vi) should be modified to clarify that a Section 50.59-like change is not subiect to hearing under Section 52.103 or Section 50.90 unless the change bears directly on an asserted ITAAC noncompliance or the requested amendment, respectively The draft final rule also states that the process in Section 8(b)(5)(vi) for challenging Section 50.59-like changes may be used in the pre-operational hearing under 10 CFR 52.103 and in other adjudicatory hearings. The types of changes subject to hearing after issuance of the combined license (COL) should be limited to conform to the requirements of Part 52 and the Energy Policy Act. Specifically, during the May 2, 1996, public meeting on the draft final design certification rules, the NRC's deputy general counsel stated that a Section 50.59-like change may not be subject to hearing under Section 52.103 unless the change bears directly on an asserted noncompliance with an ITAAC acceptance criterion. Similarly, he also stated that a Section 50.59-like change may not be subject to hearings on a license amendment unless the change bears directly on the amendment request (Tr. 48-49). The industry requests that the Commission modify Section 8(b)(5)(vi) of the final rules, as shown in Table 1, below, to reflect the stafrs intent as stated in the meeting.

H. Conclusion Finality is essential to the viability of design certification. The draft final rules would unduly limit the matters entitled to finality, and the Commission should make changes in the rules to ensure that the standard design will have finality in future proceedings. Changes receiving prior NRC approval should have protection under Section 52.63 from subsequent NRC backfits. Similarly, Tier 2 changes made under the Section 50.59-like process should also have finality under Section 52.63. Finally, a de novo review of the standard design should not be required for design certification renewal. Table 1 suggests language for the design certification rules to accomplish these objectives.

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TABLE 1 SUGGESTED RULE LANGUAGE FOR RESOLUTION OF FINALITY CONCERNS Section 6(b).

The Commission considers the following matters resolved within the meaning of 10 CFR 52.63(a)(4) in subsequent proceedings for issuance of a combined license, amendment of a combined license, renewal of a combined license, design certification renewal proceedings (as consistent with § 6(c) herein), proceedings held pursuant to 10 CFR 52.103, and enforcement proceedings v:hcrc these proceedings reference this appendix: involving plants that reference this appendix:

Section 6(b)(3).

Except as provided in Section 8(b)(5)(vi) of this Appendix, all departures from Tier 2 pursuant to and in compliance with the change processes in Section 8(b)(5) of this appendix that do not require prior NRG approval: All changes to Tier 1, Tier 2*

and Tier 2 made in accordance with the change process in Section 8.

Section 6(b)(4)

All environmental issues concerning severe accident design alternatives associated with the information in the NRC's final environmental assessment for the U.S. ABWR design and Revision 1 of the Technical Support Document for the U.S. ABWR, dated December 1994, for plants referencing this appendix whose site parameters arc within those specified in the Technical Support Document. If an exemption is sought from a site parameter in the Technical Support Document, a severe accident design alternative will continue to have finality in all subsequent proceedings absent a showing that the exemption has an adverse impact on the specific severe accident design alternative evaluation.

(new) Section 6(e)

An applicant for design certification renewal shall update the application for design certification. The update shall consist of an amendment of Table 1.8-22 of Tier 2 for the ABWR and Tables 1.8-2, 1.8-3 and 1.8-8 of Tier 2 for the System 80+ to identify relevant experience between the time of certification and the renewal application. For each relevant experience, the updated application shall explain whether the standard design adequately accounts for the new experience and, if not, whether the new experience indicates a need for a change in the standard design in order to (1) provide adequate protection of the public health and safety, (2) ensure compliance with NRC regulations in effect at the time of the original certification, or (3) provide a substantial, cost justified increase in safety under 10 CFR 52.59. The NRC review of the renewal application will be limited to the updated data and information and any modifications proposed by the renewal applicant.

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TABLE I (continued)

Section 8(b)(5)(vi)

A party to an adjudicatory proceeding for either the issuance, amendment, or renewal of a combined license or for operation under 10 CFR 52.103(a), who believes that an applicant or licensee has not complied with paragraph (b)(5) of this Section when departing from Tier 2 information, may petition to admit into the proceeding such a contention. In addition to compliance with the general requirements of 10 CFR 2.714(b)(2), the petition must demonstrate that the departure does not comply with paragraph (b)(5) of this Section. Further. the petition must demonstrate that the change bears on an asserted noncompliance with an ITAAC acceptance criterion in the case of a Section 52.103 preoperational hearing, or that the change bears directly on the amendment request in the case of hearings on a license amendment. Any other party may file a response thereto. If, on the basis of the petition and any response, the presiding officer determines that a sufficient showing has been made, the presiding officer shall certify the matter directly to the Commission for determination of the admissibility of the contention.

The Commission may admit such a contention if it determines the petition raises a genuine issue of material fact regarding compliance with paragraph (b)(5) of this Section.

Section 8(b)(6)(i) 2

- An applicant for a combined license may not depart from Tier 2* information, which is designated with italicized text or brackets and an asterisk in the generic DCD, without NRC approval. The departure will not be considered a resolved issue, within the meaning of Section 6 of this appendix and 10 GFR 52.63(a)(4).

2 Section VII of this attachment identifies additional suggested modifications to Section 8(b)(6) relating to the industry recommendation that Tier 2* designations expire at first full power.

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II. Finality for the Technical Specifications A. Introduction The Statements of Considerations for the proposed rules in SECY-96-077 reflect the industry comments that there should be one set of technical specifications subject to one change process. However, the draft final rule states that the technical specifications in the DCD will not have finality. For the following reasons, we believe the Commission should reject the approach proposed by the NRC staff and provide finality to the technical specifications in the DCD.

B. The standardized technical specifications in DCDs should remain part of the design certifications and be accorded finality because they have been reviewed and approved by the NRC The technical specifications in the DCD were the result of a long and laborious development process. The staff requested that the design certification applicants submit technical specifications as part of their applications. As a result, the design certification applicants expended a significant amount of time, energy and resources in preparing technical specifications for inclusion in the DCD. Significant resources were also expended by the industry and staff during the NRC review process. At the conclusion of this process, the NRC staff approved the technical specifications as part of the FSER and Final Design Approval (FDA). The staffs current proposal to declare that the standard technical specifications are not part of the DCD, or that they are merely "conceptual information," in order to deprive finality to those technical specifications, would nullify the substantial efforts already expended by both the industry and NRC.

C. Withholding finality from the Tier 2 technical specifications would be inconsistent with established Commission policy and the design certification goals of early issue resolution, standardization, and V licensing certainty

As discussed above, the technical specifications in the DCD have been reviewed and approved by the NRC through the FSER and FDA processes and have been subject to public comment as part of the Notice of Proposed Rulemaking (NOPR). If finality is not provided to the technical specifications in the DCD, they will be subject to re-review and re-litigation in every COL proceeding, even if the COL applicants make no changes in them.

This result is contrary to the purposes of Part 52. First, it is contrary to the goal of early resolution of licensing issues because it defers to the COL proceeding approval of those elements of the technical specifications that are generic elements associated with the standard designs. Second, it will result in a loss of standardization because the technical specifications for each standardized plant could be different as a result of the review and litigation process associated with 11

issuance of a COL. Finally, requiring that the technical specifications in the DCD, which have been approved as part of NRC staff's safety review of the designs, be subject to re-review and re-litigation at the COL stage is contrary to the Part 52 goals of issue finality and licensing stability.

During the public meeting on May 2, 1996, the NRC staff stated that it does not want to provide finality to the technical specifications because it wants to be able to impose changes to account for subsequent operating experience. (Tr. 30-34.)

However, the Commission has made the policy decision that matters approved during design certification should not be subject to re-review and re-litigation, unless the stringent criteria in Section 52.63 are satisfied. Specifically, the Commission stated in its February 15, 1991, SRM on SECY-90-377, The Commission agrees with the staff that the process provides issue finality on all information provided in the application that is reviewed and approved in the design certification rulemaking.

Thus, the staff's proposal to withhold finality from the approved technical specifications based on subsequent operating experience is contrary to Commission policy, as well as the goals of Part 52.

D. The staff's current proposal is inconsistent with previous NRC guidance In the past, both the NRC staff and the industry have agreed that the technical specifications should be part of the DCD and should have finality. In fact, the enclosure to the staff's August 26, 1993, letter to the design certification applicants stated that the technical specifications should be part of the DCD and should have finality. Further, this guidance identifies a number of concerns if the technical specifications were to be removed from the DCD. For example, in addition to expressing concerns regarding the possible loss of valuable insights gained during the design certification process, this guidance states:

The staff requires that the STS [standard technical specifications]

remain in Tier 2, because the STS are an integral part of the staff's review and approval process. Approval of the STS during the design certification affords a high degree of assurance that the as-built facility will be operated within the bounds of the SSAR.

Removal of the STS from Tier 2 may jeopardize the concept of issue preclusion since the STS would not be approved by the design certification rule. Even though plant-specific STS will be issued for the COL, the staff believes that retaining the STS within the DCD would prevent a de novo review of the SSAR used for the agency's safety finding. Review of STS changes from the STS approved in the 12

DCD by the rule would limit the scope of the review and expedite plant licensing.

Moreover, this position was reaffirmed in NRC guidance issued in August 1994.

Thus, the staff's proposal is contrary to its own implementation guidance - -

guidance that formed the basis for design certification interactions.

E. The industry has proposed a logical, effective process for giving technical specifications finality while ensuring a single document and change process A second reason expressed by the NRC staff at the public meeting on May 2, 1996, for proposing to deprive the technical specifications in the DCD of finality was to address the industry's comment that there should be a single set of technical specifications subject to a single change process. (Tr. 30-31.) However, in addressing this industry comment, the staff's proposal ignores the more fundamental industry recommendation that the technical specifications be accorded finality and unnecessarily undermines Commission policy concerning finality of design certification information.

Consistent with Commission policy and long-held understandings, NEI's August 4, 1995, comments on the NOPR proposed that the technical specifications in the DCD have finality and be used by a license applicant to develop a single, integrated set of technical specifications for submittal with license applications. This integrated set of technical specifications would include the technical specifications in Chapter 16 of Tier 2, including any proposed changes, and the supplementary site-specific technical specifications developed by the license applicant. To the extent the integrated technical specifications conform to those in the DCD, they would have finality and would not be subject to re-review or re-litigation. Thus, only proposed changes and the site-specific portion of the technical specifications would be subject to NRC review and a hearing as part of the COL proceeding.

After the license is granted, the technical specifications in the DCD would no longer have any relevance to the license, and there would be a single set of technical specifications that will be controlled by the Section 50.90 license amendment process and subject to the back.fit provisions in Section 50.109. Thus, the industry's proposal provides for finality of the approved technical specifications in the DCD and ensures creation of a single set of technical specifications subject to a single change process. This approach is consistent with the goals of early issue resolution, standardization, and licensing stability, and creates a workable product for use by licensees and the NRC during operation of a plant.

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F. July 15 Discussion with NRC senior management During the July 15, 1996, public meeting between the staff and the industry, there was considerable discussion of the staffs rationale for proposing a change to the long-held position on the finality of the standardized technical specifications. This section attempts to condense from the meeting transcript the rationale put forth by the staff and provide a response. As discussed below, because of the importance of consistently applying the principle of finality as established by Part 52 and the Commission, and in light of the availability of existing processes for reflecting future operating experience into ABWR and System 80+ standardized technical specifications, as appropriate, the design certification rules should accord finality to the Tier 2 technical specifications.

1. NRC: A single change process is necessary for all plant technical specifications.

Industry: We concur. Under the industry proposal, only one process will be in effect for all of the plant's technical specifications during the period of the COL.

2. NRC: The ability to reflect future operational experience in the technical specifications will not exist if the Tier 2 technical specifications are given finality via the design certification rules.

Industry: If an issue arises that calls into question adequate protection of public health and safety, the NRC may, indeed must, take appropriate action, including the imposition of technical specifications changes, if appropriate.

Further, giving finality to the DCD technical specifications does not preclude the NRC staff from seeking voluntary improvements by COL applicants and licensees. As noted by Mr. Russell, the NRC is working effectively with licensees today in exactly such a voluntary fashion to bring about technical specifications improvements within the Technical Specifications Improvement Program. Mr. Russell stressed that the NRC has not needed to impose technical specification changes on licensees. There is no reason to think such a voluntary process would not also be effective in the context of standardized AL WR technical specifications, and therefore, this is not a reason to withhold finality from the ABWR and System 80+ technical specifications. This notwithstanding, after the COL is issued, the backfit provisions of Section 50.109 are available to the NRC for imposing changes on ALWR technical specifications, as is the case today for currently operating plants.

3. NRC: Much effort has already been put into the Technical Specifications Improvement Program for current plants, and this program should be used for ALWRs.

Industry: Much effort was also put into the generic technical specifications for the ABWR and System 80+. Moreover, it should not be presumed that future improvements to standardized technical specifications for current plants will be 14

appropriate to incorporate into the standardized technical specifications for the ABWR and System 80+. The designs and safety margins of the advanced plants set them far apart from current plants such that it cannot be assumed that changes to those industry technical specifications should be automatically imposed on ALWRs.

4. NRC: The staff would impose current plant technical specification improvements only if they can be justified under Section 50.109.

Industry: The draft final rules have no such provision. The NRC staff would not be constrained by Section 50.109 in the context of an application for a COL.

The standardized technical specifications in the DCDs must not be open to re-review by the NRC staff at COL.

5. NRC: The bracketed information is not resolved, so there will be some level of technical specifications review at COL, anyway.

Industry: The bracketed items in the DCD technical specifications are information which is preliminary at the design certification stage for which finality is not being requested. This information will be subject to NRC review and public hearing at time of COL. The industry is not concerned that this information does not have finality because the designs upon which the preliminary information is based and the framework for these technical specification parameters are finalized. However, non-bracketed information was extensively reviewed and should be resolved with finality by these design certifications. *

6. NRC: The principal issue is the NRC desire to use the current plant process to incorporate those changes relating to operational matters (i.e., limiting conditions for operation, surveillance activity, frequency of surveillance, etc.).

The intent is that features of the standard design will not be backfit as a result of this process unless the criteria of Section 52.63 are met.

Industry: We appreciate that the staff does not intend to backfit the standard designs based on operating experience reviews related to technical specifications. However, as stated before, giving finality to the DCD technical specifications does not preclude the NRC from using its normal process for seeking technical specification upgrades. From the industry perspective, the principal issue is ensuring that the full benefits of design certification are achieved, consistent with Part 52 goals, Commission policy and previous understandings.

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7. NRC: The concept of using one set of technical specifications for the industry is important in the broader context of ensuring well understood and consistent regulatory requirements as it relates to conduct of inspection activities and other things.

Industry: What is important in achieving the objectives of Part 52 is that the principle of finality be consistently applied. Like all other matters in the DCDs, matters associated with the generic standardized technical specifications have already been resolved. If the COL applicant concurs that a change emanating from the Technical Specifications Improvement Program for current plants is applicable to the standard design and has overriding merit, the COL applicant/

holder may, under the industry proposal, amend its application/license to do so.

G. Conclusion Substantial effort was expended by the industry and the NRC staff in preparing and reviewing the ABWR and System 80+ standard technical specifications. As a result of this process, the technical specifications in the DCD were approved by the NRC staff as the appropriate technical specifications for these standard plants.

Depriving the technical specifications of finality is contrary to Commission policy and related NRC staff implementation guidance underlying the design certifications. Moreover the staff proposal is contrary to early resolution of licensing issues, standardization, and a stable and predictable regulatory process, objectives which are at the heart of Part 52. The process recommended by the industry ensures a single technical specifications document and change process for licensees and provides opportunity for upgrades to reflect operating experience, consistent with current practice for existing plants. Therefore, the Commission should modify Section 2(d)(l) and Section 3(e) of the rules to provide finality to the technical specifications in the DCD and should adopt the additional language proposed in NEI's comments of August 4, 1995 (repeated in Table 2, below).

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TABLE 2 SUGGESTED ADDITIONAL PROVISION FOR SECTION 2(d)(5) OF THE FINAL RULES TO CLARIFY THE STATUS OF THE PROPOSED TECHNICAL SPECIFICATIONS IN CHAPTER 16 OF TIER 2 Proposed technical specifications for the portion of the plant within the scope of the standard design. These proposed technical specification are applicable to an applicant for a combined license or operating license referencing this design certification rule, and shall be incorporated in the technical specifications in the license, except as changed pursuant to the provisions in Section 8 of this design certification rule that apply to changes to Tier 2 information. Changes in the proposed technical specifications by a license applicant are subject to NRC review and approval and a hearing as part of the license proceeding. After issuance of the combined license or operating license, the proposed technical specifications in Tier 2 have no further effect as to that licensee, and the technical specifications in the license become effective.

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III. Newly Proposed Section 4 Should be Substantially Revised, Including Deletion of the Proposed Additional Operational Requirements and Back:fit Provisions A. Introduction The draft final design certification rules contain a new Section 4, "Applications and Licenses Referencing This Design Certification: Additional Requirements and Restrictions." This new section includes a provision reserving NRC's right to impose backfits for operational issues, and three former "applicable regulations" pertaining to operational issues that have been redesignated as additional "operational requirements." As discussed below, these new additional requirements and restrictions are unnecessary and inappropriate for inclusion in these design certifications and should be deleted from the final rules.

B. The backfit provisions in Section 4(c) contradict 10 CFR 52.63 and are incompatible with the purpose of Part 52 Section 4(c) of the draft final design certification rules attached to SECY-96-077 states as follows:

Facility operation is not within the scope of this appendix, and the Commission reserves the right to impose requirements for facility operation on holders of licenses referencing this appendix by rule, regulation, order, or license condition.

The Statement of Considerations for the draft final rules states (p. 4 7) that this section may be used by the NRC to impose requirements for post-fuel load operational safety "for portions of the plant within the scope of this design certification, e.g., start-up and power ascension testing" (which is discussed in Chapter 14 of Tier 2 of the Design Control Documents (DCD)). Furthermore, SECY-96-077 states on page 3 that this section "preserves NRC's flexibility to backfit future rules on operational matters such as steam generator tube plugging criteria even though such rules may affect the design incidentally." Finally, in discussions with the industry, members of the NRC staff have stated that Section 4(c) is intended to allow the NRC staff to backfit standard design certifications without regard for the backfit protections of Section 52.63. As the staff recognized in SECY-96-077, Section 4(c) would leave "important safety issues unresolved and subject to future litigation and backfitting."

Section 4(c) contradicts 10 CFR 52.63 and is inconsistent with the purpose of Part 52 to the extent that it allows the NRC to impose backfits unrestricted by Section 52.63 with respect to matters resolved in the DCD. Section 4(c), as written, thus would defeat a principal aim of Part 52 - a stable and predictable licensing process. For these reasons, Section 4(c) should be clarified to state that it pertains to matters outside the scope of the standard design. To the extent the Commission 18

imposes new requirements that affect information in the design certification, the backfit restrictions in Section 52.63 and Section 8 of the rules should apply.

1. Proposed Section 4(c) is not needed to enable the NRC to impose operational requirements outside the scope of the DCD There are a number of operational-related matters that are outside the scope of the DCD. For example, Tier 2 of the ABWR and System 80+ DCDs identifies that the following matters are outside the scope of the DCD:

Section 13.1 - Organizational Structure Section 13.2 - Training of Plant Staff Section 13.3.2 - Emergency Planning Section 13.4 - Review and Audits Section 13.5 - Plant Procedures Section 13.6 - Security Plan Section 4(c) is unnecessary to the extent that it pertains to these and other operational issues that are outside the scope of the standard design. By definition, Section 52.63 and the change control process in Section 8 of the design certification rules only pertain to matters within the scope of the standard design. Thus, the NRC is not restricted by Section 52.63 and Section 8 from imposing new operational requirements on matters outside the scope of the standard design.

In this regard, there is a clear demarcation in the DCD between matters that are within the scope of the DCD and those matters that are outside the scope of the DCD. In preparing the Standard Safety Analysis Reports (SSARs) and the corresponding Tier 2 provisions, the design certification applicants followed the guidance for final safety analysis reports (FSARs) contained in Regulatory Guide

1. 70 and the Standard Review Plan (NUREG-0800). As a result, every issue that is required to be addressed in an FSAR either is addressed in the SSARs and Tier 2, or there is a statement in the appropriate location in the SSARs and Tier 2 that the matter is to be addressed by combined license (COL) applicants (such matters are called "COL Information Items"). A comprehensive listing of the COL Information Items is provided in Chapter 1 of the SSARs and Tier 2. Because these COL Information Items are the responsibility of the COL applicants, the NRC and COL applicant will determine appropriate requirements related to those items, consistent with NRC regulations, during the COL proceeding.

2. Contrary to Section 52.63, proposed Section 4(c) would enable back.fitting of operational-related requirements of the DCD The DCD contains numerous requirements governing a wide range of design-related matters that pertain to operation. For example, Tier 2 of the DCD has the following provisions:

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• Section 14.2 contains requirements governing start-up and power ascension testing

• The system descriptions for numerous systems contain requirements governing inservice inspection and testing

• Section 19Q.10 (ABWR) and Section 19.8 (System 80+) contain requirements governing shutdown conditions Each of these provisions was reviewed and approved by the NRC, and each of these provisions comes within the finality provisions in Section 6 of the design certification rule.

Per Part 52, these provisions are entitled to finality, including protection against backfits. As stated in the Statements of Consideration for Part 52, design certification is the key procedural device for achieving one of the primary goals of Part 52 - - namely, the early resolution of safety issues. To help accomplish this goal, 10 CFR 52.63(a)(l) and 52.63(a)(3) prohibit the NRC from imposing new requirements on a design certification or a plant referencing a design certification, except as necessary to bring the certification or the referencing plants into "compliance with the Commission's regulations applicable and in effect at the time the certification was issued, or to assure adequate protection of the public health and safety or the common defense and security." The provisions in Section 52.63(a) are implemented in Section 8 of the proposed rules, which prohibits the NRC from making generic or plant-specific changes in Tier 1 or Tier 2 of the DCD except in accordance with the requirements in Section 52.63(a). To allow the NRC to impose backfits on the DCD, for reasons other than adequate protection or compliance with NRC regulations, is wholly contrary to the finality provisions in Section 52.63.

3. Contrary to Section 52.63, proposed Section 4(c) would lessen restrictions on backfitting of design requirements of the DCD Equally, if not more troubling than the potential for unfettered backfits on operational-related requirements of the DCD, would be the use of proposed Section 4(c) to enable backfits, based on operational experience, of Tier 1 or Tier 2 design requirements. Because of the inherent connection between design provisions and plant operation, new operational issues or lessons learned from operating experience could be construed by the NRC staff as basis for Section 4(c) backfitting of most, if not all, of the design provisions in the DCD. For example, operational experience might be cited by the staff as the basis for imposing backfits related to component reliability, materials of construction, system configurations, etc., that are different from those specified in the DCD.

The possibility that an unrestricted backfit of the standard design certification - -

once cast as a lesson learned from operational experience - - could be imposed by the NRC is profoundly destabilizing and contrary to both the letter and spirit of Part 52. It would have the unmistakable effect of depriving the standard designs of finality and stability.

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This situation is all the more troubling because Section 4(c) contains no restrictions on backfits. In particular, in order to impose backfits under Section 4(c), the NRC need not demonstrate that the backfit is necessary for adequate protection or compliance with NRC regulations, nor is it even necessary for the NRC to demonstrate that the safety benefits of the backfit outweigh the costs. Instead, Section 4(c) would allow the NRC to impose backfits without making any showing whatsoever, other than connecting the backfit to an operational issue or operating experience. Thus, Section 4(c) provides less protection against backfits than is currently provided to Part 50 plants. Obviously, this situation would seriously threaten the viability of the design certification rules to potential future users.

At the July 15, 1996, public meeting, the staff stated that it was not the intent of Section 4(c) to provide for backfits on the design (Tr. pp. 38-39), but rather to reserve the ability to issue requirements for as yet unresolved operational issues. The industry appreciates this important clarification. However, as discussed above, the DCD contains numerous requirements governing a wide range of issues pertaining to plant operation. To the extent that these matters were reviewed, approved and incorporated into the DCD, they should be accorded backfit protection under Section 52.63.

4. Proposed Section 4(c) is contrary to clear Commission policy guidance Proposed Section 4(c) is contrary to clear Commission policy guidance provided in the February 15, 1991, SRM on SECY-90-377, The Commission agrees with the staff that the process provides issue finality on all information provided in the application that is reviewed and approved in the design certification rulemaking.

- As described in Sections 1 and 2, above, the finality and backfit protection provisions for the design certification were established by the Commission in Section 52.63. All of the information contained in the DCD has been reviewed and approved by the NRC staff and is resolved within the meaning of Section 52.63(a)(4) via the design certification rulemakings. The design certification rules should in no way diminish Section 52.63 protections for information contained in the DCD.

5. Summary In sum, Section 4(c) contradicts the provisions of Section 52.63 of the Commission's regulations. Further, it creates a means for uncontrolled and destabilizing backfits.

Therefore, to comply with the Commission's own regulations and to promote the stability and predictability of the design certifications (which is a primary goal of Part 52), this provision should be clarified. To the extent that the Commission imposes new requirements affecting information in the design certification, whether design or operational in nature, the back:6.t restrictions in Section 52.63 and Section 8 of the rule should apply. Suggested language for this clarification is provided in Table 3.

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C. The design certification rules should not be used to impose additional "operational requirements" Several of the additional "applicable regulations" in the April 1995 proposed design certification rules pertained to licensees' operational programs and did not address the specifics of the standard design. As a result, we requested in our comments on the proposed rules that these operational program requirements be deleted from the final rules. In meetings with the Commission on March 8, 1996, and with the industry on March 25, 1996, the NRC staff agreed that these operational-related "applicable regulations" should be deleted. However, in the draft final rules, the operational-related "applicable regulations" were not deleted. Instead, they were transferred to Section 4 of the rules and redesignated as "operational requirements."

As discussed in our comments on the proposed design certification rules, the industry strongly opposes the NRC sta:£:rs approach regarding additional "applicable regulations," including those redesignated as "operational requirements" in Section 4 of the draft final rules. We continue to oppose these operational requirements for the same reasons we oppose the additional "applicable regulations," as discussed in Section IV of this attachment. These reasons are summarized below.

First, there is no requirement in Part 52 which compels the Commission to adopt these additional operational requirements. To the contrary, 10 CFR 52.48 defines the applicable standards for design certification as the technically relevant standards in Parts 20, 50, 73, and 100, and Section 52.81 has similar provisions with respect to COL applications. Section 52.48 and Section 52.81 do not provide any authorization for the NRC to identify additional operational requirements and such identification is contrary to these sections.

Second, these operational requirements add a destabilizing layer of regulation above the operational requirements imposed by Part 50 on operating reactor licensees. Furthermore, these additional operational requirements are not necessary for the adequate protection of public health and safety or the common defense and security. Thus, there is no basis for imposing these requirements on plants that reference the design certifications.

Third, in our comments on the proposed rules, we expressed the concern that the broadly worded additional "applicable regulations" could be used by the staff to impose backfits on applicants and licensees that could not otherwise be justified on the basis of adequate protection of public health and safety. In response to this particular concern, the draft final rules include backfi.t protections for the "applicable regulations." However, by redesignating the operational "applicable regulations" as additional operational requirements (i.e., by moving them from Section 5 of the proposed rules to Section 4 of the draft final rules), the backfit protections for the additional "applicable regulations" included in the draft final rules would not apply to these operational requirements. Therefore, there is no protection against destabilizing compliance backfits with respect to these additional operational requirements.

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The potential for back.fits is all the more troublesome given that the NRC staff continues to use "broadly stated" language that is vague and subject to misinterpretation in drafting these operational requirements. Inclusion of such vaguely worded provisions makes them especially susceptible to future back.fits by the NRC staff. For example,

• The phrase "non-intrusive techniques available twelve months prior to the date ... "from Section 4(b)(l) fails to recognize that licensees are required to use techniques contained in an edition of the ASME Code that the NRC has endorsed. Furthermore, the proposed requirement is vague in the sense that inspection technologies are developed over a period of time as they transition through conceptual design, prototype development, commercial availability, qualification, and industry application. Thus, the precise time of availability is

- subject to varying interpretations.

• The Section 4(b)(2) requirement is vague and open-ended. The "features" included in the outage planning and control program and the method of "consideration" of fire, flood and other hazards during shutdown and low power operation are not defined and are subject to multiple interpretations.

Where needed to support the NRC staff's safety review of the designs, the DCDs contain specific requirements related to operational matters. With respect to pump and valve inservice inspection and testing programs, for example, licensees will implement the requirements of the ASME Boiler and Pressure Vessel Code, as endorsed by the NRC in 10 CFR 50.55a, as well as commitments such as "the use of advanced non-intrusive techniques to periodically assess degradation and performance characteristics of check valves." (Section 3.9.6.2.3.3 of the System 80+

DCD.) With respect to outage planning and control, licensees will implement various commitments such as technical specifications that address shutdown risk.

and COL action items that require applicants to "develop appropriate administrative controls, procedures and operator training for shutdown operations."

(COL Item 19.9 for the System 80+ and 19.11 for the ABWR.) Finally, the requirement for a design reliability assurance program exists already as a Tier 1 (ITAAC) commitment, and reliability assurance will be the subject of future rulemaking as directed by the Commission in the July 1994 Staff Requirements Memorandum on SECY-94-182, "Probabilistic Risk Assessment Beyond Design Certification."

However, unlike the specific operations-related requirements contained in the DCDs, the proposed additional requirements address operational programs.

Because plant operation is the responsibility of the COL applicant or licensee, not the design certification applicant, it is inappropriate to include provisions governing operational programs in the design certification rules. In this regard, the promulgation of these operational requirements is inconsistent with Section 4(c) of the design certification rules, which states that "facility operation is not within the scope of this appendix."

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As previously noted, the NRC staff stated in the public meeting on March 25, 1996, that they were prepared to delete operational-related "applicable regulations" from the design certification rules on the basis that these topics were beyond the scope of design certification and were therefore subject to later rulemaking. The staff's reasoning and proposal provide further indication that it is not necessary to include in the final design certification rules the operational program requirements in Sections 4(a) and 4(b), which correspond to the "applicable regulations" previously marked for deletion.

In sum, the industry strongly opposes the concept of additional operational requirements because they are beyond the scope of the design certifications and are equally, if not more, problematic than the proposed "applicable regulations" in terms of their destabilizing effect on the Part 52 process.

D. Section 4(d) should be revised to reflect the Part 52 provisions allowing reference to the design certifications in Part 50 proceedings At the May 2, 1996, public meeting, the NRC staff suggested that they were re-evaluating, and would reserve a decision, as to "whether" a design certification could be referenced in a Part 50 application for a construction permit or an operating license.

(Tr. at 72-81.) This staff position is reflected in Section 4(d) of the draft final rules which states the "Commission reserves the right to determine whether and in what manner this [design certification] appendix may be referenced by an applicant for a construction permit or operating license under Part 50." We are concerned because, as pointed out during the May 2 meeting, Part 52 does not raise any question whatsoever about "whether" a design certification may be referenced under Part 50. In fact, Part 52 explicitly provides, in Sections 52.55 and 52.63, that a certification may be referenced by construction permit and operating license applicants under Part 50.

Hence, the draft final rules are inconsistent with Part 52 and suggest a course that would unduly limit the usefulness of the design certification rules.

In its comments on the NOPRs for the design certification rules, the industry expressed its strong desire to retain the Part 50 licensing option as a fallback alternative in the event Part 52 proved difficult or impossible to implement. Moreover, industry stated its belief that the finality of the design could and should be preserved in a Part 50 licensing proceeding, and that adherence to ITAAC need not and should not be required under Part 50. (See NEI comments on the NOPRs at Section X.) With the draft final design certification rules, the staff appears to have gone backwards.

Specifically, Section 4(d) of the draft final rules states, "The Commission reserves the right to determine whether and in what manner this [design certification] appendix may be referenced by an applicant for a construction permit or operating license under Part 50."

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In the public meeting on May 2, 1996, the staff indicated a clear preference for prohibiting altogether an applicant's ability to utilize the design certification in a Part 50 proceeding. The industry sees no justification for this regressive approach, which would needlessly limit the usefulness of the design certifications. Furthermore, as stated above, such a prohibition would be inconsistent with the express language of Sections 52.55 and 52.63.

The industry requests that the Commission adopt the position that appeared to have been taken by NRC staff at the December 1995 public meeting, i.e., that determination of the treatment of Part 50 issues should be deferred to a later time, and that nothing should be done now in the design certification rules to preclude or expand upon Part 52's current provisions allowing Part 50 applicants and licensees to reference a design certification. At the public meeting on July 15, 1996, NRC senior management appeared to reaffirm this course. Accordingly, Section 4(d) should be revised as recommended in the appended rule language, or alternatively, such revised language should be set forth in the Statements of Consideration for the final design certification rules.

E. Conclusion Section 4 of the draft final rules should be substantially revised. Table 3 provides suggested language for Section 4 of the final design certification rules that addresses the following issues as discussed in this section:

• Section 4(c) contradicts Section 52.63 and is incompatible with Commission policy and the goals of Part 52 because it would allow the NRC to impose backfits on the DCD without demonstrating that the backfit is needed for adequate protection of safety or compliance with NRC regulations. As a result, Section 4(c) would subvert Section 52.63 and undermine achievement of the Part 52 objectives of issue finality and licensing stability. Thus the proposed Section 4(c) threatens the viability of the design certification rules and the Part 52 process, and it should be modified to allow only the imposition of new requirements that are outside the scope of the DCD, unless the backfit restrictions of Section 52.63 and Section 8 of the rules are met.

• The former "applicable regulations" pertaining to operational programs that have been relocated and recast as "additional operational requirements" are inappropriate to include in final design certification rules -- in any form.

Therefore, Section 4(b) and corresponding Sections 4(a)(2)(vii), (viii), (ix), and 4(a)(4) should be deleted.

• Section 4( d) should be modified to indicate that the Commission reserves the right to determine "in what manner" this Appendix may be referenced by a Part 50 applicant.

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Table 3 SUGGESTED LANGUAGE FOR SECTION 4 OF THE DESIGN CERTIFICATION RULES

4. Applications and licenses referencing this design certification: additional requirements and restrictions.

(a) An applicant for a combined license that wishes to reference this Appendix shall, in addition to complying with the requirements of 10 CFR 52. 77, 52. 78, and 52. 79, comply with the following requirements:

(1) Incorporate by reference, as part of its application, this appendix; (2) Include, as part of its application:

(i) A plant-specific DCD containing the same information and utilizing the same organization and numbering as the generic DCD for the [U.S. ABWR or System 80+] design, as modified and supplemented by the applicant's exemptions and departures; (ii) The reports on departures from and updates to the plant-specific DCD required by Section l0(b) of this Appendix; (iii) Technical specifications for the plant that are required by § 50.36 and § 50.36a; (iv) Information demonstrating compliance with the site parameters and interface requirements; (v) Information that addresses the COL Information Items, including justifications for any deviations from or omissions of the COL Information Items; and (vi) The information required by 10 CFR 52.47(a) that is not within the scope of this rule.

(3) Physically include, in the plant-specific DCD, the proprietary information and safeguards information referenced in the U.S. ABWR DCD; and (b) (not used.)

• (c) Facility operation is not within the scope of this appendix, and the Commission reserves the right to impose requirements for facility operation on holders of licenses referencing this appendix by rule, regulation, order, or license condition; provided, however, that to the extent the Commission imposes new requirements affecting information in the design certification, it must satisfy the requirements of 10 CFR Section 52.63 and Section 8 of the rule.

(d) The Commission reserves the right to determine in what manner this appendix may be referenced by an applicant for a construction permit or operating license under 10 CFR Part 50.

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IV. "Applicable Regulations" A. Introduction In SECY-90-016 and SECY-93-087, the NRC identified a number of positions on severe accidents and other technical issues that are not embodied in current NRC regulations in Part 50, and the staff applied these positions, as approved and modified by the Commission, during its review of the design certification applications. Notwithstanding that Part 50 does not require these features, the design certification applicants voluntarily agreed to include the features in their designs, and then demonstrated that their standard designs conformed with these positions. Despite this clear demonstration of conformance with these positions and the Commission's policies, the NRC staff has proposed to elevate these technical positions to the status of "applicable regulations" for the purpose of 10 CFR 52.48,

- 52.54, 52.59, and 52.63 and included them in the proposed rules.

In issuing the proposed rules, the Commission specifically requested comments on whether the additional "applicable regulations" should be adopted, in whole or in part, in the design certification rulemakings. The industry responded by stating its continuing strong opposition to including additional "applicable regulations" in the proposed rules. As discussed below, the staff:'s latest proposal does not resolve the industry's concerns, and we continue to strongly oppose the staff proposal to include these additional "applicable regulations" in the design certification rules.

B. The proposed new "applicable regulations" would constitute NRC regulation to the state-of-the-art of technology The NRC staff proposal goes beyond a question of technical preference in implementing the design certification rules. By elevating technical positions to the status of "applicable regulations," the NRC would essentially be regulating to the state-of-the-art in technology, a wholly new regulatory threshold. The advanced-design nuclear power plants are 10 to 100 times safer than today's safe nuclear plants. The NRC staff proposal would apply fluid new regulatory requirements to advanced-design plants that already far exceed the requirements of existing regulations and the Commission's safety goals. The establishment of another layer of NRC regulations - - the proposed additional "applicable regulations" - - can be and is being viewed as penalizing advanced plants for incorporating design features that enhance safety.

The NRC staff proposal to codify new "applicable regulations" would constitute an unsettling new regulatory paradigm which could impact other forms of NRC regulation, including the regulatory threshold for currently operating plants and might subject the NRC and current licensees to criticism that existing plants do not meet NRC regulations. The design certification rules should not be the occasion for fundamentally altering the direction and emphasis of NRC regulation through the codification of the proposed new "applicable regulations."

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C. "Applicable regulations" would be adverse to licensing stability and thus the viability of the Part 52 process

1. "Applicable regulations" would undermine explicit change process provisions established by the Commission in Section 52.63 The staff's proposal on "applicable regulations" is contrary to a principal purpose of Part 52 - - creation of a predictable, stable licensing process. In particular, the proposal creates the potential for backfits to be imposed on portions of the standard designs governed by the new "applicable regulations" to meet a subjective, new regulatory threshold - - "improved" protection of public health and safety. In so doing, the proposal would substantively modify explicit Part 52 change process provisions of Section 52.63 that were established and twice reaffirmed by the Commission. Section 52.63 precludes back:fits unless required to assure adequate protection of the public health and safety or compliance with NRC regulations. The proposed "applicable regulations" would fundamentally and adversely alter Part 52

- - and the viability of the Part 52 process itself - - after hundreds of millions of dollars have been invested by the industry and the Department of Energy.

2. It is unnecessary and inappropriate to include new "applicable regulations" in design certification rules We have previously emphasized the following points in our August 4, 1995, and March 5 and May 31, 1996, submittals to the Commission and during the Commission briefing of March 8, 1996.

• Part 52 does not require that additional "applicable regulations" be codified as part of the design certification rules. Indeed Section 52.48 defines the applicable standards for design certification as the technically relevant standards in Parts 20, 50, 73 and 100. As examined thoroughly by EPRI in their May 1, 1996, letter to the Commission and Section F below, we believe that it has not been the Commission intent to codify agency technical positions as new "applicable regulations" in the design certification rules.

• "Applicable regulations" are not required to assure adequate protection of the public health and safety; they do not improve the safety of the standard designs; and they are not necessary to meet the Commission's objective that future plants achieve a higher level of safety. Indeed, there is agreement that the requirements of the ABWR and System 80+ DCDs satisfy all of the technical positions that the staff has proposed be codified as "applicable regulations" and that these designs are 10-100 times safer than today's safe nuclear plants.

The proposed "applicable regulations" may be and are being viewed as a penalty on future owner/operators who will consider utilizing the Part 52 process to build advanced-design plants.

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• "Applicable regulations" are not needed to control changes by an applicant or a licensee. The NRC's technical positions are implemented principally through Tier 1 requirements, which are subject to the most stringent change controls under Part 52. Each is also addressed by more detailed Tier 2 requirements, which are also subject to stringent change controls that preclude potential for adverse effect on the safety of the design.

• Codifying "applicable regulations" is not necessary to provide a basis for evaluating future changes. As expressed by Commission Rogers at the March 8 Commission briefing, the development of, and bases for, the NRC's technical positions that are proposed as "applicable regulations" have been the subject of numerous SECYs, SRMs and public meetings of the NRC staff, ACRS and Commission. The ultimate implementation of the technical positions is described in the ABWR and System 80+ FSERs and DCDs. This extensive information provides a detailed public record of the NRC staff's review and approval of specific design requirements related to satisfying each of the technical positions in question. As noted by Commissioner Rogers, this body of information will provide the basis for the NRC to evaluate the acceptability of proposed design changes, just as this information provided the basis for the staff to determine the original acceptability of the designs in the FSERs. We also agree with Commissioner Rogers' comments to the effect that establishing new regulations corresponding to specific design certification requirements, e.g.,

severe accident features, is unnecessary and inappropriate as a means to control operational practices of licensees.

• The NRC staff proposal would establish the first-ever severe accident regulations, contrary to existing Commission policy and practice on severe accidents and safety goals.

• The NRC staff stated in SECY-96-028 that their concern was with the potential identification of significant new information. For plants licensed under Part 52 as well as Part 50, if significant new information is identified that calls into question the adequate protection of the public health and safety, the NRC has the authority to impose a backfit or other corrective action, as appropriate.

Beyond that, the Commission structured the Part 52 provisions on certification renewal rulemaking to provide opportunity for the NRC staff to impose additional cost-justified requirements that may result from the identification of significant new information. Except at the time of design certification renewal, Part 52 expressly prohibits imposition of backfits, except to assure adequate protection of the public health and safety or compliance with NRC regulations.

In sum, the industry strongly believes that the inclusion of these additional "applicable regulations" in the design certification rules is unnecessary, destabilizing, and contrary to existing l~w and regulations.

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D. The wording of the additional "applicable regulations" is vague and inconsistent with previous Commission directions We have evaluated the wording of each of the proposed additional "applicable regulations" and concluded that the additional "applicable regulations" are vague and, in some cases, inconsistent with previous Commission directions. Some of the language in the additional "applicable regulations" is so vague that it borders on the incomprehensible. For example:

• Section 5(c)(8) requires design features to ensure that environmental conditions during severe accidents do not exceed containment limits for a time "sufficient to mitigate them in view of their probability of occurrence and the uncertainties in severe accident progression and phenomenology." This provision is so vague that it could mean almost anything. Additionally, it is completely subjective and

- provides no meaningful criteria for what is acceptable.

• Section 5(c)(13) states that the standard design must include an assessment of "features that mitigate vulnerabilities resulting from other design features."

This provision is so vague that it, too, could mean almost anything. Like Section 5(c)(8), it provides no meaningful criteria for what is acceptable.

• Sections 5(c)(6) and 5(c)(12) contain provisions that are more restrictive than those approved by the Commission in its Staff Requirements Memorandum (SRM) dated June 26, 1990, on SECY-90-016. In particular, Section 5(c)(6) does not include the Commission-approved allowance for "unique design layout" in judging the adequacy of fire protection features, and Section 5(c)(12) only allows for one of the two alternatives approved by the Commission concerning containment performance.

In short, despite all the attention given to "applicable regulations," there does not appear to be an appreciation on the part of the NRC staff of their possible ramifications. The additional "applicable regulations" continue to be problematic as is evident from their vague and subjective wording and the other, more fundamental concerns identified herein. a clear red flag with respect to the proposal to include them in the design certification rules.

E. The "applicable regulations" for operational issues should be deleted from the rule In our comments on the proposed design certification rules, we noted that some of the additional "applicable regulations" pertained to operational issues and did not address the standard design, and requested that these requirements be deleted from the final rule. However, in the draft final rules, these additional "applicable regulations" were not deleted. Instead, they were transferred to Section 4 of the rule. Although our comments on these operational requirements are provided in more detail in Section III.D, we note here that these requirements should be deleted entirely from the final rule - - i.e., they are not appropriate as "applicable 30

regulations" in Section 5 of the rule, as "operational requirements" in Section 4 of the rule or as provisions in Tier 1 of the DCD. Furthermore, by moving these "applicable regulations" to Section 4, the NRC staff would exempt them from the backfit protections of Section 8(c).

F. The NRC staff proposal is contrary to the purpose of the design certifications and Commission policy guidance In the Commission briefing of March 8, 1996, and again in a letter of July 2, 1996, to NEI President Joe F. Colvin, Chairman Jackson indicated the Commission's sensitivity to the historical record concerning applicable regulations, and the Commission's commitment to "pay particular attention to the positions and guidance previously enunciated by the Commission." For that reason, the industry has done a particularly thorough review of the history of the Commission's treatment of the applicable regulations issue, and we continue to believe the NRC staffs proposal is contrary to previous Commission policy guidance and intent with respect to the design certifications. Much of this history is reflected in the May 1, 1996, EPRI letter to NRC previously mentioned, as well as our August 4, 1995, and March 5 and May 31, 1996, submittals to the NRC. Additional historical information is provided below.

1. What was the Commission's original intent regarding "applicable regulations?"

Section 52.48, Standards for Review of Applications, specifies that design certification applications will be "reviewed for compliance with the standards set out in 10 CFR Part 20, Part 50 and its appendices, and Parts 73 and 100 as they apply to applications for construction permits and operating licenses for nuclear power plants, and as those standards are technically relevant ...." Additionally, Section 52.63 (a)(3) states that the NRC may not impose new requirements unless necessary "to secure compliance with the Commission's regulations applicable and in effect at the time the certification was issued, or to assure adequate protection of the public health and safety ... "

In addition, as noted in SECY-96-028, the Statements of Consideration accompanying Part 52 state that new safety standards may be required to address new design features and directed the staff to advise the Commission of the need for new criteria for judging the safety of designs offered for certification that are different or supplementary to current standards." However, we believe if one looks at the rest of the relevant excerpt from the Statements of Consideration, it is clear that the Commission did not have in mind the codification of new standards (i.e.,

"applicable regulations") within individual design certifications. Specifically, the Statements of Consideration continued:

The Commission shall consider the NRC staffs views and determine whether additional rulemaking is needed or appropriate to resolve generic questions that are applicable to multiple designs. The objective of such a rulemaking would be to incorporate any new standards in Part 50 31

or Part 100, as appropriate, rather than develop such standards in the context of the review and approval of individual design certifications. On the other hand, new design features that are unique to a particular design would be addressed in the context of a rulemaking proceeding for that particular design (emphasis added).

The context for this SOC guidance was in response to the NRC staff proposal in SECY-89-036 that the design certification rules be the occasion for setting new standards for the advanced designs. Based on these SOC, the Commission clearly did not intend for the design certifications to serve this purpose. Indeed, the term "applicable regulations" was not in use when Part 52 was issued. Rather, it was coined later by the NRC staff in SECY-92-287. Moreover, the staffs full intent with respect to "applicable regulations" was not apparent until the staff responded to questions from Commissioner Curtiss via SECY-92-287Ain March 1993.

Section 5(c) of the draft final design certification rules states, "in addition to the regulations specified in paragraph (a) of this section, the following regulations are applicable for purposes of 10 CFR 52.48, 52.54, 52.59 and 52.63:" Thus it appears that the NRC staff created the term and approach of "applicable regulations" as a legal artifice to elevate selected NRC positions to the status of NRC regulations "applicable and in effect" for the design certification rules. Part of the staffs stated purpose for doing so is to enable future backfits to these new "applicable regulations" to "reinstate the level of safety originally intended." To enable such backfits, the staff is effectively proposing to lessen the backfit protections established by the Commission in Section 52.63, as discussed above in Section IV.C.1.

We do not believe the Commission intended for NRC technical positions to be codified as "applicable regulations" via the design certification rules, nor do we believe the Commission intended that the NRC staff would dictate a lessening of the backfit protections that the Commission deliberately established in Section 52.63 - - and twice reaffirmed in SRMs on SECY-90-377 (February 1991) and SECY-92-287/287A (July 1993).

2. What was intended by the Commission guidance that technical and severe accident issues be resolved via design-specific rulemakings through the design certifications?

As noted in SECY-96-028, the Commission stated in their SRM on SECY-90-016, "where the staff proposed requirements depart from current regulations, consideration should be given to incorporating these requirements into the regulations." In their May 27, 1990, SRM following a staff briefing on SECY-90-016, the Commission requested a paper from the staff detailing the advantages and disadvantages of generic rulemaking to codify these new requirements in parallel with reviewing the specific designs. The staff provided this analysis in SECY-91-262 which concluded that generic rulemaking was not preferred. In their SRM of January 28, 1992, the Commission approved the staff recommendation "to proceed with design-specific rulemakings through individual design certifications to 32

resolve selected technical and severe accident issues for the ABWR and System 80+

designs."

In establishing NRC technical positions via SRMs on SECY-90-016 and SECY-93-087, the Commission was clearly approving guidance for use in staff reviews of design certification applications. SECY-92-287 aptly describes the approach taken based on the Commission's guidance in their SRM on SECY-91-262:

Since agency positions ..... were identified and incorporated into the designs during the staffs design review based on Commission guidance rather than specific regulations, the certification rule will approve the resolutions for the specific designs. These resolutions will be incorporated into the DCD by the applicant for design certification. The agency positions will be explicitly specified in the form of design-specific requirements in the NRC staffs FSER and any supplements thereto.

The explicit documentation of these agency positions will provide a clear regulatory basis for these issues, as well as any additional issues that may be incorporated during the certification rulemaking.

Thus, it is clear that the Commission intended the resolutions of the NRC's positions to be codified in the DCD, not that the positions themselves be codified in the design certification rules.

For all the reasons and complications described in our written and oral comments to the Commission, and in light of the history on this issue and the purpose of design certification, we strongly disagree with the additional step proposed by the NRC staff of codifying these agency positions as "applicable regulations" in design certification rules. We do not believe that the Commission guidance in the noted SRMs, or other SRMs, provided approval, either explicitly or implicitly, for this additional step.

G. The NRC staffs latest proposal does not resolve the concerns associated with "applicable regulations" We recognize that the NRC staff has included some wording changes in the draft final rules as well as protections against backfits to "applicable regulations" in an effort to reduce the additional licensing risk associated with the codification of new "applicable regulations." However, the staffs latest proposal does not succeed in resolving the industry's basic concerns, and, in any event, does not alter that "applicable regulations" are unnecessary for purposes of design certification and would represent (1) a source of inherent licensing uncertainty and instability - -

contrary to a central objective of Part 52, and (2) a troubling new regulatory paradigm that is beyond the realm of adequate protection of public health and safety and for which the full implications cannot be foreseen. These effects may be and are being perceived by some in the utility industry, financial markets and the public as putting nuclear power at a competitive disadvantage relative to other forms of new baseload generation.

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H. Conclusion The proposed codification of agency technical positions as "applicable regulations" would create a new paradigm of regulations that goes well beyond what is necessary for adequate protection of the public health and safety. As discussed above and in various prior submittals to and briefings of the Commission, such codification is not necessary and would introduce substantial uncertainty in the Part 52 licensing process. We strongly urge the Commission to reject the proposal to include the proposed new "applicable regulations" in the design certification rules in any form (e.g., Section 5, Section 4, or the DCD). In making its policy determination on this matter, we further ask that the Commission specify that substantive reconsideration of the Final Safety Evaluation Reports 3 , Design Control Documents, or other rule provisions is not required to compensate for the elimination of "applicable regulations" from the rules.

3 It is recognized that a Commission decision to reject the staff's proposal to incorporate additional "applicable regulations" in the design certification rules will require specific editorial deletions to be made in the FSERs.

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V. Application of the Section 50.59-like Change Process to Chapter 19 Information A. Introduction Plants licensed under Part 50 are required to have safety analysis reports (SARs) that include evaluations of design basis accidents (DBAs). However, SARs are not required to evaluate severe accidents and other conditions that are beyond the design basis. Pursuant to 10 CFR 50.59, plants licensed under Part 50 are allowed to make changes in their SARs without prior NRC approval unless such changes involve an unreviewed safety question (USQ). Under Section 50.59, a change constitutes a USQ ifit causes an increase in probability or consequences of an accident evaluated in the SAR.

Unlike SARs for Part 50 plants, the DCDs for the ABWR and System 80+ contain evaluations of severe accidents and other conditions that are beyond the design basis.

These evaluations are contained in Chapter 19 of Tier 2 of the DCDs. Section 8(b)(5) in the proposed rules identified a change process with respect to Chapter 19 that is similar to the change process in 10 CFR 50.59, i.e., any increase in the probability or consequences of an accident evaluated in Chapter 19 was defined as a USQ. Section 8(b)(5)(iii) of the proposed rules contained only one narrow exception -it stated that changes involving the deterministic severe accident evaluations in Section 19E (and associated appendices) of Tier 2 for the ABWR and in Section 19.11 (and associated appendices) of Tier 2 for the System 80+ would constitute a USQ only if there is a "substantial increase" in the probability or consequences of the severe accidents evaluated in those sections.

In our August 1995 comments on the proposed rules, we made the following recommendations concerning Section 8(b)(5):

• It is inappropriate to apply the "50.59-like" change process to all of the evaluations in Chapter 19. Rather, the change process with respect to severe accidents should consider only the important features discussed in Section 19.8 for the ABWR and Section 19.15 for the System 80+. (See NEI's NOPR Comments, pp. 67-75.)

• If the Commission rejects the first recommendation, the industry recommended that, at a minimum, the severe accident change process, including appropriate criteria for determining unreviewed safety questions, be applied to all of Chapter 19, not just those evaluations in Section 19E for the ABWR and Section 19.11 for the System 80+. (See NEI's NOPR Comments, pp. 76-78)

The Statement of Considerations for the draft final rules explicitly rejected the industry's primary recommendation to provide an appropriate scope for the consideration of Chapter 19 information in the 50.59-like process. In addition, the Statement of Considerations ignored our comment concerning the appropriate criteria for determining USQs. Rather, the draft final rules apply the Section 8(b)(5)(iii) USQ criteria to Section 19E for the ABWR and 19.11 for the System 80+, and the Section 8(b)(5)(ii)

USQ criteria to the rest of Tier 2, including the remainder of Chapter 19.

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The industry continues to believe that the draft final rules' provisions concerning the scope and criteria for application of the 50.59-like process to Chapter 19 information are inappropriate. As discussed in our August 1995 comments (Attachment B, pp. 67-75), it is inappropriate to apply the "50.59-like" change process to all of the evaluations in Chapter 19. Rather, we continue to believe the change process with respect to severe accidents should be focused on the important features discussed in Section 19.8 for the ABWR and Section 19.15 for the System 80+. These sections contain the more significant insights, design features, and other results from the probabilistic and deterministic analyses of Chapter 19 concerning beyond design basis accidents and conditions. We recognize that the NRC staff has expressed reservations about restricting the scope of Chapter 19 consideration to a single section of that chapter. If the Commission does not adopt the industry recommendation to provide a focus for the "50.59-like" process on the more important features and evaluations within Chapter 19, the Commission should apply the criteria in Section 8(b)(5)(iii) to all of Chapter 19, as discussed below.

B. If the Commission decides not to restrict application of the 50.59-like process to Section 19.8 for the ABWR or Section 19.15 for the System 80+, then the Commission should apply the criteria of Section 8(b)(5)(iii) to all of Chapter 19.

1. In addition to Section 19E for the ABWR and Section 19.11 for the System 80+,

the other sections in Chapter 19 contain evaluations of severe accidents and other beyond-design basis conditions The staff has previously stated that it desires to apply Section 8(b)(5)(iii) of the rule to only Section 19E for the ABWR and Section 19.11 for the System 80+ because, according to the staff, these are the only sections in Chapter 19 that contain evaluations of severe accidents. However, the staffs characterization of Chapter 19 is in error. The whole of Chapter 19 evaluates severe accidents and other conditions that are beyond the design basis. For example, with respect to Chapter 19 of Tier 2 for the ABWR:

• Section 19F discusses the containment's ultimate strength, i.e., its ability to withstand events beyond the design basis.

• Sections 19H and 191 provide seismic capacity analyses and seismic margins analyses, i.e., the ability of components to withstand seismic events that are more severe than the safe shutdown earthquake.

• Sections 19L and 19Q contain shutdown risk evaluations and assessments.

• Section 19M contains probabilistic risk assessments for fire protection

• Section 19R contains probabilistic risk assessments for flooding.

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None of these sections contains evaluations of DBAs, and none of the evaluations in these sections are similar to those contained in SARs for Part 50 plants and subject to Section 50.59. In fact, SARs for Part 50 plants do not even contain a Chapter 19.

Given that Chapter 19 does not contain evaluations of DBAs, it should not be subject to the same change process that is applicable to DBAs. Instead, the severe accident change process proposed by Section 8(b)(5)(iii) of the draft final rules should be applied for all Chapter 19-related changes considered under the "50.59-like" process.

The staff stated in the public meeting on December 4, 1995, that it is not necessary to apply Section 8(b)(5)(iii) to all of Chapter 19, because numerical probabilities have been removed from this chapter. However, the absence of such probabilities does not, in and of itself, resolve the industry's concerns. In particular, a licensee is not relieved of the obligation of performing a safety evaluation of a change involving a Chapter 19 accident evaluation merely because the evaluation does not identify a probability for the accident. For example, the evaluations of DBAs in Chapters 6 and 15 for Part 50 plants do not contain numerical probabilities, yet Part 50 licensees are routinely required to determine whether a change involving such accidents would result in an increase in the probability of the accident.

Similarly, even though numerical probabilities have been removed from the beyond-design basis evaluations in Chapter 19, applicants and licensees would still be required under the staff's proposal to evaluate whether there has been any increase in the probability of these accidents.

The staff stated in the public meeting on May 2, 1996, that Section 8(b)(5)(iii) should not apply to all of Chapter 19 because only the severe accident evaluations in Section 19E for the ABWR and Section 19.11 for the System 80+ are subject to substantial uncertainties. (Tr. 23-23, 27.) It should be noted that, in general, all Chapter 19 evaluations, not just those in the Sections cited by the staff, are subject to substantial uncertainties reflecting the best estimate" analytical methodologies applied to beyond-design basis evaluations.

However, the primary reason it is appropriate to apply different change process criteria for severe accidents is not the uncertainties associated with severe accidents. Rather, it is due to the fact that small increases in the probability or consequences of severe accidents or other beyond-design basis conditions evaluated in Chapter 19 would not impact the NRC's findings regarding the safety of the standard design. It is primarily for this reason that all "50.59-like" safety evaluations concerning Chapter 19 information should be subject to the "substantial increase" standard.

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2. The staff's proposal would impose undue burdens on both the industry and the NRC with no corresponding safety benefit If a change involves a USQ, the applicant or licensee must seek prior NRC approval for the change, and the change must be the subject of an opportunity for public hearing. These requirements impose substantial burdens on both the NRC and the industry. Such burdens should be imposed only for changes that truly affect safety.

However, under proposed Section 8(b)(5)(ii), prior NRC approval and opportunity for hearings would be required for changes in Chapter 19 that have no effect on safety. This is because Chapter 19 evaluates accidents that have an extremely low probability of occurrence, and using the criteria of Section 8(b)(5)(ii) as proposed by the staff, any increase in these small probabilities would constitute a USQ and therefore would require prior NRC approval and an opportunity for hearing.

For example, Section 19R.5.3 of Tier 2 of the DCD for the ABWR contains a probabilistic risk assessment of a flood originating in the Turbine Building and its impact on core damage frequency. As this evaluation indicates, if the truck entrance door for the Turbine Building does not leak and relieve the flood waters, and if a number of other highly improbable events beyond the design basis were to occur, there is a risk of core damage. However, as discussed in Section 19R.5.3 of the Standard Safety Analysis Report (SSAR) for the ABWR, the probability of core damage from a flood in the Turbine Building is minuscule, i.e., on the order of 10*9 per year. If a licensee were to change its Turbine Building truck door and purchase a stronger door that allowed less or zero leakage, this core damage frequency would increase by about 10%. Such an increase would be trivial and would not affect any conclusions in either the DCD or the FSER. Nevertheless, under the staff's proposal, this increase would constitute a USQ and require prior NRC approval and an opportunity for public hearing. This example demonstrates that the staff's position is burdensome and has no compensating benefits to safety.

Chapter 19 contains numerous other examples of evaluations of extremely low probability events. There is no benefit to safety, and great burdens on the industry and NRC, in defining small increases in the probability or consequences of these events as unreviewed safety questions. To prevent such a result, the Commission should modify Section 8(b)(5) of the rules so that the USQ criteria of Section 8(b)(5)(iii) apply to all of Chapter 19.

C. The draft final rules are inconsistent with the resolution of this issue proposed by NRC senior management On several occasions, the industry has expressed these same concerns to senior NRC management. In November 1994, NRC senior management proposed rule language that addressed the industry concern about the need for special change process criteria for "50.59-like" safety evaluations concerning Chapter 19 information. However, neither last year's proposed rules, nor the current draft final rules, has reflected the common understandings that were reached in this regard between the industry and NRC senior management.

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For example, in a meeting with the Director of the Office of Nuclear Reactor Regulation (NRR), Bill Russell, on November 2, 1994, General Electric representatives stated that the evaluations in Chapter 19 of Tier 2 should not be subject to the change process applicable to DBAs, because it would result in minor increases in the probabilities of beyond-design basis accidents evaluated in Chapter 19 being classified as USQs. Mr. Russell agreed, and directed that a change involving Chapter 19 be classified as an USQ only if there is a "substantial increase" in probability or consequences of the accidents evaluated in Chapter 19.

As a result of this direction, the following provision was included in Section 3.8 of the DCD Introduction for the ABWR (Emphasis added):

Various deterministic and probabilistic evaluations of severe accidents for the ABWR standard design are included in Chapter 19 of Tier 2. With respect to these evaluations only, a proposed change, test, or experiment shall be deemed to involve an unreviewed safety question if, as a result of the change:

(a) there is a substantial increase in the probability of a severe accident evaluated in Chapter 19 such that a particular severe accident previously reviewed and determined to be not credible could become credible, or (b) there is a substantial increase in the consequences to the public of a severe accident previously evaluated in Chapter 19.

When the proposed design certification rules did not incorporate this approved language, the industry again raised concerns in its written comments and at the NRC public meeting on December 4, 1995. At the meeting, Mr. Russell again concurred with the language that had been prepared for the DCD Introductions (Tr. pp. 111-112), and restated the intent to distinguish between application of the change process to classic DBAs versus applying it to information related to severe accidents in Chapter 19.

Despite the apparent common understanding dating from 1994 concerning the need for special change process criteria for Chapter 19 evaluations, most of Chapter 19 would not be governed by the "substantial increase" standard under proposed Section 8(b)(5) of the draft final rules.

D. NRC senior management proposal at the July 15, 1996, public meeting During the July 15, 1996, public meeting, the industry once again expressed concerns regarding the application of the Section 8(b)(5)(ii) USQ criteria to the severe accident and beyond design basis information throughout Chapter 19. As before, the industry and Mr. Russell agreed in principle that the intent of the change process is to evaluate a change in terms of its effect on design basis information against the "any increase" 39

USQ criteria in Section 8(b)(5)(ii) while evaluating its affect on severe accident or beyond design basis accident information against the "substantial increase" USQ criteria in Section 8(b)(5)(iii). (Tr. pp. 83, 86-88).

In this respect, the point of contention has always been the staff's characterization of the information in Chapter 19. Specifically, some staff reviewers have previously asserted that Section 19E for the ABWR and Section 19.11 for the System 80+ are the only sections in Chapter 19 that contain evaluations of severe accidents and beyond design basis accidents. To the contrary, we agree with Mr. Russell that these sections do not contain a complete list of the severe accident and beyond design basis accident analyses contained in Chapter 19. (Tr. p. 85). Rather, in general, all Chapter 19 evaluations contain severe accident analyses and beyond design basis accident analyses. Thus, application of the Section 8(b)(5)(ii) criteria to these other Chapter 19 analyses is inconsistent with the intent of the NRC and the industry in creating a special standard for evaluating changes in severe accidents and other beyond design basis conditions.

Based on the above considerations, the industry in its comments has requested the Commission not to apply the Section 8(b)(5)(ii) USQ ( any increase) criteria to Chapter 19. Rather, consistent with the intent of the change process, the industry has urged the Commission to apply the Section 8(b)(5)(iii) USQ (substantial increase) criteria to all of Chapter 19.

During the public meeting, Mr. Russell and Mr. Malsch appeared to accept the industry position (Tr. pp. 83-85) but expressed that there might be design basis information in Chapter 19, and that it would be inappropriate to apply the Section 8(b)(5)(iii) heightened standard "to something that's within the design basis that just happens to be discussed in Chapter 19." As discussed below, because of the way the DCD is structured, the industry's proposal to apply the Section 8(b)(5)(iii) criteria to all of Chapter 19 would not cause such a result.

First, a proposed change would be evaluated against both design basis and beyond design basis accident analyses. Chapter 19 was specifically developed as a repository for severe accident and beyond design basis accident evaluations. Thus while Chapter 19 may include information that is also included in other chapters of the DCD, this "design basis" information was included in Chapter 19 as background to support the severe accident and beyond design basis accident analyses, not to document the design basis of plant structures systems and components. Thus the actual "design basis" information for these structures, systems and components is contained in other chapters of the DCD. For example, Chapter 19 contains analyses of beyond design basis floods and fires. However, the "design basis" analyses for floods and fires are contained in Chapters 3 and 9. Therefore, under the industry's proposal to apply the Section 8(b)(5)(iii) (substantial increase) USQ standard to all of Chapter 19, the effect of a proposed change on the design basis analyses, such as the fire or flooding accident analyses in Chapters 3 and 9, would still be evaluated using the traditional standard embodied in Section 8(b)(5)(ii). As a separate matter, its effect on severe accident or beyond design basis accident information (Chapter 19) would be evaluated against the "substantial increase" USQ criteria in Section 8(b)(5)(iii).

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E. Conclusion As currently written, Section 8(b)(5)(iii) of the rule would require wasteful evaluation of Chapter 19 information that is of little or no safety significance and would result in USQs being identified based on trivial increases in the probability or consequences of the accidents evaluated in Chapter 19. This result is inappropriate, would impose undue burdens on the NRC and licensees, and is contrary to previous agreements reached with senior NRC management.

Accordingly, and consistent with the intent ofNRC senior management expressed at the public meeting of July 15, 1996, we recommended the Commission adopt the approach described above. Suggested wording to accomplish this result is provided in Table 4.

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TABLE4 SUGGESTED RULE LANGUAGE ON CHAPTER 19 CONSIDERATION IN THE 50.59-LIKE CHANGE PROCESS Section 8(b)(5)(ii) A proposed departure from Tier 2, except as to its effect on the resolution of a severe accident or beyond design basis accident issue identified in Chapter 19 of the plant-specific DCD, shall be deemed to involve an unreviewed safety question if:

(A) The probability of occurrence or the consequences of an accident or malfunction of equipment important to safety previously evaluated in the plant-specific DCD may be increased; (B) A possibility for an accident or malfunction of a different type than any evaluated previously in the plant-specific DCD may be created; or (C) The margin of safety as defined in the basis for any technical specification is reduced.

Section 8(b)(5)(iii) A proposed departure from Tier 2 affecting resolution of a severe accident or beyond design basis accident issue identified in Chapter 19 of the plant-specific DCD involves an unreviewed safety question if:

(A) There is a substantial increase in the probability of a severe accident or beyond design basis accident such that a particular severe accident or beyond design basis accident previously reviewed and determined to be not credible could become credible; or (B) There is a substantial increase in the consequences to the public of a particular severe accident or beyond design basis accident previously reviewed.

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VI. The Rules Should Incorporate All Substantive Provisions of the DCD Introduction A. Introduction In responding to the Notice of Proposed Rulemakings on the design certifications for ABWR and System 80+, the industry recommended that each of the substantive provisions contained in the DCD Introductions should be incorporated into the design certification rules, and without modification.

The industry's position was based on the fact that in 1994 both the NRR and OGC staff had approved the text of the DCD Introductions word-for-word, that the contents of the DCD Introductions were essential for implementation of the rules, and that inconsistencies between the Statements of Consideration and the DCD Introductions would lead to confusion and uncertainty, detracting from the goals of Part 52.

In SECY 96-077, the staff agreed with industry that the substantive provisions of the DCD Introductions should be incorporated into the final rules, stating at p. 37 that the staff's draft final rule:

has adopted NEI's ... suggestion of incorporating substantive procedural and administrative requirements [from the DCD Introductions] into the design certification rule; and It is the Commission's view that the substantive procedural and administrative provisions described in the DCD Introduction should be included in, and be an integrated part of, the design certification rule which is published in the Federal Register and codified in the Code of Federal Regulations.

Sections 2, 4, 6, 8, and 10 [of the proposed final rule] have been revised and Section 9 of this Appendix was created to adopt appropriate provisions from the DCD Introduction.

Nevertheless, NRC staff incorporation of DCD Introduction provisions was not done without modification. The NRC staff stated in the Statements of Consideration for the draft final rules:

In some cases, the wording of these provisions has been modified to conform with the final design certification rule.

In other cases, the staff omitted substantive provisions in their entirety from the rules.

• For the reasons discussed below, the industry urges the Commission to incorporate all of the substantive provisions from the DCD Introduction into the final rule, using the language in the DCD Introduction previously approved by the NRC staff in 1994.

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B. The NRC staffs incorporation of substantive provisions was incomplete Although the SOC for the draft final rules state that the substantive provisions of the DCD Introductions should be incorporated into the final rules, there are at least six instances where such incorporation was not accomplished. Specifically:

1. The definition of Tier 1 material excludes a provision from the DCD Introductions stating that "the design descriptions, interface requirements, and site parameters are derived from Tier 2 information."

2. The definitions of Tier 1 material and Tier 2 material exclude statements from the DCD Introductions that "compliance with the more detailed Tier 2 material provides a sufficient method, but not the only acceptable method, for complying with the more general provisions in Tier 1." Also excluded is a statement that "compliance with Tier 2 is a sufficient, but not necessarily the only, method for complying with theITAAC."

3. The definition of Tier 2 material excludes a statement from the DCD Introductions that COL Information Items do not establish requirements, rather, they identify an acceptable set of information, but not the only acceptable set of information, for inclusion in a plant-specific SAR. An applicant may deviate from or omit these COL Information Items; provided, however, that the deviation or omission is identified and justified in the plant-specific SAR. Further, the DCD Introductions specify that, "after issuance of a construction permit or license, the COL Information Items have no further effect to that licensee; instead the corresponding provisions in the plant-specific SAR are applicable."

4. The definition of Tier 2 material excludes a statement from the DCD Introductions that references to the standard safety analysis report "shall not be construed as incorporating these actions, or the information therein, in Tier 2."

5. The definition of Tier 1 material excludes a DCD Introduction provision that design activities outside the scope of the standard design may be performed using site-specific design parameters.

6. The draft final rule language on ITAAC excludes a provision from the DCD Introductions that "after NRC has issued its finding in accordance with 10 CFR 52.103(g), the ITAAC do not, by virtue of their inclusion in the DCD, constitute requirements for the COL holder or for renewals of the COL."

Each of these specific instances was discussed with staff at the May 2, 1996, public meeting on the proposed final rules and is further discussed below.

Omission No. 1. With reference to No. 1 above, the staff took the position that "we felt [the omitted provision] wasn't necessary for the rule. That goes without saying."

(Tr. at p. 83.) The industry asked if there was a reason why the omitted statement 44

could not go into the rule. Mr. Malsch of OGC responded, It doesn't make any difference to me." (Tr. at 83-84.)

We believe that the omitted statement is important and should be included in the rule language. The statement that design descriptions, interface requirements, and site parameters are derived from Tier 2 information - although perhaps obvious to those who have been deeply immersed in design certification activities for the past several years - may not be obvious to future litigants challenging NRC's or a COL applicant's or holder's interpretation of or compliance with Tier 1 provisions. Having such a statement in the rule affords a COL applicant or license holder the opportunity to base Tier 1 compliance on substantially more detailed corresponding Tier 2 information.

The fact that the omitted statement is "not necessary" does not make it undesirable to the industry and to future NRC staff. Since no legal objection has been raised to inclusion of this desired and agreed-upon text in the rule, industry requests that the

- Commission include the omitted text in the final rules.

Omission No. 2. Again, the staff explained that the omission was made because the two provisions in question (i.e., that Tier 2 compliance provides a sufficient, but not necessarily the only acceptable, method of compliance with Tier 1 and ITAAC) were "not necessary." (Tr. at 84.) Mr. Malsch of OGC expressed an additional concern that saying Tier 2 was "sufficient but not necessary could lead to an implication that Tier 1 could be referenced without also referencing Tier 2. (Tr. at 84-85.) Mr. Malsch stated that "we didn't want to render the whole change process inapplicable by that language standing by itself." Id.

In subsequent discussion between Mr. Malsch and the industry, it appeared that the omitted text could be reworded to preserve the concept that, although Tier 2 must be referenced when referencing Tier 1, Tier 2 may be changed using the applicable change process and still produce compliance with corresponding provisions in Tier 1. Specifically, Mr. Malsch stated that OGC would reexamine the wording of the omitted text and consider whether a revised provision could be included in the rule. (Tr. at 86-87.)

We suggest that the following reworded provision be included in the final rule's definition of Tier 1 material:

Compliance with the more detailed Tier 2 material provides a sufficient, but not the only acceptable, method for complying with the more general provisions in Tier 1 (including the ITAAC). Compliance methods differing from Tier 2 material must satisfy the change process provisions specified in Section 8(b), and such differences shall not negate a COL applicant's or holder's general requirement to reference Tier 2 when referencing Tier 1.

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Omission No. 3. The DCD Introduction's provision that the COL Information Items do not constitute requirements and that, after issuance of a construction permit or COL, the COL Information Items have no further effect, was again explained by staff as being "unnecessary" given the draft final rule's explanation that COL License Items were informational requirements only. (Tr. at 87.) The industry explained that deletion of the DCD Introduction's provision could be construed, notwithstanding explanations in the SOC, as meaning that a COL applicant must submit to NRC all the information identified as COL Information Items despite an agreement with staff more than a year ago that such information was not necessarily required in all cases to be submitted to NRC. (Tr. at 87-91.) Hence, industry reiterated its desire that the omitted text be included in the rules. The staff maintained that its position had not in fact changed, but that, given the explanation in the SOC, the omitted text was unnecessary for inclusion in the final rule. (Tr. at 90-91.) Mr. Mizuno of OGC voiced an additional concern that the DCD Introduction's phrase, "instead, the corresponding provisions in the plant-specific SAR are applicable," does not appear to follow from the preceding phrase concerning COL License Information items. (Tr. at 88-89.)

To address the concerns expressed by the industry, we propose that the provision from the DCD Introduction on COL Information Items be added to the design certification rules. To address Mr. Mizuno's concern, the industry would have no objection if the last sentence of this provision were modified to state as follows:

After issuance of a construction permit or COL, the COL

• Information Items are not requirements for the COL holder unless such items are restated in the plant-specific SAR.

Omission No. 4. Staff omitted a DCD Introduction provision stating that secondary references to the SSARs should not be construed as incorporating SSAR material into the DCD. At the May 2, 1996, public meeting, staff explained that it believed this provision was confusing in light of the explanation in the SOC that secondary references were requirements if their context so suggested. (Tr. at 91-96.) The industry responded that SSAR references were in fact a special category of secondary references that, in many cases, were intended simply to conform the format and sections of the DCD with the SSAR. (Tr. at 94.) The applicants were requested by staff to go back to their DCDs to review SSAR references to identify more precisely their context. (Tr. at 96.) That review has been completed and, based on such review, it is industry's belief that a rule provision clarifying that SSAR references are not intended to be incorporated by reference -- unless otherwise specifically provided in the rule, i.e.,

references to proprietary and safeguards information, which the context indicates are to be treated as requirements -- would be helpful to future applicants and would avoid unnecessary confusion. Therefore, we strongly urge the Commission to incorporate the omitted text in the rules. In the alternative, references to the SSAR other than to proprietary and safeguards information requirements should be deleted from the DCDs.

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Omission No. 5. The NRC staff omitted from the definition of Tier 1 material a statement that design activities outside the scope of the standard design may be performed using site-specific (as opposed to standard, rule-imposed) parameters. Mi.

l\tlizuno of OGC explained that the provision was omitted because it was "not necessary." (Tr. at 98.) He also expressed concern that ifNRC does not have a technical basis for review of an activity, then the activity should not be addressed in the design certification. Id.

However, the industry remains concerned that there be no uncertainty that NRC may not, and has no intention to, regulate activities - using the design certification - that are in fact outside the scope of the standard design addressed by the certification. For example, a COL applicant should not be bound by the design certification in designing site-specific aspects of the ultimate heat sink.

Thus, we strongly urge the Commission to place in the rules the DCD Introduction provision identifying that activities outside the scope of the standard design may be performed using site-specific parameters.

Omission No. 6. The NRC staff omitted a key and previously agreed upon provision of the DCD Introduction stating that, after NRC's 10 CFR 52.103(g) finding, the ITAAC do not constitute requirements for the COL holder or for renewals of the COL. Staffs position at the May 2, 1996, public meeting was that this issue is adequately addressed in Section 9(b)(3) of the proposed final rules. (Tr. at pp.98-100.) Mi. l\tlizuno of OGC nevertheless stated that he agreed with industry that indeed "ITAAC as a general matter do not constitute requirements on the COL holder." (Tr. at p. 100.)

However, industry pointed out that, in fact, Section 9(b)(3) differs significantly from the corresponding provision in the DCD Introductions. Section 9(b)(3) addresses only "subsequent plant modifications" and does not address other types of instances not related to "subsequent plant modifications" where ITAAC could potentially be construed as imposing requirements on a COL holder without a definitive statement to the contrary. (Tr. at 99-103.) In particular, industry cited specific examples of age-related (but appropriate) noncompliance (see Tr. at 102-103.), enforcement issues, and license amendments where, although no "modifications" occurred, a COL holder could under some circumstances be construed as being in noncompliance with an ITAAC.

To remove this potential, we strongly urge the Commission to adopt the language jointly agreed among the industry, NRR staff, and OGC staff in formulating the DCD Introductions, which is simply that ITAAC do not constitute regulatory requirements for COL holders or for renewals of a COL.

C. July 15 public meeting discussion The subject of incorporation of the DCD Introduction was again raised by industry in the public meeting of July 15, 1996. Due to a lack of time, the individual omissions listed above were not each addressed. However, Mi. Malsch of NRC stated, in referring 47

to industry's comments on the omissions: "Yes, I thought some of your suggestions here were helpful and took care of some of the problems." (Tr. at p. 109.) Mr. Russell of NRC, in responding to the industry's specific comments on the omissions, stated, "ifit doesn't conflict with the rule, and it's consistent with the process as we implemented it, then I don't have a problem with putting it in and giving it some specific words and look at those specific words and see whether that accommodates." (Tr. at p. 106.) In light of Mr. Malsch's and Mr. Russell's statements, the Commission should incorporate the omitted substantive DCD provisions into the final rule as requested.

On the particular DCD Introduction topic of the post-COL status ofITAAC, Mr. Russell appeared to agree with the industry's position that ITAAC should have no regulatory status upon receiving authorization to operate at full power. (Tr. pp. 106-109.) The one exception he noted is where a challenger had raised an ITAAC claim prior to fuel load, and such claim was still undergoing determinative proceedings at the time of full power operation. Mr. Russell emphasized that it was necessary to continue the regulatory status of the ITAAC after the Commission makes their Section 52.103(g) finding until completion of any administrative proceeding under 52.103(a). The industry agrees with this exception.

Although Mr. Russell characterized the ITAAC issue as one simply in need of "clarification," (Tr. at p. 108), the industry believes it is vital to incorporate the substantive understanding concerning ITAAC expiration into the body of the final rule.

Therefore, Table 5 presents industry's proposal for incorporating this substantive provision into the rule, together with the exception noted by Mr. Russell.

D. Conclusion

- The industry and NRC staff appear to agree on the fundamental premise that the substantive provisions of the DCD Introductions which previously were agreed to by the NRC (including OGC) staff should be incorporated into the body of the final design certification rules. In the few cases where such incorporation was not accomplished or was accomplished with modification, we have stated both a desire and a need for the original DCD Introduction provisions to be incorporated into the final rules. Where the staff raised legitimate concerns about the language of the DCD Introduction provisions that were not incorporated, we have responded to those concerns with proposed modifications of the language of the respective provisions. In the case of the status of ITAAC, after the Commission's Section 52.103(g) finding, the industry and NRC senior management appear to agree on the approach to resolving NRC's specific concerns.

Thus, this appears to be an area where NRR staff, OGC staff, and the industry seem to have reached common ground. We therefore continue to request that the substantive provisions of the DCD Introductions be incorporated into the body of the final design certification rules without modification, except as otherwise stated above (where modifications are appropriate to accommodate NRC staff concerns).

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Table 5 SUGGESTED RULE LANGUAGE FOR SECTION 9(B)(3)

Section 9(b)(3) - After the Commission has made the finding required by 10 CFR 52.103(g), ITAAC no longer constitute regulatory requirements; provided, that as regards to specific ITAAC which are the subject of a Section 103(a) hearing, their expiration shall occur upon final Commission action in such proceeding. However, subsequent modifications must comply with Tier 1 and Tier 2 design descriptions in the plant-specific DCD unless the licensee has complied with the applicable requirements of Section 8 of this appendix.

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VII. All Tier 2* Restrictions Should Expire at First Full Power A. Introduction Information designated Tier 2* in the DCDs may not be changed without prior NRC approval. For ABB-CE's System 80+ certified design, Section 8(b)(6)(ii) of the draft final rule includes the following four matters under Tier 2* for a holder of a combined license:

Equipment seismic qualification methods; Piping design acceptance criteria; Fuel burn-up limit; and Control room human factors performance.

For GE's ABWR certified design, Section 8(b)(6)(ii) of the draft final rule includes the following six matters under Tier 2* for the holder of a combined license:

Equipment seismic qualification methods; Piping design acceptance criteria; Fuel burn-up limit; Fuel licensing acceptance criteria; Control rod licensing acceptance criteria; and Human factors engineering design and implementation process.

Unlike all other Tier 2* information that reverts to Tier 2 after first full power, NRC staff would extend the Tier 2* change restrictions for these matters throughout the life of the plant. The Tier 2* concept represents an accommodation between the industry and the NRC staff that facilitated completion of design certification safety reviews. Nonetheless, it must be recognized that Tier 2*

represents an unfortunate complication of the design certifications, albeit, perhaps, a necessary one. There is simply no need to extend the Tier 2* designation past first full power. Certainly, the staff has not provided adequate rationale for proposing to do so that justifies perpetuating for licensees the additional complexity in the Section 8 change process due to the presence of Tier 2* information in the DCDs. As described below, unbounded Tier 2* change restrictions are unnecessary and inappropriate, and Section 8(b)(6) should be modified for the final rules such that all Tier 2* restrictions expire at first full power.

Compounding the industry concern for Tier 2* restrictions that do not expire at first full power is the related NRC staff proposal that all Tier 2* changes would require license amendments and would be subject to hearing opportunity - - even if the change does not involve a USQ. As described in Section X. C of this attachment, the Commission should adopt final rule provisions that provide a hearing opportunity only for Tier 2* changes determined to involve a USQ.

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B. The NRC staff's rationale for continuing Tier 2* change restrictions after first full power fails to explain the significance associated with the extension In the industry comments on the notice of proposed rulemaking, it was noted that all Ti.er 2* change restrictions should expire at first full power and the Tier 2*

information identified in the respective DCD Introductions should revert to the controls associated with Ti.er 2 information. The comments reasoned that the Ti.er 2* change restrictions pertained to detailed design methodologies for areas in which detailed design information was not developed for design certification (due to the lack of as-procured and as-built data or rapidly changing technology). However, by the time of first full power, the detailed design will have been fully developed in accordance with the Ti.er 2* provisions. Hence, the Ti.er 2* change restrictions will have served their purpose and should expire. This conclusion remains valid notwithstanding statements contained in SECY-96-077.

In SECY-96-077's proposed SOC, NRC staff provided its rationale for continuing the Ti.er 2* change restrictions after first full power:

The NRC staff determined that some of the Ti.er 2* information could expire when the plant first achieves full (100%) power, after the finding required by 10 CFR 52.103(g), while other Ti.er 2*

information must remain in effect throughout the life of the plant that references this rule. The determining factors were the Ti.er 1 information that would govern these areas after first full power and the NRC staff's judgment on whether prior approval was required before implementation of the change due to the significance of the information.

SECY-96-077, Att. 1, at 11 (ABWR), and Att. 5, at 11 (System 80+). However, for each of the items identified in the draft final rules as subject to the continued restrictions, the proposed SOC fail to adequately explain the significance of the item that warrants the extension of the Tier 2* restrictions.

1. Equipment seismic qualification methods In the proposed SOC accompanying the draft final rules, the staff resolved the discrepancy between the Ti.er 2* expiration dates for the System 80+ and ABWR certified designs by imposing the change restrictions on both.

One area of Ti.er 2* information that had different expiration dates was equipment seismic qualification methods. The NRC has determined that, due to its significance, changes to the qualification methodology must be approved before implementation. Therefore, the Ti.er 2* designation for this information will not expire for either design.

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SECY-96-077, Att. 1, at 11 (ABWR), and Att. 5, at 11 (System 80+). NRC Staff offered no other explanation for its decision. Staff also provided no discussion of the significance of this issue.

2. Piping design acceptance criteria The proposed SOC accompanying the draft final rules failed to address comments filed by ABB-CE regarding why the Tier 2* change restrictions for piping design acceptance criteria can expire at first full power. ABB-CE pointed out that significant design changes in this area are not expected in light of the efficiencies associated with maintaining and operating a standardized plant. Moreover, past experience reveals that even if such changes are identified, in all likelihood the change would present an unreviewed safety question for which prior NRC review and approval would be required anyway.

ABB-CE provided NRC with an example of how Tier 2* treatment of piping design acceptance criteria after first full power could preclude subsequent minor design changes.

3. Fuel burn-up limit The proposed SOC accompanying the draft final rules summarize recent staff concerns regarding extended fuel burn-up in reactor cores at current generation nuclear plants. While recognizing that joint NRC-industry efforts are underway to better assess the performance of high burn-up fuel, the proposed SOC also note that there are no immediate safety issues and that there is no need for additional industry actions at this time. Where changes are requested to current generation technical specifications, prior NRC review and approval of the change is required anyway.

Unfortunately, the NRC staff appears poised to force an as-yet-undefined solution for its still-evolving concerns in this area on the design of evolutionary plants by maintaining the Tier 2* change restrictions after first full power for the fuel burn-up limit. As illustrated by staff:'s involvement in this area for current generation plants, there is no need to maintain the restriction in order to participate in future changes involving the fuel design of ABB-CE's System 80+ or GE's ABWR. The staff:'s involvement in approving changes to the technical specifications is the same for current generation plants as it is envisioned in this draft final rule for both advanced plants. The staff retains the ability to impose adequate protection backfits under Section 52.63 and Section 8 of the rules. Finally, the continuation of Tier 2* change restrictions for the fuel burn-up limit does nothing to identify staff:'s concern or the solution to the concern, but rather serves only to involve staff in the resolution of the issue -- which clearly is already occurring notwithstanding a Tier 2*-like restriction for current generation licensees. Therefore, staff has failed to articulate a significant reason for requiring the Tier 2* change restrictions to continue after first full power.

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4. Control room human factors engineering and human factors engineering design and implementation The proposed SOC accompanying the draft final rules failed to address comments filed by ABB-CE regarding why the Tier 2* change restrictions for control room human factors engineering can expire at first full power. In its comments on the notice of proposed rulemaking, ABB-CE explained how continuation of the restriction would impair licensing stability without an identifiable safety benefit.

In addition, ABB-CE indicated by example how the restriction could actually impede design changes intended to improve plant safety and performance. With the protections available in Tier 2 and the normal inspection and enforcement process, as well as other motivations for maintaining a standard plant, it was also noted that sufficient controls on changes exist.

C. CONCLUSION In sum, the NRC staff has failed to articulate a significant reason for continuing the Tier 2* change restrictions for equipment seismic qualification methods, piping design acceptance criteria, fuel burn-up limit, fuel licensing acceptance criteria, control rod licensing acceptance criteria, human factors engineering design and implementation process, and control room human factors engineering. In light of the fact that after first full power, control of changes to formerly Tier 2* information will be consistent with normal Tier 2 requirements, there is no need for Tier 2*

restrictions to continue. Furthermore, the NRC staff proposal would unjustifiably perpetuate for licensees the additional complexity in the change process caused by Tier 2* material in the DCDs.

Combined with the related draft final rule provision requiring that all Tier 2*

changes be subject to hearing opportunity even if no USQ is involved (as discussed in Section X.C of this attachment), unbounded Tier 2* restrictions represent an onerous, life-long burden on licensees. Accordingly, Section 8(b)(6) of the draft final rules should be modified as suggested in Table 6 such that all Tier 2*

restrictions expire at first full power.

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Table 6 SUGGESTED RULE LANGUAGE FOR SECTION 8(b)(6) 8(b)(6)(i) An applicant or holder of a combined license may not, before first full power, depart from Tier 2* information, which is designated with italicized text or brackets and an asterisk in the generic DCD, without NRC approval. After the plant first achieves full power, the Tier 2* designations expire and have no further effect as to that licensee. The departure will not be considered a resolved issue, within the meaning of Section 6 of this appendix and 10 CFR 52.63(a)(4).

(ii) A departure from Tier 2* information that does not involve an unreviewed safety question as defined in paragraph (b)(5) of this section does not require an exemption from this appendix.

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VIII. NRC ITAAC Verification A. Introduction In a Commission briefing on March 8, 1996, the NRC staff stated their agreement with the industry view of ITAAC verification, as clarified in NEI's March 5 response to SECY-96-028. Specifically, there is agreement that in making its ITAAC determinations, it is appropriate for the NRC to consider QA/QC deficiencies that are relevant and material to determining that an ITAAC has been successfully completed. Based on this understanding, the staff stated their intent to add recommended language to the proposed design certification rules clarifying the nature of NRC ITAAC verification. We appreciate the staffs recognition of the importance of this issue and incorporation in the draft rules of appropriate ITAAC verification language. However, as discussed below, we believe certain statements in the Statements of Consideration (SOC) detract from the clarity and intent of the additional rule provision as a guide for future licensees and NRC staff, while other SOC discussion is beyond the scope of this issue and the design certification rules.

B. The Statements of Consideration be clarified to ensure they reinforce and focus on the ITAAC verification provision The last paragraph of the SOC Response states, "the Commission concludes that information such as QA/QC deficiencies, which are relevant and material to ITAAC may be considered by the NRC in determining whether the ITAAC have been successfully completed." As stated above, we agree with this conclusion.

Accordingly, we recommend deletion or modification of statements that are inconsistent with or obscure the important common understanding in this area.

For example, we recommend the deletion of the following two sentences and deletion or modification of the third:

1. "The NRC disagrees with any assertion that QA/QC deficiencies have no relevance to [NRC ITAAC determinations]."

2. "To argue that consideration of underlying information that is relevant and material to determining whether ITAAC have been successfully completed ignores the history ofITAAC development."

3. "Despite this conclusion, the Commission has decided to add a provision to Section 9(b) ...." (emphasis added)

In addition, we recommend the last sentence of the SOC Response be deleted and the next-to-last sentence be modified as follows: "This provision, which is fully consistent with 10 CFR 52.99 and 52.103(g), requires the NRC .... " This change is appropriate for two reasons. First, the last sentence is confusing in that the staff does not, as indicated, describe in the SOC the manner in which the NRC intends to 55

implement 10 CFR 52.99 and 52.103(g), including the sign-as-you-go and pre-operational finding processes, associated Federal Register notices, etc. And second, the implementation of these Part 52, Subpart C, provisions is beyond the scope of the DCRs and the respective SOC.

C. Discussion of anticipated quality requirements for licensee ITAAC activities is not germane to NRC ITAAC verification and should be deleted from the SOC The third paragraph of the SOC Response addressed quality requirements for ITAAC activities and contained the following sentence:

Quality assurance deficiencies ... would be assessed for their impact on the performance of the ITAAC, based on their safety significance to the system.

In the May 2, 1996, public meeting on the draft rules, the NRC staff reiterated that QA/QC deficiencies that are relevant and material to determining that an ITAAC has been successfully completed could be considered by the NRC in making ITAAC determinations. The staff clarified (Tr. at p. 65) that the third paragraph of the SOC Response was not intended to suggest a third criterion (in addition to relevance and materiality) related to quality requirements or safety significance.

Indeed, the question of whether a deficiency may be relevant and material to an ITAAC determination, and therefore considered in by the NRC in making ITAAC determinations, does not depend on whether the deficient licensee process/activity was safety-related (i.e., performed under Part 50, Appendix B, requirements).

Therefore, the discussion of anticipated quality requirements for licensee ITAAC activities is not germane to the nature of NRC ITAAC verification. Accordingly, to avoid confusion on the basic point that only matters relevant and material to ITAAC determinations may be considered by the NRC, we recommend the third paragraph of the SOC Response be deleted.

D. SOC discussion of licensee documentation and submittals regarding ITAAC verification is beyond the scope of the certifications and should be deleted We appreciate that the NRC staff recognizes the importance of the additional ITAAC implementation topics discussed under the SOC headings, "Licensee Documentation of ITAAC Verification," "NRC Inspection," and "Facility ITAAC Verification." And we appreciate the staff's openness in sharing their current thinking on these matters at the May 2 public meeting and in SECY-96-077.

However, because these matters are beyond the scope of the certifications, were not raised in the proposed rules or formal comments thereon, and involve issues that have not been fully aired, we recommend discussion of these topics be deleted from the SOC.

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Rather, we believe it would be more appropriate to ensure that current staff thinking on these ITAAC implementation topics is included in the staff's forthcoming draft paper on COL issues or another appropriate vehicle. We look forward to in-depth discussion with the NRC staff on ITAAC implementation and other COL issues, after design certification issues are resolved, and we believe the proposed additional rule provision on ITAAC verification will meaningfully expand the framework for these follow-on discussions. After appropriate interactions and preparation of one or more papers, we expect these discussions to lead to common understandings and appropriate Commission guidance.

E. Conclusion As recognized at the March 8, 1995, Commission briefing and May 2 public meeting, there is no significant difference between the industry and NRC staff views on the nature of NRC ITAAC verification. As discussed above, we request that the Statements of Consideration be clarified to ensure they focus on and reinforce this important additional provision.

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IX. Post-Design Certification Tier 2 Change Process A. Introduction In our August 1995 comments on the NOPRs, we proposed additional process provisions for the design certification rules to enable plant designers to incorporate qualifying generic Tier 2 changes into the standard designs via the "50.59-like" process during the multi-year period between the time of design certification and the first COL application. The changes that would be allowed under the industry proposal would not be safety-significant or adverse to the NRC staff's safety review of the design because each must first be determined not to involve an unreviewed safety question. However, such a process would be significant to the ability of prospective license applicants to complete the detailed design engineering and firm cost and schedule estimates for the plant. Thus the industry proposal is intended to enhance design and licensing certainty, consistent with objectives that are central to Part 52.

While NRC senior management expressed openness to later consideration of a post-design certification generic Tier 2 change process outside the context of the pending design certification rules, this openness is not reflected in the Statements of Consideration on the draft final rules. As discussed below, the SOC should be modified to reflect NRC openness to discuss a post-design certification change process and related issues after the design certification rules are completed.

B. A post-design certification Tier 2 change process holds significant benefits for the industry, the public, and the NRC In our August 1995 comments and at the December 4, 1995, public meeting on the design certification rules, the industry identified several attributes and advantages of a post-design certification change process for generic Tier 2 changes. In particular, such a process would:

• enhance design/licensing certainty and early issue resolution, consistent with Part 52 objectives, by enabling generic changes to the Tier 2 design to be incorporated prior to a COL application, thus facilitating completion of detailed design engineering and firm cost and schedule estimates;

• enhance regulatory efficiency consistent with NRC and broader government initiatives by addressing generic changes to the Tier 2 design a single time, rather than repetitively with each license application with attendant potential for differing implementation;

• assure that timely and meaningful information is available to the public on intended changes to the approved design; 58

• reduce burden, complexity and uncertainty associated with the first COL application; and

• facilitate orderly, manageable and efficient processing and implementation of Tier 2 changes after design certification.

Also, while not necessary to assure a high degree of standardization among future plants referencing a given design certification, a post-design certification change process clearly furthers the Part 52 goal of standardization and is complementary to the strong industry commitment thereto.

C. The Statements of Consideration for the design certification rules should reflect the openness expressed in public meetings to future consideration of a post-design certification Tier 2 change process At the December 4, 1995, public meeting on the proposed design certification rules, the NRC staff did not dispute the potential advantages of such a post-design certification generic change process and observed that the plant designers were best suited to performing the required safety evaluations for generic Tier 2 changes.

However, NRC senior management noted that the industry proposal raised significant issues. These included the regulatory status of the plant designers and related NRC enforcement capability, public notice and participation concerning proposed changes to the design certification, and the resource burden on the NRC staff to evaluate proposed changes. (Tr. pp. 66-87.)

Citing these concerns, NRC senior management stated that consideration of this issue should be deferred for separate, later discussion outside the context of design certification. While we believe the concerns raised by the NRC staff can be addressed through appropriate additional provisions in the design certification rules, we recognize that the process proposed in our August 1995 comments may not be the only viable approach and that the design certification rules may not be the only vehicles for achieving the intended benefits.

However, we were surprised and disappointed that the SOC in SECY-96-077 did not reflect the openness to further discussion of a post-design certification change process that was expressed at the December 4, 1995, and July 15, 1996, public meetings. Instead, the SOC identify three existing mechanisms for addressing Tier 2 changes after design certification, none of which are adequate to achieve the intended objectives. The option of rulemaking to amend the design certifications is inoperative because it cannot be used to implement changes unless required to assure adequate protection or compliance with NRC regulations. The option to approve changes as part of the plant-specific COL application review fails to address the very concerns that have led to the proposal for a generic change process that could be used prior to the first COL application. And while the option of staff review and approval of topical reports on proposed Tier 2 changes would increase design/licensing certainty and is worthy of further discussion, it falls short of providing issue finality, and its practicality is put into question by the potential 59

resource limitations cited by staff. Further, preparation of topical reports and safety evaluation reports is unduly resource intensive, considering the necessarily low safety-significance of the design changes in question. Therefore, this approach would exacerbate the concern regarding the potential burden on NRC staff resources. A process is needed that provides for timely consideration under the "50.59-like" process of proposed generic changes to the Tier 2 design. It is because of the inadequacy of the existing options that the industry seeks further dialogue with the NRC staff in this area.

Two additional possibilities were identified at the December 4 public meeting that were not mentioned in the SOC. The first was the potential for holders of a Final Design Approval (FDA) to use a "50.59-like" standard to make changes in their FDA. And the second was the potential that Part 52 and the DCRs could be amended to allow rulemaking to incorporate generic Tier 2 changes for reasons other than adequate protection or compliance. While these alternatives have their respective weaknesses, they too are worthy of further discussion with the NRC staff.

D. Conclusion To enhance the level of design and licensing certainty necessary to support the decision to apply for a COL, a post-design certification change process is needed whereby generic Tier 2 changes identified as a result of detailed engineering work can be incorporated into the standard designs. Existing processes identified in SECY-96-077 are inadequate. There are significant benefits that would accrue to the industry, public, and the NRC through establishment of a post-design certification generic Tier 2 change process. At the very least, we request that the SOC for the final design certification rules reflect the view expressed by NRC senior management. Namely, that to the extent the industry considers the existing options for making post-design certification Tier 2 changes to be inadequate, the industry should come forward with specific proposals for discussion with the NRC staff after the design certifications are completed. We look forward discussing possible alternatives for establishing a post-design certification process and resolution of the concerns that have been expressed by the staff.

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X. Additional Change Process Issues A. Hearings on exemption requests by licensees Section 8(b)(4) would require mandatory hearings on all exemption requests by a licensee, even if there is no request for a hearing from the public. As explained by NRC's deputy general counsel at the public meeting on May 2, 1996, that was not the staffs intent. (Tr. 36-38.) Instead, the staff intended that exemption requests by a licensee only be subject to an opportunity for a hearing, similar to license amendment requests under Part 50.

Therefore, Section 8(b)(4) should be modified to reflect the staffs intent, as follows:

An applicant or licensee who references the design certification may request an exemption from Tier 2. The Commission may grant such a request only if it determines that the exemption will comply with the requirements of 10 CFR 50.12(a). The granting of such an exemption must be subject to litigation in the same manner as other issues in the combined license hearing. Issuance of the exemption to a COL applicant must be subject to litigation during the combined license proceeding in the same manner as other issues material to that proceeding. Issuance of the exemption to a licensee must be subject to an opportunity for a hearing in the same manner as other license amendments.

B. Paragraph 2.B.3 of the Statements of Consideration should be clarified to state that plant specific changes will be implemented under Section 50.59 or Section 50.90, as appropriate Paragraph 2.B.3 of the Statements of Consideration of the draft final design certification rules states that the Commission will develop a process for plant specific changes to design-related information made by the COL applicant or licensee, and that the Commission expects this process will be similar to the change process provided in Section 8(b)(5). Such a process is unnecessary. Plant specific changes by a COL applicant or licensee should be made in the same manner as such changes are made by current Part 50 licensees. Therefore, paragraph 2.B.3 of the Statements of Consideration should be modified to provide that plant specific changes by the applicant or licensee will be implemented under Section 50.59 or 50.90, as appropriate and subject to the backfit provisions of Section 50.109. To the extent that a plant specific change impacts a provision in the DCD such as an interface requirement, the design certification rules will govern the change, and no additional provision is needed.

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C. A hearing opportunity for Tier 2* changes is unnecessary and should be provided only if the change involves an unreviewed safety question (USQ)

Section 8(b)(6)(ii) of the draft final rule states that a change to Tier 2* requires a license amendment, which in turn requires the opportunity for a public hearing.

This process is overly burdensome and inappropriate for Tier 2* changes that do not involve a USQ. While the staff believes that the information in Tier 2* has higher safety significance than the other information in Tier 2, the information in Tier 2* will generally not rise to the level of significance of either Tier 1 or the technical specifications, and not all Tier 2* changes will involve a USQ.

Because Tier 2* changes that do not involve a USQ have little safety significance, and are by definition within the Commission's original safety finding, such changes should not give rise to an opportunity for a public hearing. With regard to the opportunity for hearing, such Tier 2* changes can and should be treated no differently from normal (non-USQ) Tier 2 information, changes to which are not subject to a hearing opportunity.

The industry concern regarding the automatic hearing opportunity for all Tier 2*

changes regardless of safety significance is compounded by the related NRC staff proposal that Tier 2* requirements in several areas (specified in Section 8(b)(6)(ii) of the draft final rules) continue for the life of the plant.Section VII.A of this attachment discusses the industry recommendation that all Tier 2* restrictions expire at first full power.

For these reasons, including the compounding burden of unbounded Tier 2*

restrictions discussed in Section VII.A above, we urge the Commission to modify the language in Section 8 to require prior NRC approval of Tier 2* changes, while restricting the need for a license amendment and an opportunity for a hearing to those Tier 2* changes involving unreviewed safety questions.

D. To the extent the Commission does not adopt the recommendation that all Tier 2* restrictions expire at first full power, the Statements of Consideration should be modified to reflect the staff intent that Tier 2* material in the DCD may be superseded by information submitted with a license application or amendment In the public meeting of July 15, 1996, the NRC staff raised the possibility that a COL application or amendment request could contain information that would, in effect, supersede specified Tier 2* information and thus allow changes to be made to that information after first full power without prior NRC review and approval, i.e.,

consistent with Tier 2 requirements. (Tr. pp. 104-105.) We understand that, in essence, once information superseding Tier 2* material is approved by the NRC, the staff envisions that Tier 2* restrictions would expire for that information.

62

We appreciate this useful clarification and recommend that the Statements of Consideration be modified to reflect the staffs view. However, the appropriate resolution to the issue of unbounded Tier 2* restrictions is as described in Section VII of this attachment. Specifically, Tier 2* restrictions are not necessary after first full power, and therefore all Tier 2* restrictions should expire at that time. We note that this approach will allow licensees and the NRC to avoid the significant resource burden of the amendment process envisioned by the staff.

63

,.,1,1, jl**IIII ASEA BROWN BOVERI DOCKETED USNRC July 23, 1996 Mr. John C. Hoyle, Secretary

'96 JUL 23 PS :48 Office of the Secretary *

• OFFICE r-:- Jr C'Eeot::--1,

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US. . .N uc1ear Regu1atory C omm1ss1on OCKETll~G i -Sl::°HVlCE Washmgton, D.C. 20555-0001 DOCKET NUMBER . 0 BRAHCH ATIN: Docketing and Service Branch PROPOSED RULE] 5 .

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Supplementary Notice of Proposed Rulemaking, S t a : ;Design Certification for the System 80 +,. Standard Design, SECY 96-077 (Apr. 15, 1996), noticed at 61 Fed. Reg. 18099 (Apr. 24, 1996),

comment period extended at 61 Fed. Reg. 27027 (May 30, 1996),

Docket No.52-002.

Dear Mr. Hoyle:

Combustion Engineering Inc. (ABB-CE), a Connecticut-based U.S. corporation with nearly four decades of experience in the U.S. nuclear industry, is the applicant for design certification (Docket No.52-002) of the System 80+,. Standard Plant Design described in the above-referenced Supplementary Notice of Proposed Rulemaking (SNOPR) .. With the issuance of SECY 96-077, the Nuclear Regulatory Commission (NRC or Commission) Staff presented a draft final design certification rule for the System 80+,. Standard Plant Design. This letter contains ABB-CE's response to the request for public comments set forth in the above-referenced Federal Register notices.

ABB-CE has previously filed detailed comments, on August 4, 1995, in response to NRC's Notice of Proposed Rulemaking (NOPR) for Standard Design Certification for the System 80+ ... Standard Plant Design, published at 60 Fed. Reg.

17925 (Apr. 7, 1995). In addition to the specific comments contained in that filing, ABB-CE also expressed its full support of the extensive comments on the NOPR filed by the Nuclear Energy Institute (NEI) on behalf of the nuclear industry generally. In SECY 96-077, NRC Staff addressed some of the comments filed by ABB-CE and the nuclear industry, but ignored or disagreed with many others, including several comments regarded by ABB-CE and the nuclear industry to be the most important for .

ensuring the viability of the U.S. licensing regime for advanced light water reactors.

Now, therefore, ABB-CE finds itself at a critical juncture where the Commission's resolution of the nuclear industry's and ABB-CE's outstanding comments may well determine whether the System 80 +... design certification rule will ever be used in the United States. . 1996 JUL 3 O-.,--

Acknowloogoo by caff4 um~wMs~~~M~tl!,~.MJ\

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ABB Combustion Engineering Nuclear Power. .

c;ombustion Engineering Inc. 12300 Twinbrook Parkway Telephone (301) 881-7040 Washington Nuclear Operations Suite 330 Telecopier (301)'881-7043. * *-

Rockville, Maryland 20852

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,J.S. NUCLEAR REGULATORY COMMISSIO~

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Mr. John C. Hoyle July 23, 1996 Page 2 NRC' s issuance of the SNOPR for System 80 +... marks the penultimate milestone in a process that has consumed many tens of thousands of manhours of NRC and ABB-CE resources, cost approximately $100 million in ABB-CE and U.S.

Department of Energy funds and millions of dollars of NRC review fees, and has taken close to a decade to complete. In June 1994, that process resulted in the successful issuance of the Final Design Approval (FDA) for System 80+ "', signaling NRC approval of the System 80+,. Standard Plant Design itself. Upon FDA issuance, System 80 +- was offered for sale in the global marketplace and now represents one of the safest and most complete new nuclear plant designs in the world. ABB-CE has every expectation that the System 80 +... Standard Plant Design will succeed in the foreign marketplace.

Ironically, however, ABB-CE's ability to successfully offer the System 80+"'

Standard Plant Design to the United States domestic market may well hinge on the Commission's resolution of the remaining licensing process issues that were intended, originally, to take full advantage of the technical merits of this advanced design. Part 52 was promulgated, and its principles reaffirmed in the Energy Policy Act of 1992 (EPACT), in the hope and expectation that its licensing process advantages would parallel the substantial technical advantages expected with advanced light water reactors. The System 80+,. Standard Plant Design, for example, represents an increased safety factor of approximately 100 relative to the nation's already safe operating nuclear plants, and offers significant cost and reliability advantages as well.

ABB-CE seeks to ensure that these advantages are appropriately reflected in the Part 52 design certification rule for System 80+ ... in order to successfully market the design to the utility industry in the U.S.

ABB-CE participated extensively in, and fully supports, the nuclear industry's more detailed comments, separately filed by NEI, on the SNOPR. ABB-CE strongly urges NRC to review carefully and to adopt the industry's comments, and in particular, to utilize the proposed rule language represented by ABB-CE' s attachments to this letter, as well as the detailed comments and tables prepared separately by NEI.

ABB-CE hereby incorporates by reference the NEI comments into its own comments.

No effort will be made here to address all of the important points raised in the NEI comments. Rather, ABB-CE will highlight in this letter certain specific issues that warrant additional comment or vendor-specific discussion.

Mr. John C. Hoyle July 23, 1996 Page 3 DISCUSSION I. Finality, An Issue of Control ABB-CE' s continuing objections to NRC Staffs proposed resolution of disputed design certification process issues center on the finality (or lack thereof) of the System 80+,. design, and with the "applicable regulations" proposed by the NRC Staff to be incorporated into the System 80+ ... design certification rule. In sum, ABB-CE views the remaining disagreements between the nuclear industry and the Staff as reducing to the basic issue of control. Specifically, the NRC Staff appears to desire more control now over various aspects of the standard design than the nuclear industry believes was originally intended by Part 52, the Energy Policy Act, and previous Commission guidance and positions.

When Part 52 was promulgated, the "balance of control" between NRC and the nuclear industry over the standard design was struck in Section 52.63, which provides protection against cost-benefit changes imposed by NRC Staff (i.e., the traditional backfit standard contained in 10 C.F.R. § 50.109), but leaves open Staff's prerogative to backfit the design for adequate protection of the public health and safety. The Commission and the nuclear industry struck the balance of control represented by Section 52.63 with the full knowledge and understanding that it would reduce flexibility for both sides in making changes to the standard plant designs, but would offer in return a high degree of finality -- and thus, standardization -- to the designs.

The twin goals of finality and standardization, in turn, were to provide the requisite certainty to the licensing and review process that would restore investor confidence in the nuclear option in the U.S. and allow domestic utilities to realize the full technical benefits of the advanced designs.

Now, as articulated in the proposed resolution of many of the disputed process issues in SECY 96-077, the NRC Staff has overtly retreated from the balance represented by Section 52.63, without any apparent safety benefit. The Staff has plainly represented its position as stemming from its desire to regain control over the design. This justification, however, is unavailing. When ABB-CE embarked on the ambitious, expensive, and time-consuming task of design certification, it did so in the reasonable expectation -- shared within the nuclear industry and by Congress -- that the System 80 +,. Standard Plant Design would have all the finality represented by the Section 52.63 balance. In retreating from that balance, the Staff has not articulated a single legal or safety-based rationale that would suggest the balance of control should be recast now, with the design complete, in favor of itself. Thus, far from being

Mr. John C. Hoyle July 23, 1996 Page 4 solely a process debate, ABB-CE regards the finality dispute to be one also of simple equity.

ABB-CE implores the Commission to treat the various disagreements between the nuclear industry and the NRC Staff over finality issues as matters of policy, not as matters of technical merit, legality, or safety. Not only does the System 80+ ..

Standard Plant present a substantially safer design, but the NRC Staff's ability to ensure that such safety remains in place is firmly embedded in Section 52.63.

Similarly, Staff objections to the proposals of the nuclear industry do not rest on legal or technical grounds, but rather, represent the Staff's "preference" that the balance of control shift more toward the Staff. From ABB-CE' s perspective, the policy questions presented by the various finality issues are interrelated, and thus can be addressed by answering two fundamental questions: Should the Commission reverse course, at the eleventh hour, and shift the balance of control articulated by Part 52, the Energy Policy Act, and previous Commission positions, so as to accommodate a Staff preference for augmented control over the technology (not the safety) of the design?

And, does this reversal justify the resulting inequity to ABB-CE and the U.S.

taxpayer, who entered the design certification process with clear and different expectations concerning the design's overall level of finality?

Finally, ABB-CE notes that in most cases where disagreement remains between the Staff and the industry on issues of finality, the Staff's proposed resolutions will further complicate an already overly-complicated licensing process for the advanced designs. The result would be a "swiss cheese" approach to regulation, with certain design aspects having one set of standards and backfit rationales, and other aspects having different standards and rationales. At this point, and particularly since safety is not implicated, ABB-CE believes it is imperative to simplify, not complicate, the rulemaking process, and to reduce any unnecessary regulatory burdens associated with the advanced designs. Hence, ABB-CE strongly urges the Commission to adopt the industry's proposed issue finality resolutions, returning the balance of control to that represented by Section 52.63.

II. Applicable Rea=ulations ABB-CE supports NEI' s position that there should be no "applicable regulations." Applicable regulations, in whatever form, are unnecessary and destablizing, and do not comply with previous Commission positions and guidance.

ABB-CE is particularly concerned that several of the applicable regulations related

Mr. John C. Hoyle July 23, 1996 Page 5 most specifically to operational (and not design) issues were simply "removed" from the applicable regulations section of the NOPR and relocated to another section in the SNOPR, an apparent new repository for all operational issues. In particular, ABB-CE agrees with NEI that the final rules should be revised to delete all of Section 4(b) and all of Section 5, which together represent all the applicable regulations. Moreover, ABB-CE concurs in the objections cited by NEI to the specific wording proposals of each of the applicable regulations that apply to the System 80 +"' Standard Plant Design.

It is important to note that all of the Staff's proposed applicable regulations for System 80+ .. were created after the design review had been fully completed. This design review was performed using Commission guidance provided in the SRMs for SECY 90-016 and SECY 93-027, which did not require "applicable regulations" for System 80+"'. NRC's Final Safety Evaluation Report (FSER) for System 80+"'

concludes correctly that the design satisfies and incorporates all of the Commission-approved additional technical requirements contained in SECY 90-016 and SECY 93-087. In attempting, after the fact, to reshape these additional technical requirements into broadly-stated "regulations" in the SNOPR, the Staff's proposed draft final rule has reduced the technical requirements to vague generalities that are subject to reinterpretation later. Thus, for no apparent safety benefit, Staff's proposal adds a highly destablizing process element, and substantial uncertainty, to the System 80 +"'

design certification rule.

Furthermore, in attempting -- after the design review had already been completed -- to add specificity to the broadly-stated applicable regulations proposed for System 80 + "', SECY 96-077 proffers language that is not supported by the System 80+"' Design Control Document (DCD) and FSER, creating errors that could become a focal point for future challenges based on allegations that the design does not meet the "applicable regulations." Indeed, in some instances, the System 80+"' design does not technically meet the "applicable regulations" that were proposed.

For example, Section 5(c)(9)(i) of the proposed draft final rule requires that design features for certain severe accident sequences should incorporate "[a] minimum of 79 m2 of unobstructed reactor cavity floor space for molten core debris spreading."

In fact, however, the NRC approved the System 80+,. design for 64 m2

• Likewise, Section 5(c)(l2) limits the System 80+,. "conditional containment failure probability to less than 0.1" for certain severe accident sequences. {This is an area where the NRC Staff is apparently proposing to convert an industry goal into a regulation.) In fact,

Mr. John C. Hoyle July 23, 1996 Page 6 however, there is one recorded calculation for System 80 +"' for which the conditional containment failure probability of 0.1 is slightly exceeded.

Finally, the instability of applicable regulations will be compounded at the time of certification renewal if the Staffs current interpretation of the broad scope of a certification renewal proceeding, as discussed in Section V. below, is adopted by the Commission. The existence and vagueness of the proposed applicable regulations make it probable that future NRC Staffs engaged in reviewing certified designs for renewal after 15 years will be tempted to backfit the design to conform with subsequent interpretations of the meaning and intent of the applicable regulations. If so, this future Staff will not be constrained by the backfit provisions proposed in the SNOPR, adding even more uncertainty to the long-term finality associated with the design. *

m. Technical Specifications ABB-CE originally questioned the NRC's position on developing technical specifications (Tech Specs) for the advanced plant designs at the design certification stage. It was ABB-CE's view that certain aspects of the Tech Specs could not be developed prior to the time of an application for a combined license (COL). The NRC Staff, however, insisted that Tech Specs for each advanced plant be included in the DCD. Where numerical values could not be specified, ABB-CE was instructed to provide preliminary values or to leave such values blank, to be filled in at the time of a COL application.

Consequently, ABB-CE, the U.S. Department of Energy, and the nuclear industry in general expended enormous resources in developing what are essentially standard Tech Specs for the System 80 +. . Standard Plant Design. These Tech Specs were reviewed and re-reviewed by the NRC Staff and the Advisory Committee on Reactor Safeguards, and were fully approved by NRC with the issuance of the System 80+"' FSER and FDA.

The NRC Staff does not now take issue with the content of the System 80 +"'

Tech Specs, but rather suggests that the Tech Specs should lose their finality and be essentially removed from the DCD. The Staff's rationale for this position is not based on any articulated safety concern, but rather on a concern over the level of control that NRC will later have to impose backfits over operationally-related issues, including those addressed in the DCD. In particular, the Staff wants to apply the cost-benefit

Mr. John C. Hoyle July 23, 1996 Page 7 backfit standards in 10 C.F.R. § 50.109 to all operationally-related aspects of the Tech Specs rather than the enhanced backfit protection standards of Section 52.63 that would otherwise be applicable to the Tech Specs as an integral component of the DCD's Tier 2. This result is directly contrary to the Commission's SRM on SECY 90-377, which provides that finality should attached to all information reviewed and approved by the Staff in the design certification rule:

The Commission agrees with the staff that the process [i.e., the design certification process] provides issue finality on all information provided in the application that is reviewed and approved in the design certification rulemaking. Information obtained during the staff's review process that forms the basis for a safety decision should be formally docketed as part of the application. Only this information will have regulatory significance for the design certification process.

Staff Requirements Memorandum, "SECY-90-377 - Requirements for Design Certification Under 10 CFR Part 52," Feb. 15, 1991, at p. 3. ABB-CE submitted its System 80+ .. Tech Specs as part of its design certification application (Tier 2 of the DCD), and NRC Staff reviewed and approved those Tech Specs as discussed in Chapter 16 of the FSER, and in the subsequent issuance of the System 80+ .. FDA.

At the NRC Senior Manager's workshop on July 15, 1996, the Staff suggested that it could develop a new standard whereby assurances would be provided, in the final design certification rule, to the effect that the Staff could not backfit "design features" through mandated changes to the Tech Specs. However, all "operational features" could be changed if justified under the backfitting standard contained in 10 C.F.R. § 50.109. Tr. at pp. 17-28. This result is incongruent with Part 52 and, in particular, with Section 52.63, which provides enhanced backfit protection to all aspects of the standard plant design. When asked specifically at the July 15 workshop why a Section 52.63 backfit standard could not be applied to the Tech Specs -- thereby realizing the finality of the agreed text -- Staff could articulate no compelling answer other than its preference for increased control over the design post-COL, and its desire to avoid "three sets of books." Tr. at pp. 13-14, 40-42.

Industry concurs that during the post-COL phase the backfit standard contained in Section 50.109 would be applicable to all non-design-related changes to the Tech Specs. That fact, however, does not justify extending the same standard to earlier time frames. Indeed, the Staff's proposed protection standard, Section 50.109, does not even apply to license applicants, thus leaving the COL applicant with absolutely no

Mr. John C. Hoyle July 23, 1996 Page 8 legal protection against NRC changes or intervenor challenges to material which, in fact, has already been approved by the NRC and has been subjected to a hearing opportunity. Moreover, the burden of maintaining two sets of books, to the extent this is a genuine burden, will fall largely on the industry, and not on the NRC.

Therefore, ABB-CE sees no compelling reason that the Tech Specs should not now be afforded the level of finality associated with every other aspect of Tier 2 of the DCD.

IV. Tier 2* Expiration Section 8(b)(6) of the SNOPR establishes another process by which the NRC Staff seeks to assert more control over certain aspects of the System 80 + ... Standard Plant Design, this time even well after an advanced plant has actually been built and licensed to operate, contrary to long-standing industry positions.

Specifically, the Staff proposes that for the life of the COL for a System 80+ ...

plant, any change to one of four specific issues designated as Tier 2

• information must receive prior Staff review and approval and, in essence, be treated as a license amendment. (Those issues are (1) methods for seismically qualifying equipment, (2) acceptance criteria for pipe design, (3) limits on fuel burnup, and (4) control room factors human engineering.) All other Tier 2* information will revert to Tier 2 information after the plant achieves first full power, which permits the licensee to make changes to such information without prior Staff review and approval provided only that the change satisfies the 50.59-like change process.

The reason behind the application of heightened NRC scrutiny for changes to Tier 2

• information before first full power stemmed from the fact that in certain specific areas the design could not be fully developed anytime earlier due to lack of as-procured or as-built data or because of rapidly changing technology. This concern, however, disappears upon plant operation. Once a plant is built and operated, the design will have been finalized and thus the need for heightened NRC scrutiny (i.e.,

the need for Tier 2*) will have expired. Unpersuaded by this fact, the Staff now rationalizes that maintaining Tier 2

• change restrictions is warranted because the Staff considers some Tier 2* information "more significant" than other Tier 2* information.

Tr. at pp. 97-98.

The onerous effect of the Staffs position on Tier 2

• expiration, however, is not limited to just the four specific Tier 2* issues. Throughout ABB-CE's System 80+ ..

Design Control Document there are at least 141 design features that will fall subject to

Mr. John C. Hoyle July 23, 1996 Page 9 a heightened level of Staff scrutiny, and thus additional NRC control. Beyond these, many secondary documents referenced in the DCD contain uncounted additional bracketed sections that will also require prior NRC approval to be revised.

Of even greater burden, however, is the fact that any change in design aspects related to the four non-expiring Tier 2* issues will require not only prior NRC review and approval, but also a license amendment and an opportunity for a hearing, even if the change would not otherwise rise to the level of an unreviewed safety question (and

• thus, could ordinarily be changed using the 50.59-like change process). This burden, moreover, will persist through the life of the plant.

Another effect of this Staff position is the resultant loss of finality of Tier 2

• information. Specifically, in response to Question 7 of the NOPR the Staff stated that any changes to the DCD in the four Tier 2

• areas will trigger a license amendment requirement and offer an opportunity for a hearing. The resource requirements and licensing uncertainty associated with this approach is an onerous and unnecessary regulatory burden, particularly when a proposed design change would not have constituted an unreviewed safety question.

The NRC Staff has stated that license amendments lose the backfit protections contained in Section 52.63 and that the Section 50.109 backfit provisions would become applicable. In the public meeting of July 15, 1996, Mr. Russell of the NRC Staff held out the possibility that a licensee could apply for an amendment (at the COL stage or beyond) that would articulate certain parameters under which, with prior NRC approval, site-specific information could be substituted for Tier 2* issues and that further changes in this site-specific information could be implemented without prior NRC review and approval, i.e., without license amendments. Tr. at pp.92-105.

ABB-CE believes that, even if Mr. Russell's approach were to be adopted, licensees a

would nevertheless be forced into position of having to file for amendments, even for changes having no safety significance.

Thus, ABB-CE fully supports the recommendation made by NEI that all Tier 2* requirements should terminate at first full power, at which point all Tier 2*

information should revert to Tier 2 information and be subject only to its attendant controls and restrictions.

Alternatively, ABB-CE notes that NRC Staff could revise its proposed response to NOPR Question 7. The justification that Tier 2* changes should perpetually be treated as license amendments because they involve a licensee departing from

Mr. John C. Hoyle July 23, 1996 Page 10 significant requirements of the DCD is sharply inconsistent with the manner in which Tier 2 changes are otherwise handled. Tier 2 information in the DCD constitutes significant "requirements" just as much as Tier 2* information, and for those Tier 2 changes that do not involve an unreviewed safety question there is no provision in the design certification rule for a license amendment or a hearing opportunity. A similar rationale could be applied for Tier 2* changes that do not involve a change in Tier 1 information or the Tech Specs, and that do not create an unreviewed safety question.

In short, if no unreviewed safety question is involved, the Tier 2* change should be treated as any other Tier 2 change except for the requirement to first obtain NRC review and approval.

v. Scope of Certification Renewal Proceedin2 As noted above, approximately $100 million in ABB-CE and U.S. government funds, and nearly a decade of work, were expended to produce the System 80+ ...

Standard Plant Design. This is an exercise that, from a policy perspective, ought not to be repeated unnecessarily, even in small part. Yet, the effect of the Staff's proposed approach to design certification renewal is to do precisely that.

Section 52.59 states that the Commission shall issue a rule granting renewal of the certification if the design "complies with the Atomic Energy Act and the Commission's regulations applicable and in effect at the time the certification was issued .... " Regrettably, Part 52 and its rulemaking history do not provide additional guidance for determining precisely what any such Commission determination of compliance, at the time of renewal, should entail. As stated in NEI' s letter to Chairman Shirley Jackson of May 31, 1996, the industry -- and certainly ABB-CE --

has always envisioned that the scope of any such renewal proceeding would be limited to a review of changes proposed to the design by either the vendor or the NRC Staff.

Presumably, any regulatory non-compliance associated with the original design would, by the time of renewal, have been backfitted if a genuine issue of adequate protection or noncompliance with regulations in effect at the time were involved. Thus, apart from review of NRC and vendor changes, ABB-CE envisioned the certification

• renewal proceeding as no more than a "due diligence" process to ensure that intervening developments between the time of original certification and the time of renewal did not reveal a previously undiscovered noncompliance. In no respect, however, did ABB-CE ever foresee that NRC Staff could reopen the entire design to a wholly new review.

Mr. John C. Hoyle July 23, 1996 Page 11 At the May 2 public workshop, to the considerable surprise of the industry, Mr. Malsch of NRC suggested that a renewal proceeding might actually involve a de novo review of the standard design, a proposition ABB-CE finds to be unacceptable.

• At the July 15 public workshop, Mr. Malsch reaffirmed that there were, in his view, "no legal limits" on the scope of Staff's (or the public's) review at the time of renewal. Tr. at p. 50. ABB-CE finds this position to be nothing short of astonishing, since it suggests that ABB-CE's, the Department of Energy's, and NRC's efforts to date were directed at developing a standardized design with merely a 15-year life.

- ABB-CE believes that, although Part 52 does not precisely delineate or limit the scope of a renewal proceeding, neither does it do the opposite, i.e., open the door to an entirely new review. Thus, ABB-CE views the issue of the scope of a certification renewal as strictly a policy issue that the Commission should decide now. ABB-CE strongly encourages the Commission to adopt the specific proposal offered in the NEI comments, which reasonably constrains the scope of a certification renewal proceeding, while leaving open the potential for any genuine challenges to the certified design based on adequate protection of the public health and safety, non-compliance with regulations in effect at the time, and prescribed Staff cost-benefit tests. At the very least, the Commission is requested to defer expressly its decision-making on the scope of certification renewal, so as not to signal unwittingly that the entire certified design is open to re-review or challenge in 15 years.

VI. Conclusion Appropriate resolution of the outstanding System 80 +"' design certification regulatory process issues is essential to nuclear power's future in the United States.

Without a fluent and workable licensing regime to accompany the substantial technical and safety advantages achieved by advanced designs like System 80 +"', potential users of such promising new designs will opt for more certain, if less desirable, supply alternatives. It would be tragic indeed if, having worked conjunctively for years to achieve an exemplary technical result -- an FDA consistent with longstanding industry and NRC goals -- the industry and the NRC Staff were to fail in the end to realize the regulatory process advantages that each understood to be the very stimulus that would (and indeed, did) in large part foster the approved. design improvements.

Mr. John C. Hoyle July 23, 1996 Page 12 ABB-CE requests that the Commission exercise its policy-making prerogatives in such a manner as to reaffirm Part 52' s original vitality in the final design certification rule for System 80+ "'. To that end, ABB-CE respectfully requests that the Commission adopt the proposed rule changes specified in Attachments A and B to this letter, and as further described in the comments submitted by NEI.

Respectfully submitted, COMBUSTION ENGINEERING, INC.

{;wA Charles B. Brinkman, Director Nuclear Licensing Attachment A ABB-CE' s Suggested Revisions to the Language of the Draft Final Design Certification Rule for the System 80 +"' Design (redline/strikeout)

Attachment B ABB-CE' s Proposed Design Certification Rule for the System 80 +"' Design (clean versio.n)

- cc (w/Attachments):

Chairman Shirley A. Jackson Commissioner Kenneth C. Rogers Commissioner Greta J. Dikus Mr. James M. Taylor, EDO Design Certification Senior Managers Committee:

Mr. James Milhoan Mr. William Russell Dr. David Morrison Mr. Martin Malsch, Esq.

j ATTACHMENT A ABB-CE's SUGGESTED REVISIONS TO THE LANGUAGE OF THE DRAFT FINAL DESIGN CERTIFICATION RULE FOR THE SYSTEM 80+ STANDARD PLANT DESIGN This attachment provides ABB-CE's suggested changes to the language of the draft final design certification rule for the System 80+ Standard Plant Design. This attachment identifies ABB-CE's suggested additions through use of IB.itl and suggested deletions through use of strilreottt.

Each"**-*change has an associated footnote which explains ABB-CE's reasons for the change (with the exception that the first footnote is contained in the rule itself).

Appendix B To Part 52 Design Certification Rule for the System 80 + Design

1. Introduction.

Appendix B constitutes design certification for the System 80 +

• standard plant design, in accordance with 10 CFR Part 52, Subpart B. The applicant for certification of the System 80+ design was Combustion Engineering, Inc. (ABB-CE).

2. Definitions.

As used in this part:

(a) Generic design control document (generic DCD) means the document that contains the generic Tier 1 and Tier 2 information that is incorporated by reference into this appendix.

(b) Plant-specific DCD means the document, maintained by an applicant or licensee who references this design certification rule, consisting of the information in the generic DCD, as modified and supplemented by the plant-specific departures and exemptions made under Section 8 of this appendix.

(c) Tier 1 means the portion of the design-related information contained in the generic DCD that is approved and certified by this design certification rule (hereinafter Tier 1 information). The design descriptions, interface requirements, and site pa:ra:mctefs are derived from Tier 2 information. 1 Tier 1 information includes:

(1) Definitions and general provisions; (2) Design liEIUisiilr descriptions; (3) Inspections, tests, analyses, and acceptance criteria (ITAAC);

• "System 80+" is a trademark of Combustion Engineering, Inc.

1 This language is replace by language provided below to conform to the provisions in the DCD Introduction.

2 This addition clarifies that Tier 1 includes only the certified design descriptions.

(4) Significant site parameters; and (5) Significant interface requirements.

(d) Tier 2 means the portion of the design-related information contained in the generic DCD that is approved but not certified by this design certification rule (hereinafter Tier 2 information). Compliance with Tie£ 2 is required, bttt generic changes to and plant specific departttres from Tier 2 are governed by Section 8 of this appendix. 4 Tier 2 information includes:

(1) Information required by 10 CFR 52.47, vl:ith the exception of technical specifications and conceptual design information; (2) Information required for a final safety analysis report under 10 CFR 50.34; (3) Supporting information on the inspections, tests, and analyses that will be performed to demonstrate that the acceptance criteria in the ITAAC *

~

3 These additions reflect provisions in the DCD Introduction that have been approved by the NRC. These provisions are needed if the NRC does not incorporate the DCD Introduction into the design certification rule. See NEI Comments, § VI.

4 This language was deleted because it is inconsistent with the DCD Introduction.

(4) CombiHed liceH.se (COL) actioft items (COL liceHse iHformatioH) lllffinltiffillnllI~mlllIIBm!lml:::11111, which identify certain matters that shall be addressed ift the site specific portioH of the fiHal safety aHalysis report by aft applicaftt who refcrcHces this appeftdix.

These items coHstitttte iRformatioH requircmeHts but do Hot otherwise coHstitutc substaHtr1e requircmeHts for judgiHg the adequacy of the 5

This language was added to clarify the role of Tier 2 information in complying with the ITAAC.

6 These changes and additions reflect the provisions in the DCD Introduction which have been approved by the NRC. These provisions are necessary if the NRC does not incorporate the DCD Introduction by reference into the design certification rule. See NEI Comments, § VI.

(e) Tier 2* means the portion of the Tier 2 information, designated as such in the generic DCD, which is subject to the change process in Section 8(b)(6) of this (f) All other terms in this appendix have the meaning set out in 10 CFR 50.2, 10 CFR 52.3, or Section 11 of the Atomic Energy Act of 1954, as amended, as applicable.

3. Scope and contents of this design certification.

(a) Tief' 1 and Tier 2 of the System 80+ Design Control Document, ABB-CE, dated - -......~...ttP.J?~~*e..d for ~l::::lalm;ill::::lli:::,tt~l~ltf:::::::::::111 reference liifiiiUf§Mggl by the Director of the Office of the Federal Register on incorporation by

[Insert date .. otapproval] in accordance with 5 U.S.C. 552(a) and 1 CFR Part 51.

Copies of the generic DCD may be obtained from [Insert name and address of Copies are also available for examination and copying at the NRC Public Document Room, 2120 L Street NW. (Lower Level), Washington, DC 20555, and for 7

This paragraph was added to indicate that Chapter 16 Technical Specifications will remain part of Tier 2 of the design certification. See NEI Comment, § II.

8 This addition clarifies that only NRC approval is required for changes to Tier 2* and also indicates that all Tier 2* restrictions expire at first full power. See NEI Comments,~ VII.

9 This change identifies the organization from which the DCD may be purchased.

examination at the NRC Library, 11545 Rockville Pike, Rockville, Maryland 20582-2738.

(b) An applicant or licensee referencing this appendix, in accordance with Section 4 of this appendix, shall comply with the requirements of this appendix, including Tier 1 and Tier 2, except as otherwise provided in this appendix.

(c) If there is a conflict between Tier 1 and Tier 2 of the DCD, then Tier 1 controls.

(d) If there is a conflict between the generic DCD and either the application for design certification for the System 80+ design or NUREG-1462, "Final Safety Evaluation Report related to the Certification of the System 80 + Design," dated August 1994 (FSER) and any supplements thereto, then the generic DCD controls.

(e) Conceptual design information and generic technical specifications, as set

4. Applications and licenses referencing this design certification: additional requirements and restrictions.*

(a) An applicant* for a combined license that wishes to reference this Appendix shall, in addition to complying with the requirements of 10 CFR 52.77, 52.78, and 52.79, comply with the following requirements:

(1) Incorporate by reference, as part of its application, this appendix; (2) Include, as part of its application:

(i) A plant-specific DCD containing the same information and utilizing the same organization and numbering as the generic DCD for the System 80 + design, as modified and supplemented by the applicant's exemptions and departures; 10 This change provides additional clarification regarding the use of conceptual design information.

(ii) The reports on departures from and updates to the plant-specific DCD required by Section 1O(b) of this Appendix; (iii) Technical specifications for the plant that are required by § 50.36 and § 50.36a; (iv) Information demonstrating compliance with the site parameters and interface requirements; (v)

(vi) The information required by 10 CFR 52.47(a) that is not within the .scope of this rule; (vii) Descriptions of the initial 120 month in set'Vice testing (IST) and inset'Vice inspection (ISi) pt'Ograms for pumps and valves subject to the test requirements set forth in 10 CPR 50.55a(f), which utili2;e:

(A) Non intrusi:1e techmques available twelve months prior to the date of the COL e.pplice.tiofl to detect degradation and momtor performaflce characteristics of check r1e.lves; and (B) A method to determ.ifle the frequeflcy ftecesse.ry for disassembly and inspection of each pump aftd valve to detect degre.de.tiofl that *.vould preveflt the compofleflt ft-om.

performing its safety function and which cannot be detected through the use of flOfl ifltrusive techniques; 12 (vut) A description of a program for outage planning and control that eftsures:

(A) The availability and ftmctione.l capability during shutdown afld low power operatiofls of features importaflt to safety during such operations; and (B) The considere.tim=i of fire, flood, and other h8:;l;e.rds during shutdown. and low power operation.s; and 13 (ix) A description of a design. reliability assuran.ce program. that:

(A) Includes the program's scope, purpose, a:n.d objectives; 11 This change reflects the provisions in the DCD Introduction. See NEI Comments, § VI.

12 This change deletes the operational applicable regulations that were originally proposed in the April 1995 NOPR. See NEI Comments, § IV.

13 This change deletes the applicable regulations. See NEI Comments, § IV.

(B) E>-1altuttes the structures, systems, ftftd components ifl the desigfl to determioc their degree of risk significance; (C) GeftCfates a list of structures, systems, aRd components desigRated as risk significant; (D) FOi' those struetttres, systems, and compoRents desigRated as risk significaRt, coRsiders both:

(AA) lndttstfy *M:de e,cperumce, aRalytical models, aRd applicable requirements to determine domiRant fail.ttre modes; ftftd (BB) lndttstry wide operational, maiflteflaflce, and moflitoriRg e,cperieRce to ideRtify Irey assttmptions and risk insights from probabilistic, deterministic, and other analytical models; afld (E)

• Coflsiders the dominant failttres modes, iRcorporates the risk insights, and preserves the key assttmptions ideRtified ifl paragraph (a)(2)(i,c)(BB) of this Sectiofl ifl the desigR. 14 (3) Physically include, in the plant-specific DCD, the proprietary information referenced in the System 80 + DCDI~

(4) Implemeflt the desigfl reliability assuraftce program required by paragraph (a)(2)(i,c) of this SectioR. 15 (b) ffllffl!:~!iii~'Hl A holder of a combined licensed that references this appendix shall:***1ii. . .adclttioft to complyiRg with the requiremefltS ifl 10 CPR 52.83, and 52.99 comply with the followiRg requiremeflts: 16 (1) Implement the portions of the 1ST and ISi programs required by paragraph (a)(2)(vii) of this sectiofl, as appro*,ed by the Commissiofl and incl.ttde in each successive 120 month 1ST tcstiRg program non intmsr,e techniques available twer,e months prior to the date of the start of each 120 month interval to detect degradation and monitor performance characteristics of check valves.

(2) Implement the program for outage planniRg and control required by paragraph (a)(2)(viii) of this SectioR; and (3) Implement the desigfl reliability assurance program required by paragraph (a)(2)(ix) of this Section.

14 This change deletes the applicable regulations. See NEI Comments, § IV.

15 This change deletes the applicable regulations. See NEI Comments, § IV.

16 This change deletes the applicable regulations. See NEI Comments, § IV.

(c) Facility operation is not within the scope of this appendix, and the Commission reserves the right to impose requirements for facility operation on holders of licenses referencing this appendix by rule, regulation, order, or license condition; (d) The Commission reserves the right to determine whether, and in what manner this appendix may be referenced by an applicant for a construction permit or operating license under 10 CFR Part 50.

5. Applicable regulations.

(a) Except as indicated in paragraphs (b) and (c) of this section, the regulations that apply to the System 80+ design are in 10 CFR Parts 20, 50, 73, and 100 codified as of [insert the date 30 days after the publication date] that are applicable and technically relevant, as described in the FSER and any associated supplements.

(b) The System 80 + design is exempt from portions of the following regulations, as described in the FSER (index provided in Section 1.6 of the FSER):

(1) Paragraph (f)(2)(iv) of 10 CFR 50.34 - Separate Plant Safety Parameter Display Console; (2) Paragraphs (f)(2)(vii), (viii), (xxvi), and (xxviii) of 10 CFR 50.34 -

Accident Source Terms; (3) Paragraph (f)(2)(viii) of 10 CFR 50.34 - Post-Accident Sampling for Hydrogen, Boron, Chloride, and Dissolved Gases; (4) Paragraph (f)(3)(iv) of 10 CFR 50.34 - Dedicated Containment Penetration; (5) Paragraphs 111.A.l(a) and III.C.3(b) of Appendix J to 10 CFR 50 -

Containment Leakage Testing; and (6) Paragraph Vl(a)(2) of 10 CFR Part 100, Appendix A - Operating Basis Earthquake Design Consideration.

(c) In addition to the regulations specified in paragraph (a) of this section, the following new regulations are applicable for purposes of 10 CPR 52.48, 52.54, 52.59 and 52.63:

(1) The f,

. t lo*w.. ~ssure pre *ptptn-g

• systems aftd subsystems of t.his desigH t.hat

7aee With: ~e reactor coelant pressure bouftda:ry fflUSt be desigood for Of~al operating pressure of at least 40 pel'ceftt of the aoffflal reaetOf

==~l'atlng -~ssure, tot.he exteftt praetical as detel'miHed Oft (iHsert date OmmtSSlOft appt'O"lel].

(2) t.he test reqttiremeftts set forth iH 10 CPR 50 allow for:

fs (6 Piping systems of t.his design associated wit.h um s aftd .. -. .

~al~es _subjeet to

• a fflUSt e estgHed to (i) FuU flow_ testing of ptnnps at maximum desigH flo--*

(ii) ~fti'::" testi~ of cheek '<'fllves at flaws Sttffieient 16 fully 6jlCft the

., ~' pl'ovtcled ~e valve's full opeH positioft caft be positively

: rmed, or w1t.h t.he maximum design basis accideftt flowrate, (iii) Tes~ng of motor opel'atecl valves undel' coftditions as specified in

~ection 3. 9 of t.he DCD, up to design basis differeHtial pressure to be":'"~- the eapabilily of the v11h'es 16 eperate under c1e.;g,,'

as1s coftdttions.

(3) Th cl" . al*

pr;.~;t~;nstrumentation .and contrel systems of this design fflUSt

~~ defense in depth and divel'sity,

~~ ~equate defense against commoft mode failures aftd (tu) tftdepeftdeftt_ ba~ manual cofttrels aftd display's fol' critical saft:ty fuHctiofts 1n the control foom. _ .

(4) ~:. electric powel' system of t.his design must include an altel'nate offsite io wet' source t.hat .has sufficient capacity aftd capability to PfO"ide po--*el' o non safety eq

• b T~utpme1r t suffi etent

• to pl'ovide t.he opel'ator with.* t.he "

cape: I tty to bnn-g the plant to safe shutdown, follo*.vin-g a loss of the nOfmal powel' supply aftd reaetof trip (5) 1:11e ~etrie pow~f system of this design must include at least Ofte offsite

~f~ for supplying power to each redundant safety di-*ision This

~f~tt shall be desigHed suc.h t.hat non safety loads do i:ot ha;.*e e:n .

stgmficant advel'se affect on t.he capability of the off. .t . .

powel' to each safety d i v i s i o f t . s t e etrcutt to provide

~ .

(6) ~!~~~tures, systems, aftd co~oHeftts oft.his design itnpof'taftt to safe o" n, e:xcept for t.he contmnmeftt annulus must be designed to ensure t.hat: '

(i) Safe o fis.hutdcw.*n can *i be ac.hiened .. assuming that all eqtt1pmeftt

. . any 111 Here area wtl be reftdered inopefable by fire aftd re efttry iftto t.he fire area ~of l'ep~~s aftd opel'atOf actioHs is Hot possible, e:xcept t.hat !1tts pro~nstoft does Hot apply to (1) the main cofttr l room, pl'O"t11ded t.hat an alternative shutdowft capability exist~Hd is physically aftd electrically iftdcpeftdeftt of the main. cofttfol room, aftd (2) the reactor cofttain.meftt; (ii) Smoke, hot gases, or fire sttppressaftt will n.ot migrate from on.e fire area in.to an.0th.er to an ex-teftt th.ey could adz1ersely affect safe shutdowa capabilities, iacludiag operator actions; aftd (iii) In th.e reactor cofttain.men.t, reduftdaftt shutdown. systems must be provided with fire protection. capabilities and meaas to limit fire damage such. th.at, to th.e exteftt practicable as of [iasert date of Commissioa approval], on.e shutdown. divisioB be free of fire damage.

(7) The probabilistic risk assessmeftt (PR1\.) required by 10 CFR 52.47(a)(l)(v) must in.elude aa assessmeftt of iftte:raal aftd e:Ktern.al eveftts. For ex-tern.al eveftts, simplified (bouftdin.g) probabilistic methods and margins methods may be used instead of detailed PRA analyses to identify poten.tial vuln.erabilities an.d importan.t safety in.sights for the desiga in order to iaeOfPorale the iasights ia th.e desiga. Simplified bouadin.g risk aaalyses for fires aad floods may be performed v.,rhea detailed design in.formatioa, such as pipe and cable routing, is not twailable. For earthquakes, the seismic margins analysis must be based on a review earthquake level of one and two thirds the acceleration. of th.e safe shutdmvn. earthquake (i.e., review earthquake lC"tel of 0.5g.)

(8) The electric power system of th.is design must in.elude aa on site altcmate AC power source of di-\*erse design capable of pro7tidin.g power to at least on.e complete set of equipmeftt suffieieftt to aehiC"1e and maifttain.

safe shutdmva iH the eveftt of a station. blackout.

(9) For severe aceideftt sequences identified in Section. 19 .11 of th.e DCD, this desigH must iHclttde the follov1in.g desigft features that, in combination. with 0th.er design features, en.sure that environ.mental coadition.s (pressure aad temperature) described iH Section. 19 .11 of the DCD resulting from interactions of molten eore debris with con.tain.meftt structures do Bot exceed ASME Code Service Level C for steel con.tain.meftts or Factored Load Category for concrete contain.men.ts for a time from the initiation. of the aceideftt sequence suffieieftt to mitigate th.em iH view of th.eil' probability of occurrence and the un.certaiftties in severe aceideftt progressioft and phenomenology:

(i) A minimum of 79 m: of uftobstructed reactor cavity floor space for molten core debris spreading; (ii) A system capable of directly or iadirectly flooding th.e reactor cavity for cooling moltea core debris; aad (iii) CoBcrete to protect portions of the eon.tain.meftt liner and the reactor pedestal.

(10) This desigft must iHclude:

(i) a safety related or other highly reliable means to depressurize the reactOf coolaHt system and (ii) cavity design features to reduce the amount of ejected core debris that may reach the upper cofttaiHment.

(11) This design must incltide analyses based on analytical techniques in use as of [iHsett date of Commissioft apf)f<>¥al], to demoHstrate that:

(i) Electrical and mechanical equipment that preT1ents or mitigates the consequcHces of a sei-1ere accident must be capable of performiag their functions for the time period sufficient to pw1ent or mitigate the consequeHces of that severe accident under the eHviroHmental conditions (~, pressure, temperature, radiation) described in Section 19.ll.4.4.l of the DCD for that sei-.,*ere accident; and (ii) Instrumentation that monitors plant conditions during a severe accident must be capable of performing its functioft for a time period sufficient to prevent or mitigate the consequences of that sei-..*ere accident under the environmental conditions (~,

pressure, temperature~ radiation) described in Section 19 .11.4.4.1 of the DCD for that sei-1ere accident.

(12) This design must include design features intended to limit the conditional contaiftment failure probability to less thaft O.1 fo£ the se t'efC accident 7

sequences identified in Section 19 .11 of the DCD.

(13) This desigft must include assessmeHts of:

(i) Features that minimize shutdown risk; (ii) The reliability of decay heat rem<Yt*al systems; (iii) Features that mitigate vulnerabilities resulting from other design featttres; and (iv) Features that assure the operator's ability to shut down the plant safely and maintain it in a safe conditioH in the event of fifes and floods oceurring with the plaHt in modes other than full power.

(14) This desigft must iHclude a systematic ei-_.raluation of plant respoHse to a steam geBCrator tube rupture_ (SGTR) to:

(i) Identify potential design vulnerabilities; (ii) Assess potential design improvements that reduce the amount of contaiHment bypass leakage that could result from a SGTR; and (iii) Incorporate in the design those design improvemeftts that are significant aHd practical aftd do Hot impact excessively Oft the plant.11 17 This change deletes the applicab,e regulations. See NEI Comments, § IV.

6. Issue resolution for this design certification.

(a) The Commission has determined that the structures, systems, components, and design features of the System 80+ design comply with the provisions of the Atomic Energy Act of 1954, as amended, and the applicable regulations identified in Section 5 of this appendix, and therefore, provide adequate protection to the health and safety of the public. A conclusion that a matter is resolved includes the finding that additional or alternative structures, systems,

• components, design features, design criteria, testing, analyses, acceptance criteria, or justifications are not necessary for the System 80 + design.

(b) The Commission considers the following matters resolved within the meaning of 10 CFR 52.63(a)(4) in subsequent proceedings for issuance of a combined license, amendment of a combined license, 8f renewal of a combined license, 11119

~p:~v:=~rn-~-103, (1) All nuclear safety issues associated with the information in the FSER and any associated supplements, the generic DCD (including referenced information which the context indicates is intended as requirements), and the rule making record for certification of the System 80 + design; (2) All nuclear safety issues associated with the information in proprietary documents referenced and in context is intended as requirements in the generic DCD for the System 80 + design; (3) Except 8:S pFovided ia Scetioft 8(b)(5)(vi) of this a:ppeadix, all dep8:ffllres from TiCf 2 pttrsttaHt to and in compliance with the change processes in Sectioa 8(b)(5) of th.is a:ppeadix th.at do aot require priOf' NRC appr<Y1al; 11111ilf,11,111<<1111111,::ntisn:::~:\::in,:::MI~9:¢g#,Qfi¢¢rwitbmlli¢.

18 This change clarifies that finality is also accorded in design certification renewal proceedings. See NEI Comments§ I.

19 This change clarifies that finality applies to plants, not proceedings. See NEI Comments, § I.

20 This change clarifies that changes to Tier 1, Tier 2 *, and Tier 2 are accorded finality if the changes are made in accordance with the change process. See NEI Comments, § I.

(4) All environmental-issues concerning severe accident design alternatives associated with the information in the NRC' s final environmental assessment for the System 80+ and Revision 2 of the Technical Support Document for the System 80+ design, dated January 1995, for plants referencing this appendix whose site parameters are within those (c) Except in accordance with the change processes in Section 8 of this appendix, the Commission may not require an applicant or licensee who references this appendix to:

(1) Modify structures, systems, components, or design features as described in the generic DCD; (2) Provide additional or alternative structures, systems, components, or design features not discussed in the generic DCD; or (3) Provide additional or alternative design criteria, testing, analyses, acceptance criteria, or justification for structures, systems, components, or design features discussed in the generic DCD.

(d) Persons who wish to review proprietary information or other secondary references in the DCD for the System 80 + design, in order to request or participate in the hearing required by 10 CFR 52.85 or the hearing provided under 10 CFR 52.103, or to request or participate in any other hearing relating to the certified design in which interested persons have adjudicatory hearing rights, shall first request access to such information from ABB-CE. The request must state with particularity:

(i) the nature of the proprietary or other information sought; (ii) the reason why the information currently available to the public in the NRC' s public document room is insufficient; (iii) the relevance of the requested information to the hearing issue(s) which the person proposes to raise; and 21 This addition clarifies that severe accident design alternatives (SAMDA) retain finality when an exemption has been issued for a technical support document site parameter absent a showing that the exemption has an adverse impact on the SAMDA. See NEI Comments, § I.F.

(iv) a showing the requesting person has the capability to understand and utilize the requested information.

@, If a person claims that the information is necessary to prepare a request for hearing, the request must be filed no later than 15 days after publication in the Federal Register of the notice required either by 10 CFR 52.85 or 10 CFR 52.103. If ABB-CE declines to provide the information sought, ABB-CE shall send a written response within ten (10) days of receiving the request to the requesting person setting forth with particularity the reasons for its refusal. The person may then request the Commission (or presiding officer, if a proceeding has been established) to order disclosure. The person shall include copies of the original request (and any subsequent clarifying information provided by the requesting party to the applicant) and the applicant's response. The Commission and presiding officer shall base their decisions solely on the person's original request (including any clarifying information provided by the requesting person to ABB-CE), and ABB-CE's response. The Commission and presiding officer may order ABB-CE to provide access to some or all of the requested information, subject to an appropriate non-disclosure agreement.

7.

• Duration of this design certification.

This design certification may be referenced for a period of 15 years from

[insert the date 30 days after the publication date], except as provided for in 10 CFR 52.55(b) and 52.57(b). This design certification remains valid for an applicant 22 This addition is made to clarify the scope of the renewal application and the staffs review. See NEI Comments, §ID.

or licensee who references this appendix until the application is withdrawn or the license expires, including any period of operation under timely renewal or a renewed license.

8. Processes for changes and departures.

(a) Tier 1 information.

(1) Generic changes to Tier 1 information are governed by the requirements in 10 CFR 52.63(a)(l).

(2) Generic changes to Tier 1 information are applicable to all plants referencing the design certification as set forth in 10 CFR 52.63(a)(2).

(3) Departures from Tier 1 information that are imposed by the Commission through plant-specific orders are governed by the requirements in 10 CFR 52.63(a)(3).

(4) Exemptions from Tier 1 information are governed by the requirements in 10 CFR 52.63(b)(l) and § 52.97(b).

(b) Tier 2 information.

(1) Generic changes to Tier 2 information shall be governed by the same requirements in 10 CFR 52.63(a)(l) that govern generic changes to Tier 1.

(2) Generic changes to Tier 2 information are applicable to all plants referencing the design certification as set forth in 10 CFR 52.63(a)(2).

(3) The Commission may not impose new requirements on Tier 2 by plant-specific order while the design certification is in effect under §§ 52.55 or 52.61, unless:

(i) A modification is necessary to secure compliance with the Commission's regulations applicable and in effect at the time the certification was issued, as set forth in Section. 5 of this Appendix, 23 or to assure adequate protection of the public health and safety or the common defense and security; and (ii) Special circumstances as defined in 10 CFR 50.12(a) are present.

(4) An applicant or licensee who references the design certification may request an exemption from Tier 2 information. The Commission may grant such a request only if it determines that the 23 This change reflects the deletion of the additional applicable regulations.

exemption will comply with the requirements of 10 CFR 50.12(a). =Rte gfflmiHg of such an e:x:emption must be subject to litigation in the same (5) (i) An applicant or licensee who references the design certification may depart from Tier 2 information, without prior NRC approval, unless the proposed departure involves a change to or departure from Tier 1 information, Tier 2* information, or the technical specifications, or involves an unreviewed safety question as defined in paragraphs (b)(5)(ii) and (b)(5)(iii) of this section.

When evaluating the proposed departure, an applicant or licensee shall consider all matters described in the plant-specific DCD.

(ii) A proposed departure from Tier 2, othef' thttft Ofte affeetiHg ii¢ml

.~11 . . . . .~;e~~~::~e=:e~~~:~uil.*****

of the plant-specific DCD ineludiHg appendices 19 .1 lA thFough 19 .1 lL, 1iwoh*esf:t!ltiDiitl:::\1t1BifflID\¥RlY!: an unreviewed safety question if:

(A) The probability of occurrence or the consequences of an accident or malfunction of equipment important to safety previously evaluated in the plant-specific DCD may be increased; (B) A possibility for an accident or malfunction of a different type than any evaluated previously in the plant-specific DCD may be created; or (C) The margin of safety as defined in the basis for any technical specification is reduced.

(iii) A proposed departure from Tier 2 affecting resolution of a severe

~~~~e;~,,,,r,i:!!f~!i!!t~!~?~~r,~f~~~~ ~~::d~~ in Section 24 This addition clarifies the hearing requirements associated with issuance of an exemption to Tier 2 information. See NEI Comments, § XI.

25 These changes clarify that all of Chapter 19 should be subject to the "substantial increase" standard in the change process. See NEI Comments, § V.

appcftdiccs 19.llA through 19.llL, involves an unreviewed safety question if:

(A) There is a substantial increase in the probability of a severe

~to be not credible could become credible; or (B) There is a substantial increase in the consequences to the

,

tt~~ti~f:r~~:-u~~;e;:v:~~~nt !l:i:liiiilii:l:mll (iv) If a departure involves an unreviewed safety question as defined in paragraph (b)(5) of this section, it is governed by 10 CFR 50.90 and 5.II92.

(v) A d~p~ure from Tier 2 information that is made under paragraph li:l,i!:::~iii,iiill1111111~111tl11P'::!!!;~'=lltl!t require an exemption from this Appendix.

(vi) A party to an adjudicatory proceeding for either the issuance, amendment, or renewal of a combined license or for operation under 10 CFR 52.103(a), who believes that an applicant or licensee has not complied with paragraph (b)(5) of this Section when departing from Tier 2 information, may petition to admit into the proceeding such a contention. In addition to compliance with the general requirements of 10 CFR 2.714(b)(2), the petition must demonstrate that the departure does not comply with on . the-*has1s* of the petition and any response, the presiding officer determines that a sufficient showing has been made, the presiding officer shall certify the matter directly to the Commission for 26 This change provides that an exemption is not required for departures from Tier 2* that do not involve an unreviewed safety question. See NEI Comments, § XI.C.

27 This change clarifies that there must be a nexus between the asserted non-compliance and the subject of the proceeding.

determination of the admissibility of the contention. The Commission may admit such a contention if it determines the petition raises a genuine issue of iliiif8 fact regarding compliance with paragraph (b)(5) of this Section.

(6) (i) ll1ia.1~:l§i.

designated . wfrh.

90!~~°!e:~! aT~~;n;!n~~s~~=~n~~h~~lf~il.qffl italicized text or brackets and an asterisk in the generic DCD, without prior NRC approval. The departttre will Hot be considered a Tesolved issue, withift the meamn-g of Sectim1 (ii) A holdef of a combiH:ed liceftse may Hot depart from the follo**.vin-g Ticr 2* mattcfs without priof NRC ttppfoval. A request fot, a departure will be trnated as a request fol' a liceftse ameftdmeftt under 10 CPR §§ 50.90 and 50.92.

(A) Equipmeftt seismic qualificatioft methods.

(B) PipiHg desigH acceptaHce criteria.

(C) Fuel burHup limits.

(D) CoHtrol room humaH factors eHgiHeeriHg.

(iii) A holder of a combiHed liceftse may Hot, before the plant fifst achieves full powcr followiHg the fiHdin-g required by 10 CPR 52.103(g), depart from the followiHg Tier 2* matters except in accOTdaHce with paragraph (b)(6)(ii) of this Seetioft. Aftef the 28 This change clarifies that the alleged non-compliance must be material. See NEI Comments, § I. G.

29 This change reflects the expiration of Tier 2

• information at first full power.

See NEI Comments, § VI.

30 This change reflects the expiration of Tier 2

• information at first full power.

See NEI Comments, § VI.

31 These changes reflect the expiration of Tier 2* information at first full power and clarify that departures from Tier 2* only require prior NRC approval; an exemption is not required for Tier 2

• changes that do not involve an unreviewed safety question. See NEI Comments, § VI.

plant first achje,1es full power, the followiRg Tier 2* matters revert to Tier 2 status and are thereafter sttbjeet to the departttre provisions in pamgmph (b)(S) of this Section.

(A) ASME Boiler & Pressure Vessel Cade,Section III.

(B) AISC N 690 and ACI 349 Industrial Codes.

(C) Mot61' aperated valves.

(D) First cycle fuel and control rod design, except buroop limit.

(E) Instrumentation and eontrals setpoint methooolagy.

(F) Instrumentation and cofttfals haro*.yare and softv..*are changes.

(G) Instrumentation and cofttfols ew,ironmental qualification. 32 (h*) Departures from Tier 2* information that are made under paragraph (b)(e) of this section do not require an exemption from this appendix. 33

• The Commission may not modify or rescind existiRg requirements 61' impose fte'tV requirements on either this appendix or a plant referenciRg this appendix, whether Oft the Commission's own motion or iR respoRse to a petition :&om any person, on the basis that either the DCD 61' the refereReiRg plant fails to comply ;vith an additional applicable regulatioft in Section 5(c) of this appendix, unless the Commission determiH:es that:

(1) the failure to comply results iR a substantial reduction in the protection of public health and safety or common defense and security; (2) the Rew requirements pfovide a compensating increase in pfotection oot exceediRg the level of protection originally cmbooicd in the additional application regulation; and (3) the direct and indirect costs of implementation are justified in view of this compensatiRg increase in pfotection. 34 32 This change reflects the expiration of Tier 2

• information at first full power.

See NEI Comments, § VI.

33 This change clarifies that departures from Tier 2* only require prior NRC approval; an exemption is not required. See NEI Comments, § VI.

34 These deletions are necessary to reflect the prior deletion of the applicable regulations. *

9. Inspections, tests, analyses, and acceptance criteria (ITAAC).

(a)(l) An applicant or licensee who references the design certification shall perform and demonstrate conformance with the ITAAC before fuel load.

With respect to activities subject to an ITAAC, an applicant for a COL may proceed at its own risk with design and procurement activities, and a licensee may proceed at its own risk with design, procurement, construction, and preoperational activities, even though the NRC may not yet have found that any particular ITAAC has been satisfied.

(2) The licensee shall notify the NRC that the required inspections, tests, and analyses in the ITAAC have been successfully completed and that the corresponding acceptance criteria have been met.

(3) In the event that an activity is subject to an ITAAC, and the applicant or licensee has Rot demonstrated that the ITAAC has been satisfied, the

~

with Section 8 of this appendix and 10 CPR 52.97(b), or petition for rulemaking to amend this appendix by (?hanging the Fequirements of the ITAAC, under 10 CPR 2.802 aRd 52.97(b). Such rulemaking changes to the ITAAC must meet the requirements of Sectioft 8(t1)(1) of this 35 This addition specifies how changes can be made to the DCD Introduction. See NEI Comments, § VI.

36 This addition specifies how changes can be made to the DCD Introduction. See NEI Comments, § VI.

37 This change clarifies that a COL applicant or holder may either request an exemption from an ITAAC requirement or obtain NRC approval to change the ITAAC in accordance with the change process specified in the rule.

(b)(l) The NRC shall ensure that the required inspections, tests, and analyses in the ITAAC are performed. The NRC shall verify that the inspections, tests, and analyses referenced by the licensee have been successfully completed and, based solely thereon, find the prescribed acceptance criteria have been met. At appropriate intervals during construction, the NRC shall publish notices of the successful completion of ITAAC in the Federal Register.

(2) In accordance with 10 CFR 52.99 and 52.103(g), the Commission shall find that the acceptance criteria in the ITAAC for the combined license are met before fuel load.

(3) After the Commissioft has made the fiHdiHg required by 10 CFR 52 .103 (g), the ITAAC do Hot constitute regulatory requiremeHts either for subsequent plaHt modificatiofts duriHg operatioHs, or for reoowal of the comhiHed liceHse. However, subsequent modifications must comply with the Tier 1 and Tier 2 design dcscriptioHs in the plant specific DCD uHless the liccHscc has complied ;vith the applicable requiremeftts of 10

10. Records and Reporting.

(a) Records.

(1) The applicant for this design certification rule shall maintain a copy of the generic DCD that includes all generic changes to Tier 1 and Tier 2.

The applicant shall maintain the proprietary information referenced in the Rulemaking is not required.

38 These changes are needed to conform with the provisions in the DCD Introduction. See NEI Comments, §VI.

generic DCD for the period that this appendix may be referenced, as specified in Section 7 of this appendix.

(2) An applicant or licensee who references this design certification shall maintain the plant-specific DCD to accurately reflect both generic changes to the generic DCD and plant-specific departures made pursuant to Section 8 of this appendix throughout the period of application and for the term of the license (including any period of renewal).

(3) An applicant or licensee who references this design certification shall prepare and maintain written safety evaluations which provide the bases for the determinations required by Section 8(b) of this appendix. These evaluations must be retained throughout the period of application and for the term of the license (including any period of renewal).

(b) Reporting.

(1) An applicant or licensee who references this design certification rule shall submit a report to the NRC containing a brief description of any departures from the plant-specific DCD, including a summary of the safety evaluation of each. This report must be filed in accordance with the filing requirements applicable to reports in 10 CFR 50.4.

(2) An applicant or licensee shall submit updates to its plant-specific DCD, which reflect the generic changes to the generic DCD and the plant-specific departures made pursuant to Section 8 of this appendix. These updates shall be filed in accordance with the filing requirements applicable to final safety analysis report updates in 10 CFR 50.4 and 50.7l(e).

(3) The reports and updates required by Section l0(b)(l) and (2) above must be submitted as follows:

(i) On the date that an application for a combined license referencing this design certification rule is submitted, the application shall include the report and any updates to the plant-specific DCD.

(ii) During the interval from the date of application to the date of issuance of a combined license, the report and any updates to the plant-specific DCD m:ust be submitted annually and may be submitted along with amendments to the application.

(iii) During the interval from the date of issuance of a combined license to the date the Commission makes its findings under 10 CFR 52.103(g), the report inust be submitted qttarterly ~qi inj.mtlly. 39 Updates to the plant-specific DCD must be submitted annually.

(iv) After the Commission has made its finding under 10 CFR 52.103(g), reports and updates to the plant-specific DCD may be submitted annually or along with updates to the site-specific portion of the final safety analysis report for the facility at the intervals required by 10 CFR 50. 71 (e), or at shorter intervals as specified in the combined license.

39 This change reduces the reporting burden by requiring reports only twice a year instead of four times a year.

ATTACHMENT B ABB-CE's PROPOSED DESIGN CERTIFICATION RULE FOR THE SYSTEM 80+ STANDARD PLANT DESIGN

Appendix B To Part 52 Design Certification Rule for the System 80+ Design

1. Introduction; Appendix B constitutes design certification for the System 80 +

• standard plant design, in accordance with 10 CFR Part 52, Subpart B. The applicant for certification of the System 80+ design was Combustion Engineering, Inc. (ABB-CE).

2. Definitions.

As used in this part:

(a) Generic design control document (generic DCD) means the document that contains the generic Tier 1 and Tier 2 information that is incorporated by reference into this appendix.

(b) Plant-specific DCD means the document, maintained by an applicant or licensee who references this design certification rule, consisting of the information in the generic DCD, as modified and supplemented by the plant-specific departures and exemptions made under Section 8 of this appendix.

- (c) Tier 1 means the portion of the design-related information contained in the generic DCD that is approved and certified by this design certification rule (hereinafter Tier 1 information). Tier 1 information includes:

(1) Definitions and general provisions; (2)

• Certified design descriptions; (3) Inspections, tests, analyses, and acceptance criteria (ITAAC);

(4) Significant site parameters; and (5) Significant interface requirements.

The certified design descriptions, significant site parameters, and significant interface requirements are derived from Tier 2 information, but may be more general than the provisions in Tier 2. Compliance with the more detailed Tier 2 material provides a sufficient, but not the only acceptable, method for complying with the more general provisions in Tier 1 (including the ITAAC). Compliance methods differing from Tier 2 material must satisfy the change process provisions specified in Section 8(b), and such differences shall not negate a COL applicant's or holder's general requirement to reference Tier 2 when referencing Tier 1.

The Design Descriptions in Tier 1 pertain only to the design of structures, systems, and components of the System 80+ standard plant and not to their operation, maintenance, and administration. In the event of an inconsistency between Tier 1 and Tier 2, Tier 1 shall govern. Design activities for structures, systems, and components outside the scope of the System 80 + standard design may be performed using site-specific design parameters.

(d) Tier 2 means the portion of the design-related information contained in the generic DCD that is approved but not certified by this design certification rule (hereinafter Tier 2 information). Tier 2 information includes:

(1) Information required by 10 CFR 52.47; (2) Information required for a final safety analysis report under 10 CFR 50.34; (3) Supporting information on the inspections, tests, and analyses that will be performed to demonstrate that the acceptance criteria in the ITAAC have been met. Compliance with Tier 2 is a sufficient, but not necessarily the only, method for complying with the ITAAC. The provisions and methods specified in Tier 2 shall be followed unless a change is made in the plant specific DCD in accordance with the change processes specified in the design certification rule for the System 80 +

standard design; (4) Combined License (COL) Information Items, which identify certain matters that need to be addressed by an applicant or licensee referencing the design certification rule for the System 80+ standard design. The purpose of these COL License Information Items is to identify the type of information that must be addressed in plant-specific DCDs that reference the design certification rule for the System 80 + standard design. These COL License Information Items do not establish requirements; rather, they identify an acceptable set of information, but not the only acceptable set of information, for inclusion in a plant-specific DCD. An applicant may deviate from or omit these COL License Information Items, provided that the deviation or omission is identified and justified in the plant-specific DCD. After issuance of a construction permit or license, the COL License Information Items have no further effect to that license; instead the corresponding provisions in the plant-specific DCD are applicable; and (5) Proposed technical specifications for the portion of the plant within the scope of the standard design. These proposed technical specifications are applicable to an applicant for a combined license or operating license referencing this design certification rule, and shall be incorporated in the technical specifications in the license, except as changed pursuant to the provisions in Section 8 of this design certification rule that apply to changes to Tier 2 information. Changes in the proposed technical specifications by a license applicant are subject to NRC review and approval and a hearing as part of the license proceeding. After issuance of the combined license or operating license, the proposed technical specifications in Tier 2 have no further effect as to that licensee, and the technical specifications in the license become effective.

(6) References to the System 80+ Standard Safety Analysis Report, which shall not be construed as incorporating these sections, or the information therein, in Tier 2.

(e) Tier 2* means the portion of the Tier 2 information which cannot be changed without prior NRC approval by letter or other written document. This information is identified in the DCD. The restrictions on changes to Tier 2

• information expire at first full power for a plant that references this design certification rule. Thereafter, changes to the Tier 2'" information shall be controlled in the same manner as changes to other Tier 2 information.

(f) All other terms in this appendix have the meaning set out in 10 CFR 50.2, 10 CFR 52.3, or Section 11 of the Atomic Energy Act of 1954, as amended, as applicable.

3. Scope and contents of this design certification.

(a) System 80+ Design Control Document, ABB-CE, dated _ _ is incorporated by reference. This incorporation by reference was approved by the Director of the Office of the Federal Register on [Insert date of approval] in accordance with 5 U.S.C. 552(a) and 1 CFR Part 51. Copies of the generic System 80+ DCD may be purchased from National Technical Information Service, Springfield, VA 22161. Copies are also available for examination and copying at the NRC Public Document Room, 2120 L Street NW. (Lower Level), Washington, DC 20555, and for examination at the NRC Library, 11545 Rockville Pike, Rockville, Maryland 20582-2738.

(b) An applicant or licensee referencing this appendix, in accordance with Section 4 of this appendix, shall comply with the requirements of this appendix, including Tier 1 and Tier 2, except as otherwise provided in this appendix.

(c) If there is a conflict between Tier 1 and Tier 2 of the DCD, then Tier 1 controls.

(d) If there is a conflict between the generic DCD and either the application for design certification for the System 80+ design or NUREG-1462, "Final Safety Evaluation Report related to the Certification of the System 80 + Design," dated August 1994 (FSER) and any supplements thereto, then the generic DCD controls.

(e) As provided in 10 CFR 52.47(a)(l)(ix), conceptual designs provided for those portions of the plant outside the scope of the System 80 + standard design are not part of the design certification rule for the System 80 + standard design, and do not impose requirements applicable to a license, nor to an application for a license, that references the design certification rule;

4. Applications and licenses referencing this design certification: additional requirements and restrictions.

(a) An applicant for a combined license that wishes to reference this Appendix shall, in addition to complying with the requirements of 10 CFR 52.77, 52.78, and 52.79, comply with the following requirements:

(1) Incorporate by reference, as part of its application, this appendix; (2) Include, as part of its application:

(i) A plant-specific DCD containing the same information and utilizing the same organization and numbering as the generic DCD for the System 80 + design, as modified and supplemented by the applicant's exemptions and departures; (ii) The reports on departures from and updates to the plant-specific DCD required by Section l0(b) of this Appendix; (iii) Technical specifications for the plant that are required by § 50.36 and § 50.36a; (iv) Information demonstrating compliance with the site parameters and interface requirements; (v) Information that addresses the COL License Information Items, including justifications for any deviations from or omission of the COL License Information Items; and (vi) The information required by 10 CFR 52.47(a) that is not within the scope of this rule;.

(3) Physically include, in the plant-specific DCD, the proprietary information referenced in the System 80 + DCD.

(b) (Not used.)

(c) Facility operation is not" within the scope of this appendix, and the Commission reserves the right to impose requirements for facility operation on holders of licenses referencing this appendix by rule, regulation, order, or license condition; provided, however, that to the extent the Commission imposes new requirements affecting information in the design certification, it must satisfy the requirements of 10 CFR 52.63 and Section 8 of this Appendix.

(d) The Commission reserves the right to determine in what manner this appendix may be referenced by an applicant for a construction permit or operating license under 10 CFR Part 50.

5. Applicable regulations.

(a) Except as indicated in paragraph (b) of this section, the regulations that apply to the System 80+ design are in 10 CFR Parts 20, 50, 73, and 100 codified as of [insert the date 30 days after the publication date] that are applicable and technically relevant, as described in the FSER and any associated supplements.

(b) The System 80 + design is exempt from portions of the following regulations, as described in the FSER (index provided in Section 1.6 of the FSER):

(1) Paragraph (f)(2)(iv) of 10 CFR 50.34 - Separate Plant Safety Parameter Display Console; (2) Paragraphs (t)(2)(vii), (viii), (xxvi), and (xxviii) of 10 CFR 50.34 -

Accident Source Terms; (3) Paragraph (t)(2)(viii) of 10 CFR 50.34 - Post-Accident Sampling for Hydrogen, Boron, Chloride, and Dissolved Gases; (4) Paragraph (f)(3)(iv) of 10 CFR 50.34 - Dedicated Containment Penetration; (5) Paragraphs iII.A.l(a) and III.C.3(b) of Appendix J to 10 CFR 50 -

Containment Leakage Testing; and (6) Paragraph VI(a)(2) of 10 CFR Part 100, Appendix A - Operating Basis Earthquake Design Consideration.

6. Issue resolution for this design certification.

(a) The Commission has determined that the structures, systems, components, and design features of the System 80+ design comply with the provisions of the Atomic Energy Act of 1954, as amended, and the applicable regulations identified in Section 5 of this appendix, and therefore, provide adequate protection to the health and safety of the public. A conclusion that a matter is resolved includes- the finding that additional or alternative structures, systems, components, design features, design criteria, testing, analyses, acceptance criteria, or justifications *are not necessary for the System 80 + design.

(b) The Commission considers the following matters resolved within the meaning of 10 CFR 52.63(a)(4) in subsequent proceedings for issuance of a combined license, amendment of a combined license, renewal of a combined license, design certification renewal proceedings, proceedings held pursuant to 10 CFR 52.103, and enforcement proceedings involving plants that reference this appendix:

(1) All nuclear safety issues associated with the information in the FSER and any associated supplements, the generic DCD (including referenced information which the context indicates is intended as requirements), and the rulemaking record for certification of the System 80 + design; (2) All nuclear safety issues associated with the information in proprietary documents referenced and in context is intended as requirements in the generic DCD for the System 80 + design; (3) All changes to Tier 1, Tier 2 *, and Tier 2 made in accordance with the change process in Section 8, and; (4) All environmental issues concerning severe accident design alternatives associated with the information in the NRC' s final environmental assessment for the System 80 + and Revision 2 of the Technical Support Document for the System 80+ design, dated January 1995, for plants referencing this appendix whose site parameters are within those specified in the Technical Support Document. If an exemption is sought from a site parameter in the Technical Support Document, a severe accident design alternative will continue to have finality in all subsequent proceedings absent a showing that the exemption has an adverse impact on the specific severe accident design alternative evaluation.

(c) Except in accordance with the change processes in Section 8 of this appendix, the Commission may not require an applicant or licensee who references this appendix to:

(1) Modify structures, systems, components, or design features as described in the generic DCD; (2) Provide additional or alternative structures, systems, components, or design features not discussed in the generic DCD; or (3) Provide additional or alternative design criteria, testing, analyses, acceptance criteria, or justification for structures, systems, components, or design features discussed in the generic DCD.

(d) Persons who wish to review propljetary information or other secondary references in the DCD for the System 80 + design, in order to request or participate in the hearing required by 10 CFR 52.85 or the hearing provided under 10 CFR 52.103, or to request or participate in any other hearing relating to the certified design in which interested persons have adjudicatory hearing rights, shall first request access to such information from ABB-CE. The request must state with particularity:

(i) the nature of the proprietary or other information sought; (ii) the reason why the information currently available to the public in the NRC' s public document room is insufficient; (iii) the relevance of the requested information to the hearing issue(s) which.

the person proposes to raise; and (iv) a showing the requesting person has the capability to understand and utilize the requested information.

If a person claims that the information is necessary to prepare a request for hearing, the request must be filed no later than 15 days after publication in the Federal Register of the notice required either by 10 CFR 52.85 or 10 CFR 52.103. If ABB-CE declines to provide the information sought, ABB-CE shall send a written response within ten (10) days of receiving the request to the requesting person setting forth with particularity the reasons for its refusal. The person may then request the Commission (or presiding officer, if a proceeding has been established) to order disclosure. The person shall include copies of the original request (and any subsequent clarifying information provided by the requesting party to the applicant) and the applicant's response. The Commission and presiding officer shall base their decisions solely on the person's original request (including any clarifying information provided by the requesting person to ABB-CE), and ABB-CE's response. The Commission and presiding officer may order ABB-CE to provide access to some or all of the requested information, subject to an appropriate non-disclosure agreement.

(e) An applicant for design certification renewal shall update the application for design certification. The update shall consist of an amendment of Tables 1. 8-2, 1.8-3, and 1.8-8 of Tier 2 for the System 80+ to identify relevant experience between the time of certification and the renewal application. For each relevant experience, the updated application shall explain whether the standard design adequately accounts for the new experience and, if not, whether the new experience indicates a need for a change in the standard design in order to (1) provide adequate protection of the public health and safety, (2) ensure compliance with NRC regulations in effect at the time of the original certification, or (3) provide a substantial, cost justified increase in safety under 10 CFR 52.59. The NRC review of the renewal application will be limited to the updated data and information and any modifications proposed by the renewal applicant.

7. Duration of this design certification.

This design certification may be referenced for a period of 15 years from

[insert the date 30 days after the publication date], except as provided for in 10 CFR 52.55(b) and 52.57(b). This design certification remains valid for an applicant or licensee who references this appendix until the application is withdrawn or the license expires, including any period of operation under timely renewal or a renewed license.

8. Processes for changes and departures.

(a) Tier 1 information.

(1) Generic changes to Tier 1 information are governed by the requirements in 10 CFR 52.63(a)(l).

(2) Generic changes to Tier 1 information are applicable to all plants referencing the design certification as set forth in 10 CFR 52.63(a)(2).

(3) Departures from Tier 1 information that are imposed by the Commission through plant-specific orders are governed by the requirements in 10 CFR 52.63(a)(3).

(4) Exemptions from Tier 1 information are governed by the requirements in 10 CFR 52.63(b)(l) and § 52.97(b).

(b)

• Tier 2 information.

(1) Generic changes to Tier 2 information shall be governed by the same requirements in 10 CFR 52.63(a)(l) that govern generic changes to Tier 1.

(2) Generic changes to Tier 2 information are applicable to all plants referencing the design certification as set forth in 10 CFR 52.63(a)(2).

(3) The Commission may not impose new requirements on Tier 2 by plant-specific order while the design certification is in effect under §§ 52.55 or 52.61, unless:

(i) A modification is necessary to secure compliance with the Commission's regulations applicable and in effect at the time the certification was issued or to assure adequate protection of the public health and s~fety or the common defense and security; and (ii) Special circumstances as defined in 10 CFR 50.12(a) are present.

(4) An applicant or licensee who references the design certification may request an exemption from Tier 2 information. The Commission may grant such a request only if it determines that the exemption will comply with the requirem.ents of 10 CFR 50.12(a).

Issuance of the exemption to a COL applicant must be subject to litigation during the combined license proceeding in the same manner as other issues material to that proceeding. Issuance of the exemption to a licensee must be subject to an opportunity for a hearing in the same manner as other license amendments.

(5) (i) An applicant or licensee who references the design certification may depart from Tier 2 information, without prior NRC approval, unless the proposed departure involves a change to or departure from Tier 1 information, Tier 2* information, .or the technical specifications, or involves an unreviewed safety question as defined in paragraphs (b)(5)(ii) and (b)(5)(iii) of this section.

When evaluating the proposed departure, an applicant or licensee shall consider all matters described in the plant-specific DCD.

(ii) A proposed departure from Tier 2, except as to its affect on the resolution of a sev~re accident issue or beyond design basis accident identified in Chapter 19 of the plant-specific DCD , shall be deemed to involve an unreviewed safety question if:

(A) The probability of occurrence or the consequences of an accident or malfunction of equipment important to safety previously evaluated in the plant-specific DCD may be increased; (B) A possibility for an accident or malfunction of a different type than any evaluated previously in the plant-specific DCD may be created; or (C) The margin of safety as defined in the basis for any technical specification is reduced.

(iii) A proposed departure from Tier 2 affecting resolution of a severe accident or beyond design basis accident issue identified in Chapter 19 of the plant-specific DCD involves an unreviewed safety question if:

(A) There is a substantial increase in the probability of a severe accident or beyond design basis accident identified in Chapter 19 such that a particular severe accident or beyond design basis accident previously reviewed and determined to be not credible could become credible; or (B) There is a substantial increase in the consequences to the public of a particular severe accident or beyond design basis accident previously reviewed.

(iv) If a departure involves an unreviewed safety question as defined in paragraph (b)(5) of this section, it is governed by 10 CFR 50.90 and 50.92.

(v) A departure from Tier 2 information that is made under paragraph (b)(5) of this section, or a departure from Tier 2* information that does not involve an unreviewed safety question, does not require an exemption from this Appendix.

(vi) A party to an adjudicatory proceeding for either the issuance, amendment, or renewal of a combined license or for operation under 10 CFR 52.103(a), who believes that an applicant or licensee has not complied with paragraph (b)(5) of this Section when departing from Tier 2 information, may petition to admit into the proceeding such a contention. In addition to compliance with the general requirements of 10 CFR 2.714(b)(2), the petition must demonstrate that the departure does not comply with paragraph (b)(5) of this Section. Further, the petition must demonstrate that the change bears on an asserted noncompliance with an ITAAC acceptance criterion in the case of a Section 52.103 preoperational hearing, or that the change bears directly on the amendment request in the case of hearings on a license amendment. Any other party may file a response thereto. If, on the basis of the petition and any response, the presiding officer determines that a sufficient showing has been made, the presiding officer shall certify the matter directly to the Commission for determination of the admissibility of the contention. The Commission may admit such a contention if it determines the petition raises a genuine issue of material fact regarding compliance with paragraph (b)(5) of this Section.

(6) (i) An applicant or holder of a combined license may not, before first full power, depart from Tier 2* designation, which is designated with italicized text or brackets and an asterisk in the generic DCD, without prior NRC approval. After the plant first achieves full power, Tier 2* information expires and has no further effect as to that licensee.

(ii) A departure from Tier 2*.information that does not involve an unreviewed safety question as defined in paragraph (b)(5) of this section does not require an exemption from this Appendix.

(c) Other requirements of this design certification rule.

(1) Generic (rulemaking) changes to the provisions in this Appendix or to the DCD Introduction are governed by the requirements of Subpart H of 10 CFR Part 2.

(2) An applicant or licensee may request an exemption from the provisions in this Appendix or the DCD Introduction in accordance with 10 CFR 50.12(a).

9. Inspections, tests, analyses, and acceptance criteria (ITAAC).

(a)(l) An applicant or licensee who references the design certification shall perform and demonstrate conformance with the ITAAC before fuel load.

With respect to activities subject to an ITAAC, an applicant for a COL may proceed at its own risk with design and procurement activities, and a licensee may proceed at its own risk with design, procurement, construction, and preoperational activities, even though the NRC may not yet have found that any particular ITAAC has been satisfied.

(2) The licensee shall notify the NRC that the required inspections, tests, and analyses in the ITAAC have been successfully completed and that the corresponding acceptance criteria have been met.

(3) In the event that an activity is subject to and in noncompliance with an ITAAC, the applicant for or holder or a COL shall either take corrective actions to successfully complete that ITAAC or request and obtain NRC approval of a change in or exemption from the ITAAC in accordance with the design certification rule for the System 80 + Standard Plant.

(b)(l) The NRC shall ensure that the required inspections, tests, and analyses in the ITAAC are performed. The NRC shall verify that the inspections, tests, and analyses referenced by the licensee have been successfully completed and, based solely thereon, find the prescribed acceptance criteria have been met. At appropriate intervals during construction, the NRC shall publish notices of the successful completion of ITAAC in the Federal Register.

(2) In accordance with 10 CFR 52.99 and 52.103(g), the Commission shall find that the acceptance criteria in the ITAAC for the combined license are met before fuel load.

(3) After the Commission has made* the finding required by 10 CFR 52.103(g), ITAAC no longer constitute regulatory requirements; provided, that as regards to specific ITAAC which are the subject of a Section 103(a) hearing, their expiration shall occur upon final Commission action in such proceeding. However, subsequent modifications must comply with the Tier 1 and Tier 2 design descriptions in the plant-specific DCD unless the licensee has complied with the applicable requirements of Section 8 of this appendix.

10. Records and Reporting.

(a) Records.

(1) The applicant for _this design certification rule shall maintain a copy of the generic DCD that includes all generic changes to Tier 1 and Tier 2.

The applicant shall maintain the proprietary information referenced in the generic DCD for the period that this appendix may be referenced, as specified in Section 7 of this appendix.

(2) An applicant or licensee who references this design certification shall maintain the plant-specific DCD to accurately reflect both generic changes to the generic DCD and plant-specific departures made pursuant to Section 8 of this appendix throughout the period of application and for the term of the license (including any period of renewal).

(3) An applicant or licensee who references this design certification shall prepare and maintain written safety evaluations which provide the bases for the determinations required by Section 8(b) of this appendix. These evaluations must be retained throughout the period of application and for the term of the license (including any period of renewal).

(b) Reporting.

(1) An applicant or licensee who references this design certification rule shall submit a report to the NRC containing a brief description of any departures from the plant-specific DCD, including a summary of the safety evaluation of each. This report must be filed in accordance with the filing requirements applicable to reports in 10 CFR 50.4.

(2) An applicant or licensee shall submit updates to its plant-specific DCD, which reflect the generic changes to the generic DCD and the plant-specific departures made pursuant to Section 8 of this appendix. These updates shall be filed in *accordance with the filing requirements applicable to final safety analysis report updates in 10 CFR 50.4 and 50.7l(e).

(3) The reports and updates required by Section l0(b)(l) and (2) above must be submitted as follows:

(i) On the date that an application for a combined license referencing this design certification rule is submitted, the application shall include the report and any updates to the plant-specific DCD.

(ii) During the interval from the date of application to the date of issuance of a combined license, the report and any updates to the plant-specific DCD must be submitted annually and may be submitted along with amendments to the application.

(iii) During the interval from the date of issuance of a combined license to the date the Commission makes its findings under 10 CFR 52.103(g), the report must be submitted semi-annually. 1 Updates to the plant-specific DCD must be submitted annually.

(iv) After the Commission has made its finding under 10 CFR 52.103(g), reports and updates to the plant-specific DCD may be submitted annually or along with updates to the site-specific portion of the final safety analysis report for the facility at the intervals required by 10 CFR 50. 71 (e), or at shorter intervals as specified in the combined license.

1 This change reduces the reporting burden by requiring reports only twice a year instead of four times a year.

85 ~Kct'fE 5nergy

- - - - - - - - - - - - - - - -GenAr -al - - - - - - - US RC Steven R. Specker Vice President and General Manager Electric Company 175 Curtner Avenue, San Jose, CA 95125 "08 925- 1992, Fx .JOB 925 2-194 (j)

'96 JUL 23 P 3 :49 July 23, 1996 Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Service Branch

Subject:

Comments on the Supplementary Notice of Proposed Rulemaking for the U.S. Advanced Boiling Water Reactor; 61 Fed. Reg. 18099 (April 24, 1996); Docket No.52-001

Dear Sir:

On April 24, 1996, the NRC published a Supplementary Notice of Proposed Rule-making for design certification of the Advanced Boiling Water Reactor (ABWR) under 10 CFR Part 52. The following comments on this draft final rule are being provided by the applicant for design certification of the ABWR, GE Nuclear Energy (GE).

The NRC is nearing completion of a design approval and certification process which began with GE's pioneering application for approval of the ABWR design in Septem-ber of 1987. From the standpoint of technical accomplishment, GE participation in the Part 52 standard design approval process has been an outstanding success.

Specifically, the issuance of the design certification rule certifies and confirms the safety of the GE ABWR design.

The NRC can also take justifiable pride for its contribution to the safety success of the design standardization program to date. We are fully mindful of the substantial staff resources devoted to design safety reviews and of the Commission's own continuing policy guidance throughout this phase of the Part 52 process. What is now required is completion of the Part 52 "compact," namely, adoption of a design certification rule which gives regulatory sanction to what has been resolved during the lengthy and costly design approval phase, and which assures a regulatory process that is hospitable to future licensing use of certified designs by U.S. utilities. What we seek, in sum, is a process which gives practical application to the design stability and licensing predictability objectives of Part 52 and of the Energy Policy Act of 1992.

U.S. NUCLEAR REGUlATOOY COMMISSIOl'-

[X)CKETING & SERVICE SECTION OFFICE OF THE SECRETARY OF THE C. MMISSION jQV /Yl&ss1an, Wdsao

Secretary of the Commission July 23, 1996 Page 2 Regrettably, a number of process provisions proposed for inclusion in the draft final rule are at cross-purposes with those objectives. These provisions are discussed in our comments in Attachment A and, more extensively, in the industry-wide comments submitted by the Nuclear Energy Institute, in the preparation of which GE participated. The dominant concern of these comments is the lack of design finality inherent in the identified draft rule provisions and their adverse impact on Part 52 design stability and licensing predictability. We would emphasize in submitting these comments, that the rule modifications recommended in no way diminish design safety; rather, they address process improvements that support the design stability and licensing predictability objectives of Part 52.

In order to carry out those objectives and assure a licensing framework that will

• enable realization in the U.S. of the safety and economic benefits of its advanced design, GE urges the Commission to modify the draft final rule as recommended in the attached comments and in companion comments submitted by the Nuclear Energy Institute. Based ori those comments, GE is providing a markup of the ABWR draft final rule, identifying the rule changes recommended. This markup is provided.

as Attachment B, with an annotation explaining the basis for the markup. A clean version of the recommended rule is provided as Attachment C.

We respectfully urge the Commission to give careful consideration to our comments and to the recommended changes in the draft final rule.

Sincerely,

\~S. R. Specker

/j

ATTACHMENT A GE'S COMMENTS ON THE DRAFT FINAL DESIGN CERTIFICATION RULE FOR THE ADVANCED BOILING WATER REACTOR (ABWR)

GE assisted the Nuclear Energy Institute (NEI) in preparing its comments on the draft final design certification rules for the ABWR and System 80+. GE is hereby incorporating by reference NEI's comprehensive comments on the draft final design certification rules. The purpose of this attachment is to provide a summary of GE's more important comments and concerns.

The Proposed "Applicable Regulations" Are Unnecessary and Destabilizing In SECY 90-106 and SECY 93-087, the NRC identified a number of positions on severe accidents and other technical issues that are not embodied in current NRC regulations in Part 50, and applied these positions in its review of the ABWR. In the proposed rule, the staff designated fourteen of these positions as "applicable regulations" -- i.e., the staff wants to give these positions a status similar to the status of the Commission's regulations.in Part 50 for the.purpose of issuing the design cert*if f.cation, ... imposing backf its, - renewing - the design certification, and evaluating changes to the DCD. Over strong industry objections to the proposed "applicable regulations" voiced in meetings and in the comments on the proposed rule, the staff modified the standard for imposing compliance backfits with respect to the "applicable regulations" and made word changes to the "applicable regulations" in the draft final rule; none were expunged from the rule. GE believes these changes fall far short of resolving the industry's concerns, calling into question the viability of the entire Part 52 process. Therefore, GE continues to strongly oppose the staff's inclusion of these additional "applicable regulations" in the design certification rule for the ABWR.

GE's reasons for opposing the proposed additional "applicable regulations" were clearly documented in our comments on the proposed design certification rule, and are briefly summarized below. First, the additional "applicable regulations" are unnecessary. Specifically, each of the relevant positions embodied in the a9-ditional "applicable regulations" is covered

[in whole or in part] by requirements in Tier 1, and is also covered in detail in Tier 2. Thus it is not necessary to adopt these additional "applicable regulations" in order to restrict future changes by applicants and licensees.

Second, the staff acknowledges that a principal reason they created this array of "applicable regulations" is to be able to 1

impose backfits on future applicants and licensees. See 60 Fed.

Reg. 17907, 17910 (1995); The staff would not be able to justify the imposition of backfits to these positions under Section 52.63(a) unless the Commission were to give these positions the status of regulations. Thus, the transformation of these positions into "applicable regulations" is specifically intended to enable the staff to circumvent the restrictions on backfits in 10 CFR § 52.63.

Furthermore,_ the staff deliberately drafted the "applicable regulations" using "broadly stated" provisions, thus giving the staff more flexibility to impose backfits. See SECY 92-287A.

Such "broadly stated" provisions are susceptible to new interpretations over time such that the staff could then use the "applicable regulations" and the provisions in 10 CFR § 52.63(a) to require applicants and licensees to make backfits to conform with the staff's new interpretations without any justification based on adequate protection.

The draft final rule does represent an improvement over the proposed rule, in that the draft final rule would permit compliance backfits under the "applicable regulations" only if the staff were to satisfy a cost-benefit standard.

Nevertheless, this improvement does not cure one of the basic flaws in the very concept of "applicable regulations". As discussed in the paper submitted to Chairman Jackson by EPRI on May 1, 1996, the concept of "applic~ble regulations" is inconsistent with the Commission's long-standing policies on advanced reactors. Furthermore, the cost-benefit standard in the draft final rule, though an improvement over the standard in the proposed rule, is still destabilizing and contrary to the goal of Part 52 of design stability.

Finally,_ many of the "applicable regulations" pertain to severe accident issues. Incorporation of these provisions into the rule as "applicable regulations" would enable the staff to impose backfits on the design to make it comply with the staff's new interpretations of these severe accident positions, even if they bear no relationship to adequate protection of the public health and safety. This result is in direct contradiction to the Commission's goal in promulgating Part 52 -- namely, to provide stability for a standard design and predictability to the regulatory process.

As a separate matter, the industry noted in its comments on the proposed design certification rules that some of the additional "applicable regulations" pertained to operational issues and did not address the standard design, and therefore requested that these requirements be deleted from the final rule.

However, in the draft final rule these requirements were not deleted but instead were transferred to Section 4 of the rule.

These requirements should be deleted entirely from the final 2

rule. Specifically, these requirements are not appropriate as "applicable regulations" in Section 5 of the rule, as "operational requirements" in Section 4 of the rule, or as provisions in the DCD. Therefore, they should be removed entirely from the final design certification rule for the ABWR.

In summary, GE believes that the Commission need not and should not identify free-standing additional "applicable regulations" in the design certification rule for the ABWR. The primary purpose of the "applicable regulations" is to enable the staff to impose destabilizing backfits on applicants and licensees, which is contrary to one of the fundamental purposes of Part 52. Therefore, GE urges the Commission to reject the staff's proposal on "applicable regulations."

The Draft Final Rule's Finality Provisions Erode the Certainty and Predictability Envisioned by Part 52 As discussed in our comments on the proposed design certification rules, the concept of "finality" is central to design certification and critical to the stability and predictability of the. Part 52 licensing process. By finality, we mean that matters resolved by the design certification rule, and under the change procedure it prescribes, will not be reopened in later regulatory proceedings and will have the backfit protections specified in 10 CFR Section 52.63(a). In this regard, 10 CFR § 52.63(a) (4) states that "the commission shall treat as resolved those matters resolved in connection with the issuance or renewal of a design certification," and Section 52.63(a) prohibits backfits by the NRC except as necessary for compliance with the NRC regulations in effect at the time of certification or to achieve adequate protection of the public health and safety.

In response to the comments received on the proposed design certification rules, the NRC appropriately took action to broaden the scope of issues accorded finality in the draft final design certification rule for the ABWR. However, the introduction of new positions in the draft final rule and in the workshop on May 2, 1996 continue to erode the certainty and predictability envisioned by Part 52. The draft final rule provides no Section 52.63 backfit protection for NRC approved changes, such as changes to Tier 1, Tier 2*, Tier 2 changes involving Unreviewed Safety Questions (USQs) and the Technical Specifications, or changes to Tier 2 made in accordance with the 50.59-like process.

Additionally, the draft final rule provides no finality to the DCD in a design certification renewal proceeding. To ensure the stability and certainty of the licensing process under Part 52, GE believes that the scope of issues accorded finality and 3

Section 52.63 backfit protection should be expanded to cover these issues. Each is discussed more fully below.

First, the draft final design certification rule for the ABWR states that facility-specific changes to Tier 1, Tier 2*,

changes to Tier 2. that involve an USQ, and changes to the Technical Specifications will not be accorded finality and backfit protection under Section 52.63(a) .11 These changes, we would emphasize, are sanctioned by the certification rules -- for valid facility-specific purposes if made in accordance with prescribed change processes that require prior NRC approval and a public hearing opportunity. GE believes that there are two overwhelming reasons such changes should have finality under Section 52.63. First, the staff's proposal would have the effect of applying a different backfit standard to different components within the scope of the ABWR standard design, i.e., unchanged components would be subject to Section 52.63 whereas modified components would be subject to Section 50 .109 .'2:.1 Such a complex system would be unmanageable and have a high potential for confusion. Second, the staff's proposal would have the unintended consequence of discouraging the industry from making changes that increase the safety or effectiveness of the design.

Therefore, tq prevent unnecessary uncertainty and instability, and to retain the benefits of Part 52, the Commission should modify the draft final design certification rule** for the ABWR to accord finality under Section 52.63(a) to changes that were approved by the NRC and subject to an opportunity for public hearing.

1/ See Statement of Considerations Paragraphs II.A.1 and II. B. 7; Rule Sections 6 (b) (3) and 8 (b) ( 6) ( i) ; and statements by the NRC deputy general counsel at the NRC workshop on May 2 , 19 9 6 ( Tr . 6 2 - 6 3 ) .

'2:./ The Section 52.63 and 50.109 standards are materially different. Section 52.63(a) allows the Commission to impose backfits only when it determines "in a rulemaking that a modification is necessary either to bring the certification or the referencing plant into compliance with the Commission's regulations applicable and in effect at the time the certification was issued, or to assure adequate protection of the public health and safety." In addition to these criteria, Section 50.109(a) (3) also allows backfits in those situations where an analysis shows that there is a "substantial increase in the overall protection of the public health and safety or the common defense and security to be derived from the backfit and that the direct and indirect costs of implementation for that facility are justified in view of this increased protection."

4

Second, Section 6(b) (3) of the draft final rule appropriately states that changes made in accordance with the

§ 50.59-like process have Section 52.63 backfit protection.

However, during the workshop on May 2, 1996, the NRC deputy general counsel stated that it may not be appropriate to give such protection to§ 50.59-like changes (Tr. 42-47). GE believes that it is important to provide Section 52.63 backfit protection to changes made under the§ 50.59-like process. Such changes would not adversely affect the safety of the standard design as approved by the NRC and are plainly within the envelope of the NRC's safety finding, as the Statement of Considerations*

explanation for Section 6(b) (3) makes clear. As such, they are entitled to finality and protection under Section 52.63 against backfits. Therefore, the Commission should continue to include a Section 6(b) (3) in order to provide finality to§ 50.59-like changes.

Finally, the draft final design certification rule provides no finality for the DCD in design certification renewal proceedings, stating that it "would not be appropriate" to do so.

The NRC staff confirmed this position at the May 2, 1996 workshop stating that a de novo review of the standard design was required at the design certification renewal stage. (Tr. 52-55). For the following reasons, GE strongly opposes this position.

As explained in detail in the NEI comments, the requirement for a de novo review is contrary to the basic structure for design certification renewal in the Commission's regulations.

When the standard design is unchanged from the time of the design certification, a de novo review of the design is unnecessary at the time of renewal because the Commission has already determined at the design certification stage that the standard design complies with the Atomic Energy Act and the Commission's regulations "in effect at the*time the certification was issued,"

as required by Section 52.59. If modifications have been made to the original certified design, Section 52.59 provides that the NRC is to review the changes based upon the provision in the Atomic Energy Act* and the Commission's regulations in effect "at the time of renewal." Finally, if substantial changes in the design have been made such that the request for renewal essentially constitutes a request for approval of a new standard design, Section 52.59 states that "an application for a design certification shall be filed in accordance with§§ 52.45 and 52.47 of this part." Only in this later case, would a de novo review of the design be appropriate.

Without the presence of substantial changes, a de novo review would be a wasteful expenditure of industry and NRC resources, and would also undermine the Part 52 goals for early resolution of licensing issues and providing a stable and predictable regulatory process. Furthermore, if a de novo review were to be required for renewal of a design certification, there 5

would be no practical value to seeking renewal rather than applying for a new certification. We believe that a different renewal course should be adopted, one which is fully consistent with the finality premise of Section 52.63(a). Renewal review should focus on:

• Updated data and information in the renewal application, as described in NEI comments.on the matter of design certification renewal; and

• Modifications in the design certification, if any are proposed by the renewal applicant or by the NRC, consistent with Part 52 requirements as described above.

Should the Commission decide to defer addressing the matter of renewal review as suggested by Mr. Russell at the July 15, 1996 public meeting, we urge that it do so on a basis, and with an explanation, that does not preclude future consideration of the scope of issue finality in the renewal process.

Section 4(c) Would Allow Unrestricted Backfits in Violation of the Finality Provisions of Part 52

. Section 4 (c). of the. draft final rule states that the NRC reserves the right 'to impose requirements 'for facility operation on holders of licenses referencing the design certification. In SECY-96-077, the Statement of Considerations for the draft final rule, and in meetings with the industry, the NRC staff has stated that Section 4(c) would enable the staff to impose backfits on the DCD based upon operating experience.11 As such, this provision is totally inconsistent with Section 52.63 and the purpose of Part 52.

When the Commission issued Part 52, it made the determination that the NRC should not be able to impose backfits on the design certification except as necessary for adequate protection of safety or compliance with NRC regulations in effect at the time of certification. This policy decision is embodied in Section 52.63(a). Section 4(c), in effect, eliminates the protection provided by Section 52.63. The NRC would be able to use Section 4(c) to impose backfits on the provisions in the DCD by linking the backfit to operational experience. As a result, Section 4(c), as written, totally undercuts the fundamental l/ At the meeting on July 15, 1996, the NRC staff stated that it was not their intent to impose backfits on the design.

This intent is not reflected in the language of Section 4 (c) .

6

purposes of Part 52 -- namely, design stability and early resolution of licensing issues.

Section 4(c) should be clarified by stating that it pertains to matters outside the scope of the standard design and that, to the extent the Commission imposes new requirements that affect information in the design certification, the backfit restrictions in Section 52.63 and Section 8 of the rule shall apply.

The Technical Specifications Should Have Finality In the proposed design certification rules, the NRC proposed that a plant that references a design certification would have two sets of technical specifications associated with its license.

The first set of technical specifications would be based on Chapter 16 of Tier 2 of the DCD and would be applicable to the standardized portion of the plant, and the second set would be those technical specifications applicable to the site-specific portion of the plant. The staff also stated that each set of technical specifications would be subject to a different change process. The industry found this arrangement to be unnecessarily complex and believed it would inevitably lead to confusion on the part of both licensees and NRC personnel who would be responsible for implementing and overseeing the technical specifications. As a result, the industry submitted comments stating that there should only be one set of technical specifications, and that this set should be subject to just one change process.

The Statement of Considerations for the draft final rule agreed that there should be one set of technical specifications subject to one process. However, contrary to the industry's intent, the draft final rule states that the technical specifications i~ the DCD will not have finality. GE believes the Commission should provide finality to the technical specifications in the DCD~

At the request of the NRC staff, GE spent considerable time and resources preparing technical specifications for the ABWR.

Similarly, the NRC expended substantial effort reviewing the technical specifications, and the technical specifications were explicitly approved in the NRC's Final Safety Evaluation Report and the Final Design Approval. By definition, the technical specifications are a "matter resolved" under Section 52.63 and are entitled to finality. It is contrary to both the purpose of Part 52 and administrative efficiency to subject these technical specifications to re-review and re-litigation in license application proceedings.

GE is particularly concerned with the staff's comments during the May 2, 1996 workshop that it does not want to provide finality to the technical specifications because it wants to be 7

able to impose changes to account for subsequent operating experience. This position is contrary to the Commission's policy decision in Part 52 that matters approved during design certification should not be subject to re-review and re-litigation based upon subsequent operating experience, unless the stringent criteria in Section 52.63 are satisfied.

Based on the above, GE supports NEI's proposal that the technical specifications in the DCD shall have finality and be used by a license applicant to develop a single, integrated set of technical specifications for submittal with license applications. This integrated set of technical specifications would include the technical specifications in Chapter 16 of Tier 2, including any proposed changes, and the supplementary site-specific technical specifications developed by the applicant. To the extent the integrated technical specifications conform to those in the DCD, they would have finality and would not be subject to re-review or re-litigation. Thus only proposed changes and the site-specific portion of the technical specifications would be subject to NRC review and a hearing as part of the COL proceeding.

. . After. :the lic~nse iEI granted, the .technical Elp~cifications

{ri the DCD 'would' no.'longer* have any reiev'ahce *to tbe iicense, and there would be 'a si'rigle se't of technical' 'specifications that ,

would be controlled by the Section 50.90 license amendment process and subject to the._backfit provisions in Section 50.109.

Thus, NEI's proposal provides for finality of the approved technical specifications in the DCD and ensures creation of a single set of technical specifications subject to a single change process. This approach is consistent with the goals of early issue resolution, standardization, and licensing stability, and also creates a workable product for use by licensees and the NRC during operations of a plant.

In summary, after requiring GE to prepare the technical specifications, and after approving the technical specifications, it would be totally inconsistent with Part 52 to deprive the technical specifications of finality. Both equity and the goals of Part 52 demand that the technical specifications be afforded finality -- similarly to the rest of the DCD.

The Change Process As Applied to Severe Accidents Is Unnecessary, Inappropriate, and Unduly Burdensome In our comments on the proposed design certification rules, GE strenuously objected to the change process as it relates to the severe accident information contained in Chapter 19 of the DCD. GE agreed with the industry that it was inappropriate to apply the change process to all of the evaluations in Chapter 19, and instead recommended that the change process with respect to 8

severe accidents be limited to the important features identified in Section 19.8 for the ABWR and Section 19.15 for the System 80+. Alternatively, if the NRC were to make all of Chapter 19 subject to the§ 50.59-like change process, the industry recommended that all of Chapter 19 be subject to the standards applicable to severe accidents rather than the standards applicable to design basis accidents. In issuing the draft final rules, the staff *rejected the industry's comments. The draft final rules state that all of the evaluations of severe accidents and beyond-design-basis-accidents in Chapter 19 will be subject to the standards applicable to design basis accidents, except for those evaluations in Section 19E for the ABWR and Section 19.11 for the System 80+. For these sections, a change would constitute an USQ only if there is a "substantial increase" in the probability or consequences of the accidents evaluated therein.

Chapter 19 contains evaluations of severe accidents and other conditions of extremely low probability that are beyond the design basis. Under the staff's proposal in SECY-96-077,i/

changes in Chapter 19 (except for changes in Section 19E for the ABWR) causing minor increases in probability or consequences for these accidents will constitute unreviewed safety questions and require license amendments and opportunities.for puplic hearing without a commensurate safety benefit. Given the extremely low probability of the severe accidents throughout Chapter 19, it is inappropriate to subject this information to the same change process as design basis information. The staff's proposal is not necessary to protect safety because a small increase in probability or cqnsequences of a severe accident would have no adverse impact on safety, and would not affect the NRC's safety finding. Furthermore, the staff's proposal would impose undue administrative burdens on the NRC and licensees because it would require a license amendment for such changes. Consequently, the Commission should modify Section 8(b) (5) of the rule to apply the "substantial increase" standard to all of Chapter 19.

The Rule Should Incorporate All Substantive Provisions From the DCD Introduction In our comments on the proposed design certification rule, we specifically requested the Commission to incorporate the substantive provisions of the DCD Introduction in the final design certification rule. GE's position was based on the i/ During the meeting on July 15, *1996, senior NRC management appeared to agree with the industry that all of the severe accident and beyond-design-basis accidents evaluations in Chapter 19 should be subject to the "substantial increase" standards.

9

extensive effort that had been expended by both GE*and the staff in developing the DCD Introduction, and the fact that it had been reviewed and approved word-for-word by the staff and the Office of General Counsel (OGC). In response, the staff modified the draft final rule to include some provisions from the DCD Introductions. However, in some cases,. the wording of these provisions was modified from that provided in the DCD Introduction.. Further, there were other instances .where the substantive provisions from the DCD Introduction were not incorporated at* all in the draft final rule.

GE is concerned that the staff's response does not address the fundamental point of our comments -- that the DCD Introduction contains substantive provisions for interpreting and controlling* the DCD that should be given the force of a regulation. The failure of the staff to incorporate all of the substantive provisions from the DCD Introduction into the rule will create the potential for needless confusion and conflict in the future. Therefore, GE continues to urge the Commission to adopt the language in the DCD Introduction as jointly agreed upon by the industry, the staff and OGC in 1994, except where a language change is called for to be consistent with changed provisions in the final rules (i.e., provisions dealing with the finality status of proprietary and safeguards information, and with the time of ITAAC expiration for regulatory purposes).

Based upon the staff's statements at the meeting on July 15, 1996, we understand that the staff now agrees to do so.

The Commission Should Not Foreclose Referencing Of the Design Certification By Part 50 Applicants The industry's comments on the proposed rules stated that a Part 50 license applicant should be able to reference a design certification. The basis for this position was the explicit provisions in Part 52 which recognize the ability of a Part 50 applicant to reference a design certification. Additionally, the industry believes it is important to retain the Part 50 licensing option as a fall-back alternative in the event that the Part 52 process proves difficult or impossible to implement. See NEI comments on the proposed rules at Section X.

Nevertheless, the draft final design certification rule appears to provide the Commission the option to remove altogether a Part 50 applicant's ability to utilize the design certification. Such a position is contrary to the explicit provisions in Part 52. As a result, GE requests that the Commission reiterate that the design certification may be used by a Part 50 applicant, with only the manner of such usage to be determined at a later time. Based upon the statements by the staff at the meeting on July 15, 1996, we understanq that the staff agrees.

10

In Reconciling the Differences Between the Two Proposed Rules, the NRC Staff Inappropriately Expanded Matters Subject to Tier* 2* Change Restrictions After First Full Power In the industry comments on the notice of proposed rulemaking, it was noted that NRC staff had treated the two designs inconsistently. Specifically, the DCD Introduction for the ABWR certified design continued the Tier 2* change restrictions after first full power for equipment seismic qualification methods and for reactor core acceptance criteria, however, similar restrictions were not imposed in the DCD Introduction for the System 80+ certified design. As a result, the industry comments requested that the final rule recognize that all Tier 2* change restrictions should expire at first full power for both certified designs, and also requested NRC staff to modify the DCD Introduction for both certified designs to provide for consistent treatment of the Tier 2* change restriction expiration period.

Although the NRC staff claims to have resolved this discrepancy in the draft final rules for both certified designs, the inconsistencies remain. As noted above, the Tier 2* change restrictions will remain in effect after first full power for holders of a combined license for the ABWR certified design in the areas of fuel licensing acceptance criteria and control rod licensing acceptance criteria. Neither of these matters remain subject to Tier 2* change restrictions after first full power for holders of a combined license for the System 80+ certified design. It is also unclear whether there is a difference, and if so what the difference entails, between the continuation of the Tier 2* change restrictions on control room human factors performance for the System 80+ certified design versus human factors engineering design and implementation process for the ABWR certified design.

The proposed Statements of Consideration in SECY-96-077 that would accompany the promulgation of the design certification rulemaking for both System 80+ and ABWR, noted that

• NRC agrees with NEI that expiration of Tier 2* information for the two evolutionary designs should be consistent, unless there is a design-specific reason for the different treatment.

SECY-96-077, Att. 1, at 11 (ABWR), and Att. 5, at 11 (System 80+). The discrepancy involving equipment seismic qualification methodology was resolved the by NRC staff by continuing the Tier 2* change restrictions after first full power for both certified designs. However, the NRC staff did not articulate any need for such a continued restriction for either certified design.

11

Furthermore, there is no reason to retain the discrepancy regarding acceptance criteria for fuel and control rods. The existing controls on Tier 2 changes will ensure that, after initial start-up, any change in the criteria which adversely affects safety will be subject to prior NRC approval.

In sum, as noted in industry's comments on the notice of proposed rulemaking, the continuation of the Tier 2* change restrictions after first full power should be consistent between the two certified designs, i.e., all such restrictions should expire.

GE Endorses NEI's Comments on Other Issues GE fully supports and endorses NEI's comments on the draft final design certification rules, including its comments on topics not explicitly discussed above. In particular:

• There is substantial merit in the industry proposal to allow design certification applicants to make Tier 2 changes using the 50.59-type change process prior to submission of the first referencing license application. If the Commission decides to defer this matter, the Statement of Considerations should be modified to reflect NRC openness to consideration of a post-design certification change process and related issues after issuance of the design certification rule.

• The Tier 2* provisions should expire at first full power.

• The Statement of Considerations should be reworded to clarify that only relevant and material quality assurance deficiencies may be considered in verifying compliance with an ITAAC.

Conclusions The industry and NRC are nearing completion of the design approval and certification process for the ABWR design. This project has been a technical success in that the ABWR is the safest and most standardized design ever approved by the NRC.

Unfortunately, a number of process provisions included in the draft final design certification rule for the ABWR are inconsistent with the basic objectives of Part 52. Specifically, deficiencies with respect to issue finality and needed backfit protections, as described herein, undermine the Part 52 goals of design stability and licensing predictability, thereby undermining the rule's value to potential customers. GE urges the Commission to modify the draft final rule as recommended in 12

these comments and in the companion comments submitted by the Nuclear Energy Institute.

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ATTACHMENT B GE's SUGGESTED REVISIONS TO THE LANGUAGE OF THE DRAFT FINAL DESIGN CERTIFICATION RULE FOR THE ABWR This attachment provides GE's suggested changes to the language of the draft final design certification rule for the ABWR. This attachment identifies GE's suggested additions and deletions. Each change has an associated footnote which explains GE's reasons for the change.

Attachment B

Appendix A To Part 52--Design Certification Rule for the U.S. Advanced Boiling Water Reactor

1. Introduction.

Appendix A constitutes the standard design certification for the U.S. Advanced Boiling Water Reactor (ABWR) *design, in accordance with 10 CFR Part 52, Subpart B. The applicant for certification of the U.S. ABWR design was GE Nuclear Energy.

2. Definitions.

As used in this part:

(a) Generic design control document (generic DCD) means the document that contains the generic Tier 1 and Tier 2 information that is incorporated by reference into this appendix.

(b) Plant-specific DCD means the document, maintained by an applicant or licensee who references this design certification rule, consisting of the information in the generic DCD, as modified and supplemented by the plant-specific departures and exemptions made under Section 8 of this appendix.

(c) Tier 1 means the portion of the design-related information contained in the generic DCD that is approved and certified by this design certification rule (hereinafter Tier 1 information). -f!Phe design descriptidns, interface requirefflents, and site paraffleters are derived froffl Tier 2 inforfflation.] 1 Tier 1 information includes:

(1) Definitions and general provisions; (2) [Design] Certified design2 descriptions; (3) Inspections, tests, analyses, and acceptance criteria (ITAAC);

(4) Significant site parameters; and (5) Significant interface requirements.

The certified design descriptions, significant interface requirements, and significant site parameters are derived from This language is replaced by language provided below to conform with the provisions in the DCD Introduction. See NEI Comments, § VI.

2 This addition clarifies that Tier 1 includes only the certified design descriptions.

2 Attachment B

Tier 2 information, but may be more general than the provisions in Tier 2. Compliance with the more detailed Tier 2 material provides a sufficient, but not the only acceptable, method for complying with the more general provisions in Tier 1 (including the ITAAC).

Compliance methods differing from Tier 2 material must satisfy the change process provisions specified in Section 8 (b) , and such differences shall not negate a COL applicant's or holder's general requirement to reference Tier 2 when referencing Tier 1.

The Design Descriptions in Tier 1 pertain only to the design of structures, systems, and components of the ABWR standard plant and not to their operation, maintenance, and administration. In the event of an inconsistency between Tier 1 and Tier 2, Tier 1 shall govern. Design activities for structures, systems, and components outside the scope of the ABWR standard design may be performed using site-specific design parameters. 3 (d) Tier 2 means the portion of the design-related information contained in the generic DCD that is approved but not certified by this design certification rule (hereinafter Tier 2 information).

[Compliance with Tier :a is required, but generic changes to and plant specific departures from Tier 2 arc governed by Section 8 of this appendiJc.]

• 4 Tier 2 information includes:

(1) Information required by 10 CFR 52 .47 [, *with the cJEception of technical specifications and conceptual design information];

(2) Information required for a final safety analysis report under 10 CFR 50.34; (3) Supporting information on the inspections, tests, and analyses that will be performed to demonstrate that the acceptance criteria in the ITAAC have been met[, and]. Compliance with Tier 2 is a sufficient, but not necessarily the only, method for complying with the ITAAC. The provisions and methods specified in Tier 2 shall be followed unless a change is made in the plant-specific DCD in accordance with the change processes specified in the design certification rule for the ABWR; 5

[( 4) Combined license (COL) action items (COL license These additions reflect provisions in the DCD Introduction that have been approved by the NRC. These provisions are needed if the NRC does not incorporate the DCD Introduction into the design certification rule. See NEI Comments, § VI.

4 This language was deleted because it is not consistent with the DCD Introduction. See NEI Comments, § VI.

s This language was added to clarify the role of Tier 2 information in complying with the ITAAC, as provided in the DCD Introduction. See NEI Comments, § VI.

3 Attachment B

information)] (4) Combined License (COL) Information Items, which identify certain matters that [shall be addressed in the site specific portion of the final safety analysis report by an applicant who references this appendile. These items constitute information requirements but do not otherwise constitute substantive requirements for judging the adequacy of the information submitted] need to be addressed by an applicant or licensee referencing the design certification rule for the ABWR.

The purpose of these COL License Information Items is to identify the type of information that must be addressed in plant-specific Design Control Documents (DCD) that reference the design certification rule for the ABWR. These COL License Information Items do not establish reguirements; rather they identify an acceptable set of information, but not the only acceptable set of information, for inclusion in a plant-specific DCD. An applicant may deviate from or omit these COL License Information Items, provided that the deviation or omission is identified and justified in the plant-specific DCD. After issuance of a construction permit or license, the COL License Information Items have no further effect to that licensee; instead, the corresponding provisions in the plant-specific DCD are applicable; 6 (5) Proposed technical specifications for the Dortion of the plant within the scope of the standard design. These proDosed technical specifications are applicable to an applicant for a combined license or operating license referencing this design certification rule, and shall be incorporated in the technical specifications in the license, except as changed pursuant to the provisions in Section 8 of this design certification rule that apply to changes to Tier 2 information. Changes in the proposed technical specifications by a license applicant are subject to NRC review and approval and a hearing as part of the license proceeding. After issuance of the combined license or operating license, the proposed technical specifications in Tier 2 have no further effect as to that licensee, and the technical specifications in the license become effective. 1 (6) References to the ABWR Standard Safety Analysis ReDort, which shall not be construed as incorporating these sections, or 6

These changes and additions reflect the provisions in the DCD Introduction, modified to conform to final rule provisions, which have been approved by the NRC. These provisions are necessary if the NRC does not incorporate the DCD Introduction by reference into the design certification rule. See NEI Comments, § VI.

7 This paragraph was added to indicate that the Chapter 16 technical Specifications will remain part of Tier 2 of the design certification. See NEI Comments, § II.

4 Attachment B

the information therein, in Tier 2. 8 (e) Tier 2* means the portion of the Tier 2 information-E, designated as such in the generic DCD, which is subject to the change process in Section 8 (b) (6) of this appendi:ic. This designation e:icpires for some] which cannot be changed without prior NRC approval by letter or other written document. This information is identified in the DCD. The restrictions on changes to Tier 2 information [pursuant to Section 8 (b) (6)] expire at first full power for a plant that references this design certification rule. Thereafter, changes to the Tier 2* information shall be controlled in the same manner as changes to other Tier 2 information.

(f) All other terms in this appendix have the meaning set out in 10 CFR 50.2, 10 CFR 52.3, or Section 11 of the Atomic Energy Act of 1954, as amended, as applicable.

3. Scope and contents of this design certification.

(a) [Tier 1 and Tier 2 in the] The U.S. ABWR Design Control Document, GE Nuclear Energy, Revisio~ [are approved for] is incorporated by reference. This incorporation by reference was approved by the Director of the Office of the Federal Register on

[Insert date of approval] in accordance with 5 u.s.c. 552(a) and 1 CFR Part 51. . Copies

• of the generic [DCD may be obtained from

[Insert name and address of applicant or organizmtion designated by the applicant)) U.S. ABWR DCD may be purchased from National Technical Information Service, Springfield, VA 22161. 10 Copies are also available for examination and copying at the NRC Public Document Room, 2120 L Street NW. (Lower Level), Washington, DC 20555, and for examination at the NRC Library, 11545 Rockville Pike, Rockville, Maryland 20582-2738.

(b) An applicant or licensee referencing this appendix, in accordance with Section 4 of this appendix, shall comply with the requirements of this appendix, including Tier 1 and Tier 2, except as otherwise provided in this appendix.

(c) If there is a conflict between Tier 1 and Tier 2 of the These additions reflect the provisions in the DCD Introduction which have been approved by the NRC. These provisions are necessary if the NRC does not incorporate the DCD Introduction by reference into the design certification rule. See NEI Comments, § VI.

9 This addition clarifies that only NRC approval is required for changes to Tier 2* and also indicates that all Tier 2* restrictions expire at first full power. See NEI Comments, § VII.

10 This change identifies the organization from which the DCD may be purchased.

5 Attachment B

DCD, then Tier 1 controls.

(d) If there is a conflict between the generic DCD and either the application for design certification for the U.S. ABWR design or NUREG-1503, "Final Safety Evaluation Report related to the Certification of the Advanced Boiling Water Reactor Design," dated July 1994 (FSER) and any supplements thereto, then the generic DCD controls.

(e) [Conceptual design information and generic technical specifications, as set forth in the generic DCD, are not part of this appendiJe.] As provided in 10 CFR 52.47(a) (1) (ix), conceptual designs provided for those portions of the plant outside the scope of the ABWR standard design are not part of the design certification rule for the ABWR standard design, and do not impose requirements applicable to a license, nor to an application for a license, that references the design certification rule; 11

4. Applications and licenses referencing this design certification:

additional requirements and restrictions.

(a) An applicant for a combined license that wishes to reference this Appendix shall, in addition to complying with the requirements of 10 CFR 52. 77, *52. 78, and 52. 79, comply with the following requir~ments:

(1) Incorporate by refer~nce, as part of its* application, this appendix; (2) Include, as part of its application:

(i) A plant-specific DCD containing the same information and utilizing the same organization and numbering as the generic DCD for the U.S. ABWR design, as modified and supplemented by the applicant's exemptions and departures; (ii) The reports on departures from and updates to the plant-specific DCD required by Section l0(b) of this Appendix; (iii) Technical specifications for the plant that are required by

§ 50.36 and§ 50.36a; (iv) Information demonstrating compliance with the site parameters and interface requirements; (v) Information that addresses the COL [action items] License Information Items, including justifications for any deviations from 11 This change provides additional clarification regarding the use of conceptual design information, as provided in the DCD Introduction.

See NEI Comments, § VI.

6 Attachment B

12 or omissions of the COL License Information Items  ; and (vi) The information require,d by 10 CFR 52. 47 (a) that is not within the scope of this rule.

[ (vii) Descriptions of the initial 12Q month in service testing (IST) and in service inspection (ISI) programs for pumps and valves subject to the test requirements set forth in 10 CFR 50.SSa(f),

>v.*hieh utilisrn.

(A) Non intrusive techniques available twelve months prior to the date of the COL application to detect degradation and monitor performance eharaeteriotieo of cheek valves, and (B) A method to determine the frequency necessary for disassembly and inspection of each pump and valve to detect degradation that would prevent the component from performing its safety function and which cannot be detected through the use of non intrusive techniques, (viii) A description of a program for outage planning and control that ensures.

(A) The availability and functional capability during shutdown and lmi power operations of features important to safety during ouch operations, and (B) The consideration of fire, flood, and other hazards during shutdown and low power operations, and (ix) A description of a design reliability assurance program that.

(A) Includes the ,program's scope, purpose, and objectives, (B) Evaluates the structures, systems, and components in the design, to determine their degree of risk significance, (C) Generates a list of structures, systems, and components designated as risk significant, (D) For those structures, systems, and components designated as risk significant, considers both.

(AA) Industry wide mcperienee, analytical models, and applicable requirements to determine dominant failure modes, and (BB) Industry wide operational, maintenance, and monitoring eJCperienee to identify key assumptions and risk insights from probabilistic, deterministic, and other analytical methods, and 12 This change reflects the provisions in the DCD Introduction. See NEI Comments, § VI.

7 Attachment B

(B) Considers the dominant failure modes, incorporates the risk insights, and preserves the key assumptions identified in paragraph (a) (2) (ix) (BB) of this Section in the design.] D (3) Physically include, in the plant-specific DCD, the proprietary information and safeguards information referenced in the U.S. ABWR DCD; and

[ (4) Implement the design reliability assurance program required by paragraph (a) (2) (ix) of this Section.

(b) A holder of a combined license that references this appendhc shall, in addition to complying with the requirements in 10 CFR 52.83, and 52.99 comply with the following requirements:

(1) Implement the portions of the IST and ISI programs required by paragraph (a) (2) (vii) of this section, as approved by the Cofflfflission and include in each successive 120 month IST testing program non intrusive techniques available twelve months prior to the date of the start of each 12 0 month interval to detect degradation and monitor performance characteristics of check valves.

(2) f~'i~~6iit: tho,pf6gr~W(~6r outage planning '~rid :cdritrol "required by**paragra:pli' (a)

(2) (;Ji":i.i(.

of this Section, and (3) Implement the design reliability assurance program required by paragraph (a) (2) (ix) of this Section] M (c) Facility operation is not within the scope of this appendix, and the Commission reserves the right to impose requirements for facility operation on holders of licenses referencing this appendix by rule, regulation, order, or license condition; provided, however, that to the extent the Commission imposes new requirements affecting information in the design certification, it must satisfy the requirements of 10 CFR Section 52.63 and Section 8 of the rule.

15 (d) The Commission reserves the right to determine [whether, ane:] in what manner this appendix may be referenced by an applicant for a construction permit or operating license under 10 CFR Part 50.

13 Thes~ provisions

• relate to the "applicable regulations," which should be deleted from the rule. See NEI Comments, § § III and IV. E.

14 IS This addition is necessary to conform with 10 CFR § 52.63. See NEI Comments, § III.

8 Attachment B

5. Applicable regulations.

(a) Except as indicated in [paragraphs] paragraph (b) --f-e:Be

+e-H-*of this section, the regulations that apply to the U.S. ABWR design are in 10 CFR Parts 20, 50, 73, and 100 codified as of

[insert the date 30 days after the publication date] that are applicable and technically relevant, as described in the FSER and any associated supplements.

(b) The U.S. ABWR design is exempt from portions of the following regulations, as described in the FSER (index provided in Section 1.6 of the FSER):

(1) Paragraph (f) (2) (iv) of 10 CFR 50. 34 - Separate Plant Safety Parameter Display Console;

- (2) Paragraph (f) (2) (viii) of 10 CFR 50.34 - Post-Accident Sampling for Boron, Chloride, and Dissolved Gases; (3) Paragraph (f) (3) (iv) of 10 CFR 50.34 Dedicated Containment Penetration; and (4) Paragraph VI (a) (2) of 10 CFR Part 100, Appendix A -

Operating Basis Earthquake Design Consideration.

[(c) In addition to the regulations specified in paragraph (a) of this section, the following new regulations are applicable for the purposes of 10 CPR 52.48, 52.54, 52.59 and 52.63.

(1) The low pressure piping systems and subsystems of this design that interface *,irith the reactor coolant pressure boundary must be designed for a normal operating pressure of at least 40 percent of the normal reactor operating pressure, to the mctent practical as determined on [insert date of Cofftfftission approval].

(2) Piping systems of this design associated with pumps and valves subject to the test requirements set forth in 10 CPR 50.55a(f) must be designed to allow for.

(i) Full flow testing of pumps at maJEimum design flow, (ii) Flow testing of cheek valves at flmv sufficient to fully open the valve, provided the valve's full open position can be positively confirmed, or with the maJdmum design basis accident f 1 o*,11rat e , and (iii) Testing of motor operated valves under conditions as specified in section 3.9 of the DCD, up to design basis differential pressure, to demonstrate the capability of the valves to operate under design basis conditions.

(3) The digital instrumentation and control systems of this design 9 Attachment B

must provide for.

(i) defense in depth and diversity, (ii) adequate defense against common mode failures, and (iii) independent backup manual controls and displays for critical safety functions in the control room.

(4) The electric power system of this design must include an alternate offsite power source that has sufficient capacity and capability to provide power to non safety equipment sufficient to provide the operator with the capability to bring the plant to a safe shutdown, following a loss of the normal power supply and reactor trip.

(5) The electric power system of this design must include at least one offsite circuit for supplying power to each redundant safety division. This circuit shall be designed such that non safety loads do not have any significant adverse affect on the capability of the offsite circuit to provide power to each safety division.

(6) All structures, systems, and components of this design important to safe shutdor.m, CJECept for the main steam tunnel, must bg:de?igned to ensure tha~~

(i) Safe shutdown can be achieved assuming that all equipment in any one fire area will be rendered inoperable by fire and that re entry into the fire area for repairs and operator actions is not possible, except that this provision does not apply to (1) the main control room, provided that an alternative shutdown capability exists and is physically and electrically independent of the main control room, and (2) the reactor containment, (ii) Smoke, hot gases, or fire suppressant will not migrate from one fire area into another to the CJc:tent they could adversely affect safe shutdown capabilities, including operator actions, and (iii) In the reactor containment, redundant shutdown systems must be provided with fire protection capabilities and means to limit fire damage such that, to the extent practical as of [insert date of Commission approval] , one shutdown division be free of fire damage.

(7) The probabilistic risk assessment (PR.".. ) required by 10 CFR

52. 47 (a) (1) (v) must include an assessment of internal and CJc:ternal events. For CJc:ternal events, simplified (bounding) probabilistic methods and margins methods may be used instead of detailed PR.A.

analyses to identify potential vulnerabilities and important safety insights for the design in order to incorporate the insights in the design. Simplified bounding risk analyses for fires and floods may be performed *,vhen detailed design information, such as pipe and 10 Attachment B

cable routing, is not available. For earthquakes, the seismic margins analysis must be.based on a review earthquake level of one and two thirds the acceleration of the safe shutdown earthquake

( i. c. , rcvim,* ca:r:=thquakc level of O. Sg. )

(8) The electric power system of this design must include an on site alternate AC power source of diverse design capable of providing power to at least one complete set of equipment sufficient to achieve and maintain safe shutdown in the event of a station blackout.

(9) For the severe accident sequences identified in Section 19B of the BCD, this design must include the following design features that, in combination with other design features, ensure that environmental conditions (pressure and temperature) described in Section 19B of the BCD resulting from interactions of molten core debris *,irith containment structures do not exceed ASMB Code Service Level C for steel containments or Factored Load Category for concrete containments for a time from the initiation of the accident sequence sufficient to mitigate them in view of their probability of occurrence and the uncertainties in severe accident progression and phenomenology:

(i) A minimum of 79 m2 of unobstructed reactor cavity floor space for molten core debris spreading, (ii) A passive flooder system and an ac independent water addition system capable of directly or indirectly flooding the reactor cavity for cooling molten core debris, and (iii) Concrete to protect portions of the lower drywcll containment liner and the reactor pedestal.

(10) This design must include:

(i) a safety related or other highly reliable means to dcprcssuri!2lc the reactor coolant system and (ii) cavity design features to reduce the amount of ejected core debris that may reach the upper containment.

(11) This design must include analyses based on analytical techniques in use as of [insert date of Commission approval], to demonstrate that.

(i) Electrical and mechanical equipment that prevents or mitigates the consequences of a severe accident must be capable of performing their functions fqr a time period sufficient to prevent or mitigate the consequences. of that severe accident under the environmental conditions (e.g., pressure, temperature, radiation) described in Section 19B.2.1.2.3 of the BCD for that severe accident, and 11 Attachment B

(ii) Instrumentation that monitors plant conditions during a severe accident must be capable of performing its function for a time period sufficient to prevent or mitigate the consequences of that sev=ere accident under the environmental conditions (e.g., pressure, temperature, radiation) described in Section 19B.2.1.2.3 of the DCD for that severe accident.

(12) This design must include design features intended to limit the conditional containment failure probability to less than 0.1 for the severe accident sequences identified in Section 19B of the DCD.

(13) This design must include assessments of.

(i) Features that; minimizle shutdown risk; (ii) The reliability of decay heat removal systems; (iii) Features that mitigate vulnerabilities resulting from other design features, and (iv) Features that assure the operator's ability to shut down the plant safely and maintain it in a safe condition in the event of fires and floods occurring with the plant in modes other than full power.] 16 .*

6. Issue resolution for this design certification.

(a) The Commission has determined that the structures, systems, components, and design features of the U.S. ABWR design comply with the provisions of the Atomic Energy Act of 1954, as amended, and the applicable regulations identified in Section 5 of this appendix, and therefore, provide adequate protection to the health and safety of the public. A conclusion that a matter is resolved includes the finding that additional or alternative structures, systems, components, design features, design criteria, testing, analyses, acceptance criteria, or justifications are not necessary for the U.S. ABWR design.

(b) The Commission *considers the following matters resolved within the meaning of 10 CFR 52.63(a) (4) in subsequent proceedings for issuance of a combined liCense, amendment of a combined license, -fer} renewal of a combined license, design certification renewal proceedings (as consistent with § 6 (e), infra), 17 proceedings held pursuant to 10 CFR 52.103, and enforcement 16

• This change deletes. the "applicable regulations. " See NEI Comments,

§ IV.

17 This change clarifies that finality is also accorded in design certification renewal proceedings, as consistent with § 6 (e), infra.

See NEI Comments, § I.D.

12 Attachment B

proceedings [where these proceedings] involving plants that 18 reference this appendix:

(1) All nuclear safety issues associated with the information in the FSER and any associated supplements, the generic DCD (including referenced information which the context indicates is intended as requirements), and the rulemaking record for certification of the U.S. ABWR design; (2) All nuclear safety and safeguards issues associated with the information in proprietary and safeguards documents referenced and in context is intended as requirements in the generic DCD for the U.S. ABWR design; (3) [EJccept as provided in Section 8 (b) (5) (vi) of this appendiJE, all departures from Tier 2 pursuant to and in compliance with the change processes in Section 8(b) (5) of this appendix that do not require prior HRC approval,] All changes to Tier 1, Tier 2*

and Tier 2 made in accordance with the change process in Section hl9 (4) All environmental issues concerning severe accident design alternatives associated with the information in the NRC's final environmental assessment for the U.S. ABWR design and Revision 1 of the Technical Support Document for the U.S. ABWR, dated December 1994, for. plants. referenc;:ing this appendix. whose site parar(leters are within those specified in the Technical Support Document._ll an exemption is sought from a site parameter in the Technical Support Document, a severe accident design alternative will continue to have finality in all subsequent proceedings absent a showing that the exemption has an adverse impact on the specific severe accident design alternative evaluation. 20 (c) Except in accordance with the change processes in Section 8 of this appendix, the Commission may not require an applicant or licensee who references this appendix to:

(1) Modify structures, systems, components, or design features as described in the generic DCD; 18 This change clarifies that finality applies to plants, not proceedings. See NEI Comments, § I.E.

19 This change clarifies that changes to Tier 1, Tier 2* and Tier 2 are accorded** finality if the changes are made in accordance with the change process. See NEI Comments, § I.

20 This addition clarifies that severe accident design alternatives (SAMDA) retain finality when an exemption has been issued for a technical support document site parameter absent a showing that the exemption has an adverse impact on the SAMDA. See NEI Comments,

§ I.F.

13 Attachment B

(2) Provide additional or alternative structures, systems, components, or design features not discussed in the generic DCD; or (3) Provide additional or alternative design criteria, testing, analyses, acceptance criteria, or justification for structures, systems, components, or design features discussed in the generic DCD.

(d) Persons who wish to review proprietary and safeguards information or other secondary references in the DCD for the U.S.

ABWR design, in order to request or participate in the hearing required by 10 CFR 52. 85 or the hearing provided under 10 CFR 52.103, or to request or participate in any other hearing relating to the certified design in which interested persons have adjudicatory hearing rights, shall first request access to such information from GE Nuclear Energy. The request must state with particularity:

(i) the nature of the proprietary or other information sought; (ii) the reason why the information currently available to the public in the NRC's public document room is insufficient; (iii) the relevance of the requested information to the hearing issue(s) which the person proposes to raise; and (iv) a* s*howing the requesting person has the capability to understand and utilize the reques.ted information.

(3) If a person claims that the information is necessary to prepare a request for hearing, the request must be filed no later than 15 days after publication in the Federal Register of the notice required either by 10 CFR 52.85 or 10 CFR 52.103. If GE Nuclear Energy declines to provide the information sought, GE Nuclear Energy shall send a written response within ten (10) days of receiving the request to the requesting person setting forth with particularity the reasons for its refusal. The person may then request the Commission (or presiding officer, if a proceeding has been established) to order disclosure. The person shall include copies of the original request (and any subsequent clarifying information provided by the requesting party to the applicant) and the applicant's response. The Commission and presiding officer shall base their decisions solely on the person's original request (including any clarifying information provided by the requesting person to GE Nuclear Energy) , and GE Nuclear Energy's response. The Commission and presiding officer may order GE Nuclear Energy to provide access to some or all of the requested information, subject to an appropriate non-disclosure agreement.

(e) An applicant for design certification renewal shall update the application for design certification. The update shall consist of an amendment of Table 1.8-22 of Tier 2 for the ABWR to identify 14 Attachment B

relevant experience between the time of certification and the renewal application. For each relevant experience, the updated application shall explain whether the standard design adequately accounts for the new experience and, if not, whether the new experience indicates a need for a change in the standard design in order to (1) provide adequate protection of the public health and safety, (2) ensure compliance with NRC regulations in effect at the time of the original certification, or (3) provide a substantial, cost justified increase in safety under 10 CFR 52.59. The NRC review of the renewal application will be limited to the updated data and information and any modifications proposed by the renewal applicant. 21

7. Duration of this design certification.

This design certification may be referenced for a period of 15 years from [insert the date 30 days after the publication date],

except as provided for in 10 CFR 52. 55 (b) and 52. 57 (b) . This design certification remains valid for an applicant or licensee who references this appendix until the application is withdrawn or the license expires, including any period of [eJEtended] operation under a renewed license.

8 .-'-Processes:. for :.changes and departure*s*;*

(a) Tier 1 information.

(1) Generic changes to Tier 1 information are governed by the requirements in 10 CFR 52.63(a) (1).

(2) Generic changes to Tier 1 information are applicable to all plants referencing the design certification as set forth in 10 CFR 5 2

• 6 3 (a) ( 2 ) .

(3) Departures from Tier 1 information that are imposed by the Commission through plant-specific orders are governed by the requirements in 10 CFR 52.63(a) (3).

(4) Exemptions from Tier 1 information are governed by the requirements in 10 CFR 52.63(b) (1) and§ 52.97(b).

(b) Tier 2 information.

(1) Generic changes to Tier 2 information shall be governed by the same requirements in 10 CFR 52.63(a) (1) that govern generic changes tQ Tier 1.

(2) Generic changes to Tier 2 information are applicable to 21 This addition is made to clarify the scope of the renewal application and the staff's review. See NEI Comments, § I.D.

15 Attachment B

all plants referencing the design certification as set forth in 10 CFR 5 2 . 6 3 (a) ( 2 ) .

(3) The Commission may not impose new requirements on Tier 2 by plant-specific order while the design certification is in effect under§§ 52.55 or 52.61, unless:

(i) A modification is necessary to secure compliance with the Commission's regulations applicable and in effect at the time the certification was issued [, as set forth in Section 5 of this AppendiJc,] 22 or to assure adequate protection of the public health and safety or the common defense and security; and (ii) Special circumstances as defined in 10 CFR 50.12(a) are present.

(4) An applicant or licensee who references the design certification may request an exemption from Tier 2 information.

The Commission may grant such a request only if it determines that the exemption will comply with the requirements of 10 CFR 50.12(a).

[The granting of ouch an mceH1ption must be subject to litigation in the same manner as other issues in the combined license hearing.]

Issuance of the exemption to a COL applicant must be subject to litigation during the combined license proceeding in the same manner as other issues material to that proceeding. Issuance of the exemption to a licensee must be subject to an opportunity for a hearing in the same manner as other license amendments. 2 (5) (i) An applicant or licensee who references the design certification may depart from Tier 2 information, without prior NRC approval, unless .. the proposed departure involves a change to or departure from Tier 1 information, Tier 2* information, or the technical specifications, or involves an unreviewed safety question as defined in paragraphs (b) (5) (ii) and (b) (5) (iii) of this section. When evaluating the proposed departure, an applicant or licensee shall consider all matters described in the plant-specific DCD.

(ii) A proposed departure from Tier 2, [other than one affecting] except as to its effect on the resolution of a severe accident or beyond design basis accident issue identified in

[Section 19B] Chapter 19 of the plant-specific DCD, [including attachments BA through BB], [involves] shall be deemed to involve an unreviewed safety question if:

22 This change reflects the deletion of the additional "applicable regulations." See NEI Comments§ IV.

23 This addition clarifies the hearing requirements associated with issuance of an exemption to Tier 2 information. See NEI Comments,

§ XI.

16 Attachment B

(A) The probability of occurrence or the consequences of an accident or malfunction of equipment important to safety previously evaluated in the plant-specific DCD may be increased; (B) A possibility for an accident or malfunction of a different type than any evaluated previously in the plant-specific DCD may be created; or (C) The margin of safety as defined in the basis for any technical specification is reduced.

(iii) A proposed departure from Tier 2 affecting resolution of a severe accident or beyond design basis accident issue identified in [Section 19E of the plant specific DCD, including attachments EA through EE,] Chapter 19 of the plant-specific DCD involves an unreviewed safety question if:

(A) There i~ a substantial increase incthe probability of a severe accident or beyond design basis accident 24 such that a particular severe accident or beyond design basis accident previously reviewed and determined to be not credible could become credible; or (B) There is a substantial increase in the consequences to the public* of a particular severe accident or beyond design basis accident previously reviewed.

(iv) If a departure involves an unreviewed safety question as defined in paragraph (b) (5) of this section, it is governed by 10 CFR 50.90 and 50.92.

(v) A departure from Tier 2 information that is made under paragraph (b) (5) of this section, or a departure from Tier 2*

information that does not involve an unreviewed safety question, 25 does not require an exemption from this Appendix.

(vi) A party to an* adjudicatory proceeding for either the issuance, amendment, or renewal of a combined license or for operation under 10 CFR 52.103(a), who believes that an applicant or licensee has not complied with paragraph (b) (5) of this Section when departing from Tier 2 information,* may petition to admit into the proceeding such a contention. In addition to compliance with the general requirements of 10 CFR 2.714(b) (2), the petition must 24 This change clarifies that all of Chapter 19 should be subject to the "substantial increase" standard in the change process. See NEI Comments, § V.

2S This change provides that an exemption is not required for departures from Tier 2* that do not involve a USQ. See NEI Comments,

§ XI.C.

17 Attachment B

demonstrate that the departure does not comply with paragraph (b) (5) of this Section. Further, the petition must demonstrate that the change bears directly on an asserted noncompliance with an ITAAC acceptance.criterion in the case of a Section 52.103 pre-operational hearing, or that the change bears directly on the amendment request in the case of hearings on a license amendment. 26 Any other party may file a response thereto. If, on the basis of the petition and any response, the presiding officer determines that a sufficient showing has been made, the presiding officer shall certify the matter directly to the Commission for determination of the admissibility of the contention. The Commission may admit such a contention if it determines the petition raises a genuine issue of material 27 fact regarding compliance with paragraph (b) (5) of this Section.

(6) (i) An applicant [for] or holder of a combined license may not, before first full power, depart from Tier 2* information, which is designated with italicized text or brackets and an asterisk in the generic DCD, without prior NRC approval . After the plant first achieves full power, Tier 2* determination expires and has no further effect as to that licensee.

(ii) A departure from Tier 2* information that does not involve an unreviewed safety question as defined in paragraph (b) (5) of this section does not require an exemption from this Append ix . 28

[The departure will not be considered a resolved issue, *,li'ithin the meaning of Section 6 of this appendix and 10 CFR 52.63(a) (4).

(ii) A holder of a combined license may not depart from the following Tier 2* matters] [A request for a departure will be treated as a request for a license amendment under 10 CFR §§ 50.90 and 50.92.

(A) Equipment seismic qualification methods.

(B) Piping design acceptance criteria.

26 This change clarifies that there must be a nexus between the asserted non-compliance and the subject of the proceeding. See NEI Comments, § I.G.

27 This change clarifies that the alleged non-compliance must be material. See NEI Comments, § I.G.

28 These changes reflect the expiration of Tier 2* information at first full power and clarify that departures from Tier 2* only require prior NRC approval; an exemption is not required for Tier 2* changes that do not involve an unreviewed safety question. See NEI

• Comments, § VII.

18 Attachment B

(C) Fuel burnup limit.

(D) Fuel licensing acceptance criteria (4B of DCD).

(E) Control rod licensing acceptance criteria (4C of DCD).

(F) Human factors engineering design and implementation process.

(iii) A holder of a combined license may not, before. the plant first achieves full power following the finding required by 10 CFR 52 .103 (g) , depart from the following Tier 2* matters mcccpt in accordance with paragraph (b) (6) (ii) of this Section. After the plant first achieves full power, the following Tier 2

• Fflattcrs revert to Tier 2 qtatus and arc thereafter subject to the departure provisions in paragraph (b) (5) of this Section.]

[(A) ASME Boiler & Pressure Vessel Code,Section III.

(B) .ANSI/AISC N 690 and ACI 349.

(C) Motor operated valves.

(D) Fuel systcFfl and assembly design ( 4. 2 of DCD) , except burnup limit.

(E) Fuel evaluation methods and results (4.2 of DCD).

(F) ~ruclcar design ( 4. 3 of DCD) .

(G) Equilibrium cycle and control rod patterns (4A of DCD).

(II) Instrument sctpoint methodology.

(I) EMS performance specifications and architecture.

(J) BBLC hardware and software qualification.

(K) Self test system design testing features and cofflfflitmcnts.

(iv) Departures from Tier 2* information that arc made under paragraph (b) (6) of this section do not require an mccmption from this Appendix.

[(c) Additional applicable regulations.

The Cofflfflission may not modify or rescind mcisting requirements or impose new requirements on either this appcndhc or a plant referencing this appendix, whether on the Cofflfflission' s mm motion or in response to a petition from any person, on the basis that either the DCD or the referencing plant fails to comply with an additional applicable regulation in Section S(c) of this appendix, unless the Commission determines that:

19 Attachment B

(1) the failure to comply results in a substantial reduction in the protection of public health and safety or common defense and

security, (2) the new requirements provide a compensating increase in protection not mceccding the level of protection originally embodied in the additional applicable regulation, and (3) the direct and indirect costs of implementation arc justified in view of this compensating increase in protection.] 29 (c) Other requirements of this design certification rule.

(1) Generic (rulemaking) changes to the provisions in this Appendix are governed by the requirements of Subpart Hof 10 CFR Part 2.

2 An a licant or licensee ma re est an exem tion from the provisions in this Appendix in accordance with 10 CFR 50.12(a).

9. Inspections, tests, analyses, and acceptance criteria

( ITAAC) .

(a) (1) An applicant or licensee who references the design certification shall perform and demonstrate conformance with the I'i'AA.:c-*before fuel load. With respect to activities subject to an ITAAC, an applicant for a COL may proceed at its own risk with design and procurement activities, and a licensee may proceed at its own risk with design, procurement, construction, and preopcrational activities, even though the NRC may not have found that any particular ITAAC has been satisfied.

(2) The licensee shall notify the NRC that the required inspections, tests, and analyses in the ITAAC have been successfully completed and that the corresponding acceptance criteria have been met.

(3) In the event that an activity is subject to [an ITA..~C, and the applicant or licensee has not demonstrated that the ITA..~C has been satisfied, the applicant or licensee may] and in noncompliance with an ITAAC, the applicant for or holder of a COL shall either take correcti vc actions to successfully complete that ITAAC--f, request an] or reguest and obtain NRC approval of a change in or 29 This section is no longer required if the NRC deletes the "applicable regulations." This section should be retained if the Commission adopts the "applicable regulations." See NEI Comments

§ IV.

30 The addition of subsection (c) adds provisions specifying how changes can be made to the DCD Introduction. See NEI Comments,

§ VI.

20 Attachment B

exemption from the ITAAC in accordance with [Section 8 of this appendilc and 10 CFR 52. 97 (b) , or petition for rulemaking to amend this appendix by changing the requirements of the ITA~C, under 10 CFR 2. 802 an.d 52. 97 (b) . Such rulemaking changes to the ITA~C must meet the requirements of Section 8 (a) (1) of this appendiJE] the design certification rule for the ABWR. 31 --

(b) (1) The NRC shall ensure that the required inspections, tests, and analyses in the ITAAC are performed. The NRC shall verify that the inspections, tests, and analyses referenced by the licensee have been successfully completed and, based solely

. thereon, find the prescribed acceptance criteria have been met. At appropriate intervals during construction, the NRC shall publish notices of the successful completion of ITAAC in the Federal Register.

(2) In accordance with 10 CFR 52. 99 and 52 .103 (g) , the Commission shall find that the acceptance criteria in the ITAAC for the combined license are met before fuel load.

(3) [After the Commission has made the finding required by 10 CFR 52.103(g), the ITAAC do not constitute regulatory requirements either for subsequent plant modifications during operation, or for renewal of the combined license. However, subsequent modifications must comply with the Tier 1 and Tier 2 design descriptions in the plant specific BCD unless the licensee has complied with

• the applicable requirements of 10 CFR 52. 97 and Section 8 of this appendiJE.] After the Commission has made the finding required by 10 CFR 52.103(g}, ITAAC no longer constitute regulatory requirements;* provided that. as regards specific ITAAC which are the subject of a Section 103(a} hearing, there expiration shall occur upon final Commission action in such proceeding. However, subsequent modifications must comply with the Tier 1 and Tier 2 design descriptions in the plant-specific DCD unless the licensee has complied with the applicable requirements of Section 8 of this Appendix. 32

10. Records and Reporting.

(a) Records.

(1) The applicant for this design certification rule shall maintain a copy of the generic DCD that includes all generic 31 This change clarifies that a COL applicant or holder may either request an exemption from an ITAAC requirement or obtain NRC approval to change NRC the ITAAC in accordance with the change process specified in the rule. Rulemaking is not required.

32 These changes are needed to conform with the provisions in the DCD Introduction. See NEI Comments, § VI.

21 Attachment B

changes to Tier 1 and Tier 2. The applicant shall maintain the proprietary and safeguards information referenced in the generic DCD for the period that this appendix may be referenced, as specified in Section 7 of this appendix.

(2) An applicant or licensee who references this design certification shall maintain the plant-specific DCD to accurately reflect both generic changes to the generic DCD and plant-specific departures made pursuant to Section 8 of this appendix throughout the period of application and for the term of the license (including any period of renewal).

(3) An applicant or licensee who references this design certification shall prepare and maintain written safety evaluations which provide the bases for the determinations required by Section 8 (b) of this appendix. These evaluations must be retained throughout the period of application and for the term of the license (including any period of renewal).

(b) Reporting.

(1) An applicant or licensee who references this design c~r:tificatiqn _rule shall_ ~ubmit a report to the NRC containing a br.1.~f- desc:i:-ip~ioi::t ~f '~nyJdepartures from the' pla_rit-E3p~cifict DCD, including a summary of the* safety evaluat::ionof each. This 'report must be filed iri accordance. with the filing requirements applicable to reports in 10 CFR 50.4.

(2) An applicant or licensee shall submit updates to its plant-specific DCD, which reflect the generic changes to the generic DCD and the plant-specific departures made pursuant to Section 8 of this appendix. These updates shall be filed in accordance with the filing requirements applicable to final safety analysis report updates in 10 CFR 50.4 and 50.7l(e).

(3) The reports and updates required by Section l0(b) (1) and (2) above must be submitted as follows:

(i) On the date that an application for a combined license referencing this design certification rule is submitted, the application shall include the report and any updates to the plant-specific DCD.

(ii) During the interval from the date of application to the date of issuance of a combined license, the report and any updates to the plant-specific DCD must be submitted annually and - may be submitted along with amendments to the application.

(iii) During the interval from the date of issuance of a combined license to the date the Commission makes its findings under 10 CFR 52.103(g), the report must be submitted [quarterly]

22 Attachment B

semi-annually. 33 Updates to the plant-specific DCD must be submitted annually.

(iv) After the Commission has made its finding under 10 CFR 52.103(g), reports and updates to the plant-specific DCD may be submitted annually or along with updates to the site-specific portion of the final safety analysis report for the facility at the intervals required by 10 CFR 50.71(e), or at shorter intervals as specified in the combined license.

Dated at Rockville, Maryland, this __ day of _ _ _ , 1996.

For the Nuclear Regulatory Commission John C. Hoyle, Secretary of the Commission 33 This change reduces the reporting burden by requiring reports only semi-annually.

23 Attachment B

ATTACHMENT C GE's PROPOSED DESIGN CERTIFICATION RULE FOR THE ABWR Attachment C

Appendix A To Part 52--Design Certification Rule for the U.S. Advanced Boiling Water Reactor

1. Introduction.

Appendix A constitutes the standard design certification for the U.S. Advanced Boiling Water Reactor (ABWR) design, in accordance with 10 CFR Part 52, Subpart B. The applicant for certification of the U.S. ABWR design was GE Nuclear Energy.

2. Definitions.

As used in this part:

(a) Generic design control document (generic DCD) means the document that contains the generic Tier 1 and Tier 2 information that is incorporated by reference into this appendix.

(b) Plant-specific DCD means the document, maintained by an applicant or licensee who references this design certification rule, consisting of the information in the generic DCD, as modified and supplemented by the plant-specific departures and exemptions made under Section 8 of this appendix.

(c) Tier 1 means the portion of the design-related information contained in the generic DCD that is approved and certified by this design certification rule (hereinafter Tier 1 information). Tier 1 information includes:

(1) Definitions and general provisions; (2) Certified design descriptions; (3) Inspections, tests, analyses, and acceptance criteria (ITAAC);

(4) Significant site parameters; and (5) Significant interface requirements.

The certified design .descriptions, significant interface requirements, and significant site parameters are derived from Tier 2 information, but may be more general than the provisions in Tier 2. Compliance with the more detailed Tier 2 material provides a sufficient, but not the only acceptable, method for complying with the more general provisions in Tier 1 (including the ITAAC). Compliance methods differing from Tier 2 material must satisfy the change process provisions specified in Section 8(b), and such differences shall not negate a COL applicant's or holder's general requirement to reference Tier 2 when referencing Tier 1.

Attachment C

The Design Descriptions in Tier 1 pertain only to the design of structures, systems, and components of the ABWR standard plant and not to their operation, maintenance, and administration. In the event of an +/-nconsistericy between Tier 1 and Tier 2, Tier 1 shall govern. Design activities for structures, systems, and components outside the scope of the ABWR standard design may be performed using site-specific design parameters.

(d) Tier 2 means the portion of the design-related information contained in the generic DCD that is approved but not certified by this design certification rule (hereinafter Tier 2 information). Tier 2 information includes:

(1) Information required by 10 CFR 52.47; (2) Information required for a final safety analysis report under 10 CFR 50.34; (3) Supporting information on the inspections, tests, and analyses that will be performed to demonstrate that the acceptance criteria in the ITAAC have been met. Compliance with Tier 2 is a sufficient, but not necessarily the only, method for complying with the ITAAC. The provisions and methods specified in Tier 2 shall be followed unless a change is made in the plant-specific DCD in accordance with the change processes specified in the design certification rule for the ABWR; (4) Combined License (COL) Information Items, which identify certain matters that need to be addressed by an applicant or licensee referencing the design certification rule for the ABWR.

The purpose of these COL License Information Items is to identify the type of information that must be addressed in plant-specific Design Control Documents (DCD) that reference the design certification rule for the ABWR. These COL License Information Items do not establish requirements; rather they identify an acceptable set of information, but not the only acceptable set of information, for inclusion in a plant-specific DCD. An applicant may deviate from or omit these COL License Information Items, provided that the deviation or omission is identified and justified in the plant-specific DCD. After issuance of a construction permit or license, the COL License Information Items have no further effect to that licensee; instead, the corresponding provisions in the plant-specific DCD are applicable; (5) Proposed technical specifications for the portion of the plant within the scope of the standard design. These proposed technical specifications are applicable to an applicant for a combined license or operating license referencing this design certification rule, and shall be incorporated in the technical specifications in the license, except as changed pursuant to the provisions in Section 8 of this design certification rule that 3 Attachment C

apply to changes to Tier 2 information. Changes in the proposed technical specifications by a license applicant are subject to NRC review and approval and a hearing as part of the license proceeding. After issuance of the combined license or operating license, the proposed technical specifications in Tier 2 have no further effect as to that licensee, and the technical specifications in the license become effective.

(6) References to the ABWR Standard Safety Analysis Report, which shall not be construed as incorporating these sections, or the information therein, in Tier 2.

(e) Tier 2* means the portion of the Tier 2 information which cannot be changed without prior NRC approval by letter or other written document. This information is identified in the DCD. The restrictions on changes to Tier 2* information expire at first full power for a plant that references this design certification rule. Thereafter, changes to the Tier 2*

information shall be controlled in the same manner as changes to other Tier 2 information.

(f) All other terms in this appendix have the meaning set out in 10 CFR 50.2, 10 CFR 52.3, or Section 11 of the Atomic Energy Act of 1954, as amended, as applicable.

3. Scope and contents of this design certification.

(a) The U.S. ABWR Design Control Document, GE Nuclear Energy, Revision is incorporated by reference. This incorporation by reference was approved by the Director of the Office of the Federal Register on [Insert date of approval] in accordance with 5 U.S.C. 552(a) and 1 CFR Part 51. Copies of the generic U.S. ABWR DCD may be purchased from National Technical Information Service, Springfield, VA 22161. Copies are also available for examination and copying at the NRC Public Document Room, 2120 L Street NW. (Lower Level), Washington, DC 20555, and for examination at the NRC Library, 11545 Rockville Pike, Rockville, Maryland 20582-2738.

(b) An applicant or licensee referencing this appendix, in accordance with Section 4 of this appendix, shall comply with the requirements of this appendix, including Tier 1 and Tier 2, except as otherwise provided in this appendix.

(c) If there is a conflict between Tier 1 and Tier 2 of the DCD, then Tier 1 controls.

(d) If there is a conflict between the generic DCD and either the application for design certification for the U.S. ABWR design or NUREG-1503, "Final Safety Evaluation Report related to the Certification of the Advanced Boiling Water Reactor Design,"

4 Attachment C

dated July 1994 *(FSER) and any supplements thereto, then the generic DCD controls.

(e) As provided in 10 CFR 52.47(a) (1) (ix), conceptual designs provided for those portions of the plant outside the scope of the ABWR standard design are not part of the design certification rule for the ABWR standard design, and do not impose requirements applicable to a license, nor to an application for a license, that references the design certification rule;

4. Applications and licenses referencing this design certification: additional requirements and restrictions.

(a) An applicant for a combined license that wishes to reference this Appendix shall, in addition to complying with the requirements of 10 CFR 52.77, 52.78, and 52.79, comply with the following requirements:

(1) Incorporate by reference, as part of its application, this appendix; **

. (2) . Incl~q.e, ,af:l,.~ar~ ,of its appli9at:ho:i;i:.

(i) A plant-specific DCD containing the same information and utilizing the same organization and numbering as the generic DCD for the U.S. ABWR design, as modified and supplemented by the applicant's exemptions and departures; (ii) The reports on departures from and updates to the plant-specific DCD required by Section l0(b) of this Appendix; (iii) Technical specifications for the plant that are required by§ 50.36 and§ 50.36a; (iv) Information demonstrating compliance with the site parameters and interface requirements; (v) Information that addresses the COL License Information Items, including justifications for any deviations from or omissions of the COL License Information Items; and (vi) The information required by 10 CFR 52.47(a) that is not within the scope of this rule.

(3) Physicaliy*include, in the plant.:..specific DCD, the proprietary information and safeguards information referenced in the U.S. ABWR DCD; and (b) (not used.)

(c) Facility operation is not within the scope of this 5 Attachment C

appendix, and the Commission reserves the right to impose requirements for facility operation on holders of licenses referencing this appendix by rule, regulation, order, or license condition; provided, however, that to the extent the Commission imposes new requirements affecting information in the design certification, it must satisfy the requirements of 10 CFR Section 52.63 and Section 8 of the rule.

(d) The Commission reserves the right to determine in what manner this appendix may be referenced by an applicant for a construction permit or operating license under 10 CFR Part 50.

5. Applicable regulations.

(a) Except as indicated in paragraph (b) of this section, the regulations that apply to the U.S. ABWR design are in 10 CFR Parts 20, 50, 73, and 100 codified as of [insert the date 30 days after the publication date] that are applicable and technically relevant, as described in the FSER and any associated supplements.

(b) The U.S. ABWR design is exempt from portions of the following regulations, as described in the FSER (index provided in Section 1.6 of the FSER):

(1) Paragraph (f) (2) (iv) of 10 CFR 50.34 - Separate Plant Safety Parameter Display Console; (2) Paragraph (f) (2) (viii) of 10 CFR 50.34 - Post-Accident Sampling for Borah, Chloride, and Dissolved Gases; (3) Paragraph (f) (3) (iv) of 10 CFR 50.34 - Dedicated

- Containment Penetration; and (4) Paragraph VI(a) (2) of 10 CFR Part 100, Appendix A -

Operating Basis Earthquake Design Consideration.

6. Issue resolution for this design certification.

(a) The Commission has determined that the structures, systems, components, and design features of the U.S. ABWR design comply with the provisions of the Atomic Energy Act of 1954, as amended, and the applicable regulations identified in Section 5 of this appendix, and therefore, provide adequate protection to the health and safety of the public. A conclusion that a matter is resolved includes the finding that additional or alternative structures, systems, components, design features, design criteria, testing, analyses, acceptance criteria, or justifications are not necessary for the U.S. ABWR design.

(b) The Commission considers the following matters resolved within the meaning of 10 CFR 52.63(a) (4) in subsequent 6 Attachment C

proceedings for issuance of a combined license, amendment of a combined license, renewal of a combined license, design certification renewal proceedings (as consistent with§ 6(e),

infra), proceedings held pursuant to 10 CFR 52.103, and enforcement proceedings involving plants that reference this appendix:

(1) All nuclear safety issues associated with the information in the FSER and any associated supplements, the generic DCD (including referenced information which the context indicates is intended as requirements), and the rulemaking record for certification of the U.S. ABWR design; (2) All nuclear safety and safeguards issues associated with the information in proprietary and safeguards documents referenced and in. context is intended as requirements in the generic DCD for the U.S. ABWR design-;

(3) All changes to Tier 1, Tier 2* and Tier 2 made in accordance with the change process in Section 8; (4) All environmental issues concerning severe accident design alternatives associated with the information in the NRC's final environmental assessment for the U.S. ABWR design and Revision 1 of the Technical Support Document for the U.S. ABWR, dated December 1994, for plants referencing this appendix whose site parameters are within those specified in the Technical Support Document. If an exemption is sought from a site parameter in the Technical Support Document, a severe accident design alternative will continue to have finality in all subsequent proceedings absent a showing that the exemption has an adverse impact on the specific severe accident design alternative evaluation.

(c) Except in accordance with the change processes in Section 8 of this appendix, the Commission may not require an applicant or licensee who references this appendix to:

(1) Modify structures, systems, components, or design features as described in the generic DCD; (2) Provide additional or alternative structures, systems, components, or design features not discussed in the generic DCD; or (3) Provide additional or alternative design criteria, testing, analyses, acceptance criteria, or justification for structures, systems, components, or design features discussed in the generic DCD.

(d) Persons who wish to review proprietary and safeguards 7 Attachment C

information or other secondary references in the DCD for the U.S.

ABWR design, in order to request or participate in the hearing required by 10 C~R 52.85 or the hearing provided under 10 CFR 52.103, or to request or participate in any other hearing relating to the certified design in which interested persons have adjudicatory hearing rights, shall first request access to such information from GE Nuclear Energy. The request must state with particularity:

(i) the nature of the proprietary or other information sought; (ii) the reason why the information currently available to the public in the NRC's public document room is insufficient;

- (iii) the relevance of the requested information to the hearing issue(s) which the person proposes to raise; and (iv) a showing the requesting person has the capability to understand and utilize the requested information.

(3) If a person claims that the information is necessary to prepare a request for hearing, the request must be filed no later than 15 days after publication in the Federal Register of the notice required either by 10 CFR 52.85 or 10 CFR 52.103. If GE Nuclear Energy declines to provide the information sought, GE Nuclear Energy shall send a written response within ten (10) days of receiving the request to the requesting person setting forth with particularity the reasons for its refusal. The person may then request the Commission (or presiding officer, if a proceeding has been established) to order disclosure. The person shall include copies of the original request (and any subsequent clarifying information provided by the requesting party to the applicant) and the applicant's response. The Commission and presiding officer shall base their decisions solely on the person's original request (including any clarifying information provided by the requesting person to GE Nuclear Energy), and GE Nuclear Energy's response. The Commission and presiding officer may order GE Nuclear Energy to provide access to some or all of the requested information, subject to an appropriate non-disclosure agreement.

(e) An applicant for design certification renewal shall update the application for design certification. The update shall consist of an amendment of Table 1.8-22 of Tier 2 for the ABWR to identify relevant experience between the time of certification and the renewal application. For each relevant experience, the updated application shall explain whether the standard design adequately accounts for the new experience and, if not, whether the new experience indicates a need for a change in the standard design in order to (1) provide adequate protection of the public health and safety, (2) ensure compliance 8 Attachment C

with NRC regulations in effect at the time of the original certification, or (3) provide a substantial, cost justified increase in safety under 10 CFR 52.59. The NRC review of the renewal application will be limited to the updated data and information and any modifications proposed by the renewal applicant.

7. Duration of this design certification.

This design certification may be referenced for a period of 15 years from [insert the date 30 days after the publication date], except as provided for in 10 CFR 52.55(b) and 52.57(b}.

This design certification remains valid for an applicant or licensee who references this appendix until the application is withdrawn or the license expires, including any period of operation under a renewed license.

8. Processes for changes and departures.

(a) Tier 1 information.

(1) Generic changes to Tier 1 information are governed by the requirements in 10 CFR 52.63(a) (1).

(2) Generic changes to Tier 1 information are applicable to all plants referencing the design certification as set forth in 10 CFR 5 2 . 6 3 (a) ( 2 ) .

(3) Departures from Tier 1 information that are imposed by the Commission through plant-specific orders are governed by the requirements in 10 CFR 52.63(a) (3).

(4) Exemptions from Tier 1 information are governed by the requirements in 10 CFR 52.63(b) (1) and§ 52.97(b).

(b) Tier 2 information.

(1) Generic changes to Tier 2 information shall be governed by the same requirements in 10 CFR 52.63(a) (1) that govern generic changes to Tier 1.

(2) Generic changes to Tier 2 information are applicable to all plants referencing the design certification as set forth in 10 CFR 52. 63 (a) (2) .

(3) The Commission may not impose new requirements on Tier 2 by plant-specific order while the design certification is in effect under§§ 52.55 or 52.61, unless:

(i) A modification is necessary to secure compliance with the Commission's regulations applicable and in effect at the time the certification was issued or to assure adequate protection of 9 Attachment C

the public health and safety or the common defense and security; and (ii) Special circumstances as defined in 10 CFR 50.12(a) are present.

(4) An applicant or licensee who references the design certification may request an exemption from Tier 2 information.

The Commission may grant such a request only if it determines that the exemption will comply with the requirements of 10 CFR 50.12(a). Issuance of the exemption to a COL applicant must be subject to litigation during the combined license proceeding in the same, manner as other issues material to that proceeding.

Issuance of the exemption to a licensee must be subject to an opportunity for a hearing in the same manner as other license amendments.

(5) (i) An applicant or licensee who references the design certification may depart from Tier 2 information, without prior NRC approval, unless the proposed departure involves a change to or departure from Tier 1 information, Tier 2* information, or the technical specifications, or involves an unreviewed safety question as defined in paragraphs (b) (5) (ii) and (b) (5) (iii) of this section.*. When evaluating the proposed departure, an applicant or licensee shall consider all matters described in the plant-specific DCD.

(ii) A proposed departure from Tier 2, except as to its effect on the resolution of a severe accident or beyond design basis accident issue identified in Chapter 19 of the plant-specific DCD, shall be deemed to involve an unreviewed safety question if:

(A) The probability of occurrence or the consequences of an accident or malfunction of equipment important to safety previously evaluated in the plant-specific DCD may be increased; (B) A possibility for an accident or malfunction of a different type than any evaluated previously in the plant-specific DCD may be created; or (C) The margin of safety as defined in the basis for any technical specification is reduced.

(iii) A proposed departure from Tier 2 affecting resolution of a severe accident or beyond design basis accident issue identified in Chapter 19 of the plant-specific DCD involves an unreviewed safety question if:

(A) There is a substantial increase in the probability of a severe accident or beyond design basis accident such that a particular severe accident or beyond design basis accident 10 Attachment C

previously reviewed and determined to be not credible could become credible; or (B) There is a substantial increase in the consequences to the public of a particular severe accident or beyond design basis accident previously reviewed.

(iv) If a departure involves an unreviewed safety question as defined in paragraph (b) (5) of this section, it is governed by 10 CFR 50.90 and 50.92.

(v) A departure from Tier 2 information that is made under paragraph (b) (5) (v) of this section, or a departure from Tier 2*

information that does not involve an unreviewed safety question, does not require an exemption from this Appendix.

(vi) A party to an adjudicatory proceeding for either the issuance, amendment, or renewal of a combined license or for operation under 10 CFR 52.103(a), who believes that an applicant or licensee has not complied with paragraph (b) (5) of this Section when departing from Tier 2 information, may petition to admit into the proceeding such a contention. In addition to compliance with the general requirements of 10 CFR 2.714(b) (2),

the petition must demonstrate that the departure does not comply with paragraph (b) (5) of this Section. Further, the petition must demonstrate that the change bears directly on an asserted noncompliance with an ITAAC acceptance criterion in the case of a Section 52.103 pre-operational hearing, or that the change bears directly on the amendment request in the case of hearings on a license amendment. Any other party may file a response thereto.

If, on the basis of the petition and any response, the presiding officer determines that a sufficient showing has been made, the presiding officer shall certify the matter directly to the Commission for de~ermination of the admissibility of the contention. The Commission may admit such a contention if it determines the petition raises a genuine issue of material fact regarding compliance with paragraph (b) (5) of this Section.

(6) (i) An applicant or holder of a combined license may not, before first full power, depart from Tier 2* information, which is designated with italicized text or brackets and an asterisk in the generic DCD, without prior NRC approval. After the plant first achieves full power, Tier 2* designation expires and has no further effect as to that licensee.

(ii) A departure from Tier 2* information that does not involve an unreviewed safety question as defined in paragraph (b) (5) of this section does not require an exemption from this Appendix.

(c) Other requirements of this design certification rule.

11 Attachment C

(1) Generic *(rulemaking) changes to the provisions in this Appendix are governed by the requirements of Subpart Hof 10 CFR Part 2.

(2) An applicant or licensee may request an exemption from the provisions in this Appendix or the DCD Introduction in accordance with 10 CFR 50.12(a).

9. Inspections, tests, analyses, and acceptance criteria

( ITAAC) .

(a) (1) An applicant or licensee who references the design certification shall perform and demonstrate conformance with the ITAAC before fuel load. With respect to activities subject to an ITAAC, an applicant for a COL may proceed at its own risk with design and procurement activities, and a licensee may proceed at its own risk with design, procurement, construction, and preoperational activities, even though the NRC may not have found that any particular ITAAC has been satisfied.

(2) The licensee shall notify the NRC that the required inspections, tests, and analyses in the ITAAC have been successfully completed arid.that the correspqnding.~c;:ceptanc~.

criteria have been met:* ... '*, '* ..,. , .... ,. . . . ..

(3) In the event that an activity is subject to and in noncompliance with an ITAAC, the applicant for or holder of a COL shall either take corrective actions to successfully complete that ITAAC or request and obtain NRC approval of a change in or exemption from the ITAAC in accordance with the design certification rule for the ABWR.

(b) (1) The NRC shall ensure that the required inspections, tests, and analyses in the ITAAC are performed. The NRC shall verify that the inspections, tests, and analyses referenced by the licensee have been successfully completed and, based solely thereon, find the prescribed acceptance criteria have been met.

At appropriate intervals during construction, the NRC shall publish notices of the successful completion of ITAAC in the Federal Register.

(2) In accordance with 10 CFR 52.99 and 52.103(g), the Commission shall find that the acceptance criteria in the ITAAC for the combined license are met before fuel load.

(3) After the Commission has made the finding required by 10 CFR 52.103(g), ITAAC no longer constitute regulatory requirements; provided that, as regards specific ITAAC which are the subject of a Section 103(a) hearing, there expiration shall occur upon final Commission action in such proceeding. However, subsequent modifications must comply with the Tier 1 and Tier 2 design descriptions in the plant-specific DCD unless the licensee 12 Attachment C

has complied with the applicable requirements of Section 8 of this Appendix.

10. Records and Reporting.

(a) Records.

(1) The applicant for this design certification rule shall maintain a copy of the generic DCD that includes all generic changes to Tier 1 and Tier 2. The. applicant shall maintain the proprietary and safeguards information referenced in the generic DCD for the period that this appendix may be referenced, as specified in Section 7 of this appendix.

(2) An applicant or licensee who references this design certification shall maintain the plant-specific DCD to accurately reflect both generic changes to the generic DCD and plant-specific departures made pursuant to Section 8 of this appendix throughout the period of application and for the term of the license (including any period of renewal).

(3) An applicant or licensee who references this design certification shall prepare and maintain written safety evaluations which provide the bases for the determinations required by Section 8(b) of this appendix. These evaluations must be retained throughout the period of application and for the term of the license (including any period of renewal).

(b) Reporting.

(1) An applicant or licensee who references this design certification rule shall submit a report to the NRC containing a brief description of any departures from the plant-specific DCD, including a summary of the safety evaluation of each. This report must be filed in accordance with the filing requirements applicable to reports in 10 CFR 50.4.

(2) An applicant or licensee shall submit updates to its plant-specific DCD, which reflect the generic changes to the generic DCD and the plant-specific departures made pursuant to Section 8 of this appendix. These updates shall be filed in accordance with the filing requirements applicable to final safety analysis report updates in 10 CFR 50.4 and 50.7l(e).

(3) The reports and updates required by Section l0(b) (1) and (2) above must be submitted as follows:

(i) On the date that an application for a combined license referencing this design certification rule is submitted, the application shall include the report and any updates to the plant-specific DCD.

13 Attachment C

(ii) During the interval from the date of application to the date of issuance of a combined license, the report and any updates to the plant-specific DCD must be submitted annually and may be submitted along with amendments to the application.

(iii) During the interval from the date of issuance of a combined license to the date the Commission makes its findings under 10 CFR 52.103(g), the report must be submitted semi-annually. Updates to the plant-specific DCD must be submitted annually.

(iv) After the Commission has made its finding under 10 CFR 52.103(g), reports and updates to the plant-specific DCD may be submitted annually or along with updates to the site-specific portion of the final safety analysis report for the facility at the intervals required by 10 CFR 50.71(e), or at shorter intervals as spe~ified in the combined license.

Dated at Rockville, Maryland, this __ day of - - - I 1996.

For the Nuclear Regulatory Commission John C. Hoyle, Secretary of the Commission 14 Attachment C

DOCKET NUMBERPR OOChE TEO PROPOSED RULE 5~

( {o \ FR.\ <acf~q) [759 *.Poi J NUCLEAR REGULATORY COMMISSION

• 95 NAY 24 P3 :43 10 CFR Part 52 0FFICE r*- Sr. .,, *.* " Pr:

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RIN 3150-AE87; 3150-AFlS DOCK C:T l,~ '1 . 3 H' 'ICF 8111-l. H H Standard Design Certification for the U.S. Advanced Boiling-Water Reactor and System 80+ Designs; Extension of Comment Period AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed Rule: Extension of the comment period.

SUMMARY

A supplementary notice of proposed rulemaking for certification of the U.S. Advanced Boiling-Water Reactor (ABWR) and System 80+ designs was published in the Federal Register on April 24, 1996 (61 FR 18099). The supplementary convnent period expired on May 24, 1996. On May 17, 1996, the U.S. Nuclear Regulatory Commission (NRC) received a request for a 60-day extension of the supplementary comment period from the Nuclear Energy

• Institute (NEI). NEI requested the extension in order to provide substantive comments on new issues, as well as on longstanding issues that NEI stated have not yet been resolved to its satisfaction. Therefore, the Commission is extending the comment period to July 23, 1996.

The final design certification rules for the ABWR and System 80+

designs, which are under consideration by the Commission, are contained in SECY-96-077, "Certification of Two Evolutionary Designs," which was prepared by the NRC staff. This SECY paper has been placed in the NRC Public Document Room (PDR), and comments on the proposed rules, focusing specifically on staff-recommended changes from the rules originally proposed, are solicited.

These changes are discussed in the supplementary information section of the

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I

• 2 recommended notices of final rulemaking contained in SECY-96-077. In addition, GE Nuclear Energy (GE) submit~ed draft changes to the ABWR Design Control Document (DCD) to the NRC in a letter dated April 16, 1996 that GE intends to include in its final DCD. Comments are also solicited on GE's letter of April 16, 1996, which is available in the NRC PDR.

DATES: Comments are due by July 23, 1996. Convnents received after this date will be considered if it is practical to n1 so, but the Convnission will only

• assure consideration for comments received on or before this date.

ADDRESSES: Submit written comments to the Secretary of the Convnission, U.S.

Nuclear Regulatory Convnission, Washington, DC 20555-0001, Attention:

Docketing and Service Branch. Comments may also be hand delivered to 11555 Rockville Pike, Rockville, Maryland, between 7:30 a.m. and 4:15 p.m. on Federal workdays. Copies of SECY-96-077, including the Federal Register notices for both rules, and the comments received will be available for examination at the NRC Public Document Room at 2120 L Street NW (Lower Level),

• Washington, DC.

FOR FURTHER INFORMATION CONTACT: Jerry N. Wilson, Office of Nuclear Reactor Regulation, telephone (301) 415-3145, or Geary S. Mizuno, Office of the General Counsel, telephone (301) 415-1639, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001.

Dated at Rockville, Maryland, this c;;JJ~day of May, 1996.

For the Nuclear Regulatory Commission.

~

. oy e, tary of the Commission

OOCKE 1 EO US~ t~~0-01-P]

NUCLEAR REGULATORY COMMISSION '96 APR 18 P5 *26 10 CFR Part 52 OF FiC t Or SEC PE TA RY RIN 3150-AE87; 3150-AF15 OOC KE:. Tl

• J t -~ R'/ICE s** .~ 1** 1.

Standard Design Certification for the U.S. Advanced Boiling Water Reactor and the System 80+ Standard Designs; Proposed Rule and Meeting DOCKET NlMBER Pft

• AGENCY: Nuclear Regulatory Commission. pRQPOSEO RULE...!..!!-~ ----

( b\ rR. \~099 ACTION: Proposed Rule: Supplementary notice of proposed rulemaking and public meeting.

SUMMARY

The Nuclear Regulatory Commission (NRC or Commission) is considering approval by rulemaking of the U.S. Advanced Boiling Water Reactor (ABWR) and the System 80+ standard designs. The applicant for certification of the U.S. ABWR design is GE Nuclear Energy and for the System 80+ design is Asea Brown Boveri-Combustion Engineering. Notices of proposed rulemaking for the certification of these designs were published in the Federal Register on April 7, 1995 (60 FR 17902 and 60 FR 17924). The final design certification rules, which are under consideration by the Commission, are contained in SECY-96-077, "Certification of Two Evolutionary Designs," which was prepared by the NRC staff. This SECY paper has been placed in the NRC Public Document Room and additional comme~ts on the proposed rules, focusing specifically on staff recommended changes from the rules originally proposed, are solicited.

These changes are discussed in the supplementary information section of the recommended notices of final rulemaking contained in SECY-96-077. In this regard, the NRC will also conduct a public meeting . The purpose of the

2 meeting is to provide an opportunity for the public to ask questions on the development of the final rules and the NRC's resolution of comments received on the proposed rules.

DATES: Public Meeting on Thursday, May 2, 1996, 1:00 p.m.

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Comments are due on or before [iRsert4-Ae~~e 30 days after t~

dat9 of publicatio~]. Comments received after this date will be considered if it is practical to do so, but the Commission is only able to assure consideration for comments received on or before this date.

ADDRESSES: Submit written comments to:

The Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Attention: Docketing and Service Branch.

Comments may also be hand delivered to 11555 Rockville Pike, Rockville, Maryland, between 7:30 am and 4:15 pm on Federal workdays. Copies of SECY 077, including the Federal Register notices for both rules, and the comments received will be available for examination at the NRC Public Document Room at 2120 L Street NW. (Lower Level), Washington, DC. The meeting will be held in the NRC auditorium, 11545 Rockville Pike, Rockville, Maryland 20852. The Auditorium is located on the underground level between the One White Flint North Building and the Two White Flint North Building. The NRC buildings are located across the street from the White Flint Metro Station. The entrance to

3 the auditorium is located underneath the glass pyramid, near the Two White Flint Building.

FOR FURTHER INFORMATION CONTACT: Dino Scaletti, Office of Nuclear Reactor Regulation, telephone (301) 415-1104, or Jerry N. Wilson, Office of Nuclear Reactor Regulation, telephone (301) 415-3145, U.S. Nuclear Regulatory Commission, Washington, DC 20555.

Dated at Rockville, Maryland, this 18th day of April, 1996.

For the Nuclear Regulatory Commission.

he Commission