View source for NRC-2018-0109, NRR E-mail Capture - (External Sender) NRC Review of 50.59 for Use of Lead Test Assemblies at Vogtle Unit 2

{{Adams
| number = ML19087A342
| issue date = 03/27/2019
| title = NRR E-mail Capture - (External_Sender) NRC Review of 50.59 for Use of Lead Test Assemblies at Vogtle Unit 2
| author name = Ennis R
| author affiliation = - No Known Affiliation
| addressee name = Erlanger C, Suber G
| addressee affiliation = NRC/NRR/DORL
| docket = 05000425
| license number = NPF-81
| contact person = 
| case reference number = NRC-2018-0109
| document type = E-Mail
| page count = 15
}}

=Text=
{{#Wiki_filter:NRR-DMPSPEm Resource From:                                Rick Ennis <ennis.rick@verizon.net>
Sent:                                Wednesday, March 27, 2019 12:21 PM To:                                  Burnell, Scott Cc:                                  Erlanger, Craig; Suber, Gregory; Blamey, Alan; Markley, Michael; Lamb, John; Green, Kimberly; David.Solorio@nrc.gov; Pierri, Rocco; Bupp, Margaret

==Subject:==
[External_Sender] RE: NRC review of 50.59 for use of LTAs at Vogtle Unit 2 Attachments:                         Ennis Email.pdf
: Scott, Thank you for your response. Yes, retirement is going well. One of the major reasons I decided to retire from the NRC was the continuing bad safety culture at the NRC. The late Harold Chernoff, Mike Markley, and myself formally raised a number of valid concerns regarding licensing and other aspects concerning lead test assemblies (LTAs). Despite the well-supported arguments we made, we were basically treated as trouble-makers. Im sure other NRC staff share similar concerns but are afraid to raise them based on how people are treated by NRC management when issues are raised.
In my experience, when people use the non-concurrence or DPO process and raise valid, logical, coherent issues, fully consistent with the regulations and precedence, the resolution to the concerns raised are typically weak, misleading, factually incorrect, and unconvincing. That was my experience when I initiated several non-concurrences on emergency planning issues a number of years ago. That was one of the reasons I started writing more white papers and using more open-door discussions on licensing issues since the non-concurrence and DPO processes are a losers game. However, even when raising issues via open door or via white paper, in this age of transformation and innovation, it is still hard to find someone in NRC management with the integrity to do the right thing.
I have no problem with transformation and innovation, however, the NRC is still obligated to do this in a manner fully consistent with existing rules and regulations. In the case of LTAs, the NRC has made a change in policy before the rules have been changed. As you noted in your response below to my 3/19/19 email to Craig Erlanger and Gregory Suber (copy attached), the updated LTA guidance is not issued yet. However, the NRC has been interacting with licensees and allowing them to proceed with use of LTAs based on the new guidance and not the existing licensing framework.
The NRC has previously determined that, once finalized, the LTA guidance will be considered a rule and will be processed in accordance with the NRCs procedures established to meet the requirements of the Congressional Review Act (CRA).
Under the CRA, rules may not go into effect until they are submitted to Congress. My understanding is that the LTA guidance has not yet been submitted to Congress. As such, the licensing framework for use of LTAs currently should be consistent with longstanding precedent (i.e., use of exemptions and license amendments) and current rules and regulations. Any attempt to implement the new guidance before it is finalized would be a violation of the requirements of the CRA.
In the case of Vogtle Unit 2, you stated [t]he staff remains satisfied, based on available information, that there are no safety concerns with the Vogtle LTA approach. Region IIs oversight of Vogtle will account for the LTA campaign going forward. Its not clear to me how the staff determined there were no safety concerns since I believe that the licensees 10 CFR 50.59 evaluation was not reviewed by NRC staff with the necessary expertise in licensing and expertise on this specific issue. As I stated in my 3/19/19 email, a properly done 50.59 for use of LTAs with different cladding and pellet material (as is the case for Vogtle Unit 2) would likely result in the conclusion that prior NRC approval would be needed via a license amendment (i.e., under the current regulatory framework). Compliance with NRC regulations gives confidence that safety is being maintained. However, the NRC has inappropriately allowed the licensee to use these LTAs without a detailed review, required under the provisions of 10 CFR 50.90, in order to have reasonable assurance 1

that safety is being maintained. Note, regardless of the conclusion of the 10 CFR 50.59 evaluation, a license amendment is still required under the current regulatory framework as detailed in my numerous previous comments on this issue.
Since we are talking about potential changes in design basis limits for a fission process barrier (i.e., fuel cladding) and methods of analysis for fuel that has not previously been approved by the NRC, where is the NRCs questioning attitude on this issue?
If you have any questions, please let me know.
: Thanks, Rick From: Burnell, Scott Sent: Tuesday, March 26, 2019 4:08 PM To: ennis.rick@verizon.net

==Subject:==
RE: NRC review of 50.59 for use of LTAs at Vogtle Unit 2 Hello Rick; Im responding on behalf of the Region 2 and NRR technical staff working on the issues you raised. We appreciate your continued close attention on the topic. The staff remains satisfied, based on available information, that there are no safety concerns with the Vogtle LTA approach. Region IIs oversight of Vogtle will account for the LTA campaign going forward. The staff is close to the end of the publication process for the updated LTA guidance, so it should be available sometime during the summer. The agency also recently completed work on a related DPO, so that should also be available soon The staff believes the upcoming documents will properly address how the staff dispositioned the issues raised in the references you mentioned.
Please feel free to use me as a single point of contact for any further questions you have. Thanks, and I hope your retirement is going well.
Scott Burnell OPA 2

Hearing Identifier:      NRR_DMPS Email Number:            892 Mail Envelope Properties       (002301d4e4b9$1996c160$4cc44420$)

==Subject:==
[External_Sender] RE: NRC review of 50.59 for use of LTAs at Vogtle Unit 2 Sent Date:               3/27/2019 12:21:13 PM Received Date:           3/27/2019 12:21:34 PM From:                    Rick Ennis Created By:              ennis.rick@verizon.net Recipients:
"Erlanger, Craig" <Craig.Erlanger@nrc.gov>
Tracking Status: None "Suber, Gregory" <Gregory.Suber@nrc.gov>
Tracking Status: None "Blamey, Alan" <Alan.Blamey@nrc.gov>
Tracking Status: None "Markley, Michael" <Michael.Markley@nrc.gov>
Tracking Status: None "Lamb, John" <John.Lamb@nrc.gov>
Tracking Status: None "Green, Kimberly" <Kimberly.Green@nrc.gov>
Tracking Status: None "David.Solorio@nrc.gov" <David.Solorio@nrc.gov>
Tracking Status: None "Pierri, Rocco" <rocco.pierri@nrc.gov>
Tracking Status: None "Bupp, Margaret" <Margaret.Bupp@nrc.gov>
Tracking Status: None "Burnell, Scott" <Scott.Burnell@nrc.gov>
Tracking Status: None Post Office:             verizon.net Files                             Size                   Date & Time MESSAGE                           5417                   3/27/2019 12:21:34 PM Ennis Email.pdf                          1299029 Options Priority:                         Standard Return Notification:              No Reply Requested:                  No Sensitivity:                      Normal Expiration Date:
Recipients Received:

NRR-DMPS-ECapture Resource From:                                 Rick Ennis <ennis.rick@verizon.net>
Sent:                                 Tuesday, March 19, 2019 7:19 PM To:                                   Erlanger, Craig; Suber, Gregory Cc:                                   Markley, Michael; Lamb, John; Blamey, Alan

==Subject:==
NRC review of 50.59 for use of LTAs at Vogtle Unit 2 Attachments:                          Ennis 07-02-18 comments on NEI letter - ML18184A378.pdf; Ennis 07-13-18 comments on NEI letter - ML18199A097.pdf Craig/Gregory,

ThisemailistoexpressmyopinionthattheNRCneedstoreviewSNCs50.59relatedtoinstallationofLTAsforVogtle
Unit2duringthecurrentrefuelingoutage.ThisshouldbedoneASAPandbeforeplantstartupfromtheoutage.

Note,basedon:(1)thecommentsHaroldChernoffandIprovidedinour3/22/18memototheGeneralCounsel
(ADAMSPackageML18078A010andspecificallyEnclosure2tothememo(ML18078A013));(2)Harolds5/4/18non concurrenceonthedraftNEIletter(ML18151B016);and(3)the7/2/18commentsIsubmittedonthedraftNEIletter,as
amemberofthepublic,afterIretiredfromtheNRC(ML18184A378,copyattached);Ibelievethelicenseeneedsan
amendmentaswellasanexemptiontolegallyinstalltheLTAs.However,asnotedinJohnLambsmemotoMike
Markleydated3/7/19(ML19064B379),IunderstandthelicenseeisinstallingtheLTAsatVogtleUnit2underthe
provisionsof10CFR50.59.

Basedonrecentconversations,Iunderstandthatthelicenseehasjustrecentlycompletedthe50.59andthattheNRC
hasnotreviewedit.GiventheVogtleUnit2outagehasalreadystarted,Ifindthistroublingsince,basedonpast
experience,Iwouldhaveexpectedthe50.59tohavebeencompletedlongago,incasetheevaluationresultedina
conclusionthatpriorNRCapprovalwasneededvialicenseamendment(i.e.,the50.59shouldhavebeencompletedover
1yearago).Thismakesmewonderwhetheratrulyunbiased50.59wouldbeperformed.

Giventhecurrentcircumstances,theleasttheNRCcandoismakesurethe50.59supportsuseoftheLTAswithoutprior
NRCapproval.Ipersonallybelievethataproperlydone50.59wouldresultinaneedforanamendment(seeSection6.0
ofEnclosure2tothe3/22/18memototheGeneralCounsel(ML18078A013)).Asfurtherproofthatanamendment
wouldlikelybeneeded,seetheattached7/13/18commentsIsubmittedonthedraftNEIletter.Asnotedinmy
comments,Westinghouse,incommentingontheguidanceinthedraftNEIletter,indicatedthat:

1)"Theguidancedoesnotaddressthefactthatforthesematerialconcepts,thedesignbasislimitsforfissionproduct
barriersarenotyetknownandwouldbeexpectedtobedifferentthanthosealreadyestablishedfortheplant."

2)"Asacknowledgedintheguidancedocument,performanceoftheLTAswillnecessitatetheuseofnotyetlicensed
codesandmethods,whichequatestoachangeinthemethodofanalysisspecifictoanalysesperformedfortheLTAs."

BasedoneitheroneofthosestatementsbyWestinghouse,aproperlydone50.59foruseofLTAswithdifferentcladding
andpelletmaterial(asisthecaseforVogtleUnit2)wouldresultintheconclusionthatpriorNRCapprovalwouldbe
neededviaalicenseamendment.

Finally,inSection5ofEnclosure2tothe3/22/18,memototheGeneralCounsel(ML18078A013),Mr.ChernoffandI
arguedthattheLTAguidanceprovidesnewinterpretationsofregulatoryrequirementsthathasasubstantialeffecton
licenseeactivities(i.e.,wouldeliminatetheneedforlicenseestosubmitcertainlicenseamendmentrequestsand
exemptionrequests).Inaddition,theguidancewouldalsohaveasubstantialeffectonpublicstakeholders(i.e.,would
eliminatethepublicsabilitytorequesthearingsorprovidecommentsonlicenseeuseofLTAsifamendmentrequests
1

werenolongerrequired).Basedontheseconsiderations,theguidanceshouldbeconsideredarule.Furthermore,since
theguidanceshouldbeconsideredarule,theguidanceshouldbeprocessedinaccordancewiththeNRCsprocedures
establishedtomeettherequirementsoftheCongressionalReviewAct(CRA).ItismyunderstandingthattheNRCstaff
isprocessingthedraftlettertoNEI,containingtheLTAguidance,inaccordancewiththeCRA.Sincetheseactivities
arenotyet
complete,theNRCshouldbetreatinglicenseeuseofLTAsconsistentwithlongstandingprecedent(i.e.,useof
exemptionsandrevisionstoTS4.2.1).Anyattempttoimplementthenewguidancebeforeitisfinalizedwouldbea
violationoftherequirementsoftheCRA.

Ifyouwouldliketodiscussanyoftheseissuesfurther,pleasesendmeanemailandwecansetupatimetotalk.

Thanks,Rick
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