ML23346A068

Commission Memorandum and Order (CLI-23-05)

ML23346A068
Person / Time
Site:	Hermes File:Kairos Power icon.png
Issue date:	12/12/2023
From:	Thi Herrera NRC/SECY
To:	NRC/OCM
SECY RAS
References
Construction Permit Mndtry Hrg, RAS 56874, Kairos Power, Hermes-M 50-7513-CP, 50-7513-CP, CLI-23-05
Download: ML23346A068 (50)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

COMMISSIONERS:

Christopher T. Hanson, Chair David A. Wright Annie Caputo Bradley R. Crowell

In the Matter of

KAIROS POWER LLC Docket No. - -CP

(Hermes Test Reactor)

CLI--

MEMORANDUM AND ORDER

On October,, we held a hearing on the application of Kairos Power LLC (Kairos)

for a construction permit for the Hermes non-power test reactor. 1 In this uncontested

proceeding, we consider the sufficiency of the NRC Staffs review of Kaiross application. As

discussed below, we find that the Staffs review was sufficient to support the regulatory findings.

We authorize issuance of the construction permit.

1 See Kairos Power LLC; Construction Permit Application; Notice of Hearing, Fed. Reg.

, (Sept., ) (Hearing Notice); Tr. at - (attached to Order of the Secretary (Setting Deadline for Proposed Transcript Corrections) (Oct., ) (unpublished) (as amended by Order of the Secretary (Adopting Transcript Corrections and Admitting Revised Exhibit) (Nov.,

) (unpublished))).

BACKGROUND

A. Proposed Action

The construction permit would allow construction of a -megawatt thermal test reactor

on an approximately -acre brownfield site in Oak Ridge, Tennessee. 2 The Hermes test

reactor will use a combination of tri-structural isotropic (TRISO) fuel particles and a molten

fluoride salt coolant known as Flibe. The non-power reactor will serve as a scaled

demonstration plant to test and demonstrate key technical elements, design features, safety

functions, and equipment performance for Kaiross salt-cooled, fluoride high temperature reactor

technology.3 Kairos expects to complete construction by the end of and then to operate for

four years.4

Before submitting its construction permit application in,5 Kairos engaged in

extensive preapplication activities with the Staff, including the development of topical reports

and participation in public meetings and audits. 6 Topical reports cover safety-related topics that

apply to multiple nuclear reactors and increase the efficiency of the licensing process by

minimizing the time and resources that both applicants and the Staff spend on multiple reviews

of the same topic. Kairos submitted eleven topical reports for the Staffs review and approval,

2 Ex. KRS-, Applicants Pre-Filed Testimony of Peter Hastings; Kairos Power LLC; Evidentiary Hearing (Sept., ), at, (Kairos Testimony).

3 Id. at.

4 Id. at, ; Ex. NRC-, Safety Evaluation Related to the Kairos Power LLC Construction Permit Application for the Hermes Test Reactor (June, ), at -, - (Safety Evaluation).

5 The public version of the application can be found in Exhibits NRC-A through NRC-E in this proceeding.

6 Ex. NRC-, Staffs Statement in Support of the Uncontested Hearing for Issuance of a Construction Permit for the Kairos Hermes Test Reactor, Commission Paper SECY- -

(Aug., ), at (Staff Information Paper). The topics covered by the topical reports, preapplication meetings, and preapplication audits are listed in the Staff Information Paper. Id.

at -.

eight of which were referenced in its application. 7 Kairos supplemented its application and

provided clarifications through timely responses to several hundred Staff questions during audit

meetings and in docketed correspondence. 8 The Staff also issued three requests for additional

information and one request for confirmation of information. 9 Kairos and the Staff used

regulatory guidance in NUREG-in the preparation and review of the construction permit

application.10 Kairos did not request, and the Staff did not grant, any exemptions from NRC

regulations.11

The Staff conducted a safety review of the application to determine whether it complies

with the Atomic Energy Act of, as amended (AEA), and the NRCs regulations. 12 The

Advisory Committee on Reactor Safeguards (ACRS), a committee of technical experts charged

with reviewing and reporting on safety studies and applications for construction permits and

facility operating licenses, provided an independent assessment of the safety aspects of the

7 Id. The Staff prepared a safety evaluation for each of the topical reports, and any condition or limitation on the use of a topical report is provided in the approved version of the report. Id. at.

The Staffs review of the construction permit application confirmed that the conditions or limitations for the topical reports referenced in the application were satisfied or could reasonably be left for the operating license application. Id.

8 Ex. KRS-, Kairos Testimony, at.

9 Id.

10 See id. at (citing Guidelines for Preparing and Reviewing Applications for the Licensing of Non-Power Reactors: Format and Content, NUREG-, pt. (Feb. ) (ADAMS accession no. ML ); Guidelines for Preparing and Reviewing Applications for the Licensing of Non-Power Reactors: Standard Review Plan and Acceptance Criteria, NUREG-, pt.

(Feb. ) (ML )); Ex. NRC-, Staff Information Paper, at -.

11 Ex. NRC-, Staff Information Paper, at.

12 See Ex. NRC-, Safety Evaluation.

application.13 The ACRS recommended that the construction permit be issued. 14 The Staff also

performed an environmental review, in accordance wi th the National Environmental Policy Act of

(NEPA),15 that evaluated the environmental impacts of constructing, operating, and

decommissioning the Hermes test reactor. 16 Based on its safety and environmental reviews, the

Staff recommended that the Commission issue the construction permit to Kairos once the

National Historic Preservation Act of (NHPA) section consultation process is

complete.17

B. Review Standards

Section a. of the AEA requires that we hold a hearing on an application to construct a

testing facility.18 The Staff published a notice of hearing in the Federal Register and provided an

opportunity for interested members of the public to petition for leave to intervene. 19 No petitions

to intervene were filed. Therefore, there was no separate contested hearing.

We issued a second notice that set the time and place for the uncontested hearing and

outlined the standards for our review. 20 These standards track the two major areas of focus for

13 See Letter from Joy L. Rempe, ACRS, Chairman, to Christopher T. Hanson, Chair, NRC, Kairos Non-Power Reactor Hermes Construction Permit Application (May, )

(ML A ) (ACRS Letter).

14 Id. at.

15 U.S.C. § et seq.

16 See Ex. NRC-, Environmental Impact Statement for the Construction Permit for the Kairos Hermes Test Reactor (Final Report), NUREG- (Aug. ) (FEIS).

17 Ex. NRC-, Staff Information Paper, at ; Tr. at (Mr. Regan). At the time of the hearing, the Staff had not yet completed the section consultation process.

18 AEA § a., U.S.C. § (a) (The Commission shall hold a hearing... on any application under section c. for a construction permit for a testing facility.).

19 Kairos Power, LLC; Construction Permit Application; Opportunity to Request a Hearing and Petition for Leave to Intervene; Order Imposing Procedures, Fed. Reg. (Feb., ).

20 Hearing Notice, Fed. Reg. at,-.

the review of a construction permit application: the Staffs safety and environmental reviews. For

the safety review, we must determine whether:

. the applicant has described the proposed design of the facility, including, but not limited to, the principal architectural and engineering criteria for the design, and has identified the major features or components incorporated therein for the protection of the health and safety of the public;

. such further technical or design information as may be required to complete the safety analysis, and which can reasonably be left for later consideration, will be supplied in the final safety analysis report;

. safety features or components, if any, which require research and development have been described by the applicant and the applicant has identified, and there will be conducted, a research and development program reasonably designed to resolve any safety questions associated with such features or components; and

. on the basis of the foregoing, there is reasonable assurance that (i) such safety questions will be satisfactorily resolved at or before the latest date stated in the application for completion of construction of the proposed facility, and (ii) taking into consideration the site criteria contained in C.F.R. Part, the proposed facility can be constructed and operated at the proposed location without undue risk to the health and safety of the public. 21

In making these findings, we are guided by the additional considerations in C.F.R.

§.. We consider whether:

. the processes to be performed, the operating procedures, the facility and equipment, the use of the facility, and other technical specifications, or the proposals, in regard to any of the foregoing collectively provide reasonable assurance that the applicant will comply with NRC regulations, including the regulations in C.F.R. Part, 22 and that the health and safety of the public will not be endangered;

21 C.F.R. §. (a); Hearing Notice, Fed. Reg. at, -.

22 The regulations in Part apply to persons licensed by the Commission to receive, possess, use, transfer, or dispose of byproduct, source, or special nuclear material or to operate a production or utilization facility. C.F.R. §.. Kairos has neither requested approval of design information nor has applied for a license to receive, possess, use, transfer, or dispose of byproduct, source, or special nuclear material at the facility. Ex. NRC-, Safety Evaluation, at -. Therefore, the [S]taff did not evaluate whether requirements in CFR Part would be met for the construction of the Hermes reactor. Instead, the [S]taff assessed whether Kairos had identified the relevant requirements for an operating facility and provided descriptions of the preliminary facility design and provisions for protecting the health and safety of the public, workers, and the environment in sufficient detail to determine whether the [preliminary safety analysis report] provides an acceptable basis fo r the development of the radiation protection programs and radioactive waste management, and whether there is reasonable assurance that

. the applicant is technically and financially qualified to engage in the proposed activities;

. the issuance of the construction permit will not be inimical to the common defense and security or to the health and safety of the public; and

. any applicable requirements of Subpart A of C.F.R. Part have been satisfied.23

Overlapping this last consideration are the environmental findings that we must make to

support issuance of the construction permit. 24 The findings reflect our agencys obligations

under NEPA, a statute that requires us to consider the impacts of NRC actions on

environmental values.25 To ensure that these obligations are fulfilled for this construction permit

proceeding, we must:

. determine whether the requirements of NEPA Sections ( )(A), (C), and (E),26 and the applicable regulations in C.F.R. Part, have been met;

. independently consider the final balance among conflicting factors contained in the record of the proceeding with a view to determining the appropriate action to be taken;

. determine, after weighing the environmental, economic, technical, and other benefits against environmental and other costs, and considering reasonable alternatives, whether the construction permit should be issued, denied, or appropriately conditioned to protect environmental values; and

Kairos will comply with the regulations in CFR Part during operation of the Hermes facility. Id. We agree that the Staffs approach meets C.F.R. §. (a).

23 C.F.R. §. (a)-(d).

24 See, e.g., id. §. (a).

25 NEPA § ( ), U.S.C. § ( ); see C.F.R. §..

26 On June 3, 2023, President Biden signed into law the Fiscal Responsibility Act of 2023.

Pub. L. No. 118-5, 137 Stat. 10. In addition to increasing the debt ceiling and addressing other matters related to federal spending, the Ac t, in section 321, included amendments to NEPA.

The amendments added new sections (D), (E), and (F) to section 102(2); as a result, the section 102(2)(E) referred to in 10 C.F.R. § 51.105(a)(1) is now section 102(2)(H), but the substance of the provision remains the same.

. determine whether the NEPA review conducted by the NRC Staff has been adequate.27

If we determine that the application meets the standards and requirements of the AEA and the

NRCs regulations and that any notifications to other agencies or bodies have been duly made,

we will issue a construction permit in such form and containing such conditions and limitations

that we deem appropriate and necessary. 28

We do not review Kaiross application de novo; rather, we consider the sufficiency of the

Staffs review of the application on both safety and environmental matters. 29 In other words, we

consider whether the safety and environmental record is adequate to support issuance of the

construction permit and whether the Staffs findings are reasonably supported in logic and fact. 30

Under our regulations, we must reach our own independent determination on certain

environmental findingsi.e., whether the relevant NEPA requirements have been met, what is

the appropriate final balance among conflicting factors, and whether the construction permit

should be issued, denied[,] or appropriately conditioned. 31 But we will not second-guess [the

Staffs] underlying technical or factual findings unless we find the Staffs review incomplete or

inadequate or its findings insufficiently explained in the record. 32

27 C.F.R. §. (a)( )-( ); Hearing Notice, Fed. Reg. at,. Because this is an uncontested proceeding, C.F.R. §. (a)( ), which concerns only contested proceedings, does not apply.

28 C.F.R. §..

29 See Exelon Generation Co. (Early Site Permit for Clinton ESP Site), CLI- -, NRC,,

- ().

30 See id. at.

31 Id. at (quoting C.F.R. §. (a)( )-( )).

32 Id.

C. The Hearing Process

The Staff completed its safety review of the Hermes application in June, with the

publication of the Safety Evaluation, and its environmental review in August, with the

issuance of the Final Environmental Impact Statement (FEIS). 33 Shortly after publication of the

FEIS we received the Staffs information paper, which serves as the Staffs pre-filed testimony

for the uncontested hearing. 34

. Pre-Hearing Activities

The notice of hearing set a schedule for pre-hearing filings. 35 We issued twenty-eight

questions on environmental and safety-related topics for the Staff and Kairos to answer in

writing in advance of the hearing. The questions addressed a variety of topics including

functional containment, temperature monitori ng of the safety-related decay heat removal

system, how to address the new NEPA requirements enacted in June, and whether the

cumulative impacts of the proposed Hermes facility are analyzed in the FEIS. 36

We also invited interested states, local government bodies, and federally recognized

Indian tribes to provide statements for us to consider as part of the uncontested proceeding. 37 In

response, we received a statement from the City of Oak Ridge, Tennessee. 38 The letter from the

33 See Ex. NRC-, Safety Evaluation; Ex. NRC-, FEIS.

34 See Ex. NRC-, Staff Information Paper.

35 Hearing Notice, Fed. Reg. at,.

36 See Order of the Secretary (Transmitting Pre-Hearing Questions) (Sept., )

(unpublished), at - (Pre-Hearing Questions Order).

37 See Hearing Notice, Fed. Reg. at,.

38 See Letter from Jack Suggs, Interim City Manager, City of Oak Ridge, Tennessee, to NRC Document Control Desk (Sept., ) (ML A ).

City of Oak Ridge expressed its continued support for the Kairos project and described the

positive interaction with Kairos during the Citys zoning approval process. 39

. The Hearing

We set the topics for and the order of presentations at the hearing. 40 In the first panel,

witnesses for Kairos provided an overview of the Hermes test reactor project and the Hermes

construction permit application. 41 In the second panel, witnesses for the Staff provided an

overview of the construction permit review process and a summary of the Staffs review and

regulatory findings.42 The third panel focused on safety-related issues, and the fourth panel

focused on environmental issues. 43 The Staff made available thirty-two witnesses at the

hearing.44 Thirteen of these witnesses were scheduled panelists; the remainder stood by to

answer questions on topics related to their areas of expertise. 45 A total of twenty-one Kairos

39 Id. at -.

40 See Memorandum from Brooke P. Clark, Secretary of the Commission, to Counsel for Applicant and Staff (Oct., ), Encl. (MLA) (Scheduling Note).

41 Ex. KRS-, Hermes Mandatory HearingOverview Panel (Oct., ) (Kairos Overview Panel Presentation).

42 Ex. NRC- -R, Kairos Hermes Mandatory Hearing Construction Permit Application Review:

Overview of Review Methodology and Summary of Key Regulatory Findings (Oct., )

(Staff Overview Panel Presentation).

43 See Ex. KRS-, Hermes Mandatory HearingSafety Panel (Oct., ) (Kairos Safety Panel Presentation); Ex. NRC-, Kairos Hermes Mandatory Hearing Construction Permit Application Review: Safety Panel (Oct., ) (Staff Safety Panel Presentation);

Ex. KRS-, Hermes Mandatory HearingEnvironmental Panel (Oct., ) (Kairos Environmental Panel Presentation); Ex. NRC-, Kairos Hermes Mandatory Hearing Construction Permit Application Review (Oct., ) (Staff Environmental Panel Presentation).

44 See Tr. a t - (Ms. Wright); see also NRC Staff Witness List (Sep., ), Attach.

(MLA ).

45 See Ex. NRC- -R, Staff Overview Panel Presentation, at ; Ex. NRC-, Staff Safety Panel Presentation, at (ML A ) (Staff Safety Panel Presentation); Ex. NRC-, Staff Environmental Panel Presentation, at.

witnesses attended the hearing, four of whom offered testimony on behalf of Kairos on panels at

the hearing and in pre-filed written testimony. 46

a. Summary of the Overview Panels

Mike Laufer, Chief Executive Officer; Ed Blandford, Chief Technology Officer; Per

Peterson, Chief Nuclear Officer; and Peter Hastings, Vice President, Regulatory Affairs and

Quality of Kairos Power LLC, provided testimony for the Kairos overview panel. 47 Dr. Laufer

provided information on the background and mission of Kairos. 48 Dr. Peterson provided

testimony on technical aspects and the objectives for the Hermes reactor project. 49 Dr. Laufer,

Dr. Peterson, and Mr. Hastings also answered questions regarding the effectiveness of Kaiross

interactions with the Staff during its review, the interactions with the community around Oak

Ridge, Tennessee, and the public more generally, and the purpose of the mandatory hearing

process.50

Robert Taylor, Deputy Director of the Office of Nuclear Reactor Regulation (NRR);

Mohamed Shams, Director, Division of Advanced Reactors and Non-Power Production and

Utilization Facilities (DANU), NRR; Jeremy Bowen, Deputy Director, DANU, NRR; and

Christopher Regan, Director, Division of Rulemaking, Environmental, and Financial Support

(REFS), Office of Nuclear Material Safety and Safeguards (NMSS), presented the Staffs

overview panel and provided testimony on the Staf fs review of the Kairos construction permit

46 See List of Anticipated Witnesses for Kairos Power, LLC for the Hearing on Uncontested Issues (Sep., ), at - ; Tr. at - (Mr. Lighty); Ex. KRS-, Kairos Testimony; Ex. KRS-, Kairos Overview Panel Presentation, at ; Ex. KRS-, Kairos Safety Panel Presentation, at ; Ex. KRS-, Kairos Environmental Panel Presentation, at.

47 Tr. a t - (Dr. Laufer, Dr. Peterson); Scheduling Note, Encl. at.

48 Tr. a t - (Dr. Laufer).

49 Id. at - (Dr. Peterson).

50 Id. at - (Dr. Laufer, Dr. Peterson, Mr. Hastings).

application.51 Mr. Taylor provided an overview of the Kairos construction permit application. 52

Mr. Shams described the pre-application engagement with Kairos, regulatory standards

governing the construction permit application review, and public engagement during the

review.53 Mr. Bowen provided insights into the Staffs safety review. 54 Mr. Regan provided an

overview of the Staffs environmental review and findings in support of issuance of the

construction permit.55 Mr. Shams, Mr. Taylor, and Mr. Bowen answered questions relating to the

applicants construction permit application, research activities, pre-application engagement, the

use of topical reports in the construction permit application review, knowledge management for

future advanced reactor applications, and lessons learned from the Staffs review of this

construction permit application that can be applied to the Hermes construction permit

application.56

b. Summary of the Safety Panel

The safety panel discussed the Kairos construction permit application and Staff

conclusions from the Safety Evaluation, focusing on unique features of the facility and novel

issues, including TRISO fuel, molten salt coolant, high-temperature materials, functional

containment, and passive accident response. 57 Ed Blandford, Chief Technology Officer, Kairos

51 Id. at - (Mr. Taylor, Mr. Shams, Mr. Bowen, Mr. Regan); Scheduling Note, Encl. at.

52 Id. at - (Mr. Taylor).

53 Id. at - (Mr. Shams).

54 Id. at - (Mr. Bowen).

55 Id. at - (Mr. Regan).

56 Id. at - (Mr. Shams, Mr. Taylor, Mr. Bowen).

57 Id. at - (Mr. Blandford, Mr. Jessup, Mr. Helvenston, Mr. Van Wert, Mr. Chereskin, Ms. Hart, Ms. Siwy); Ex. KRS-, Kairos Safety Panel Presentation, at - ; Ex. NRC-, Staff Safety Panel Presentation, at -.

Power LLC, served as the witness for Kairos. 58 William Jessup, Chief, Advanced Reactor

Licensing Branch, DANU, NRR; Edward Helvenston, Project Manager, DANU, NRR; Chris Van

Wert, Senior Technical Advisor for Reactor Fuel, Division of Safety Systems, NRR; Alexander

Chereskin, Materials Engineer, DANU, NRR; Michelle Hart, Senior Reactor Engineer, DANU,

NRR; and Alexandra Siwy, Senior Nuclear Engineer, DANU, NRR, testified for the Staff. 59

Kaiross testimony focused on the inherent safety features of the Hermes test reactor,

including how the TRISO fuel and the Flibe coolant allow for the use of functional containment in

making Kaiross safety case. 60 The Staffs testimony addressed the regulatory requirements for

issuing a construction permit and covered novel technical issues presented by the Hermes test

reactor, including the TRISO fuel, molten salt coolant, high temperature materials, functional

containment, and passive accident response. 61 Following the safety panel presentations, we

posed questions to witnesses for both Kairos and the Staff.

58 Tr. a t - (Mr. Blandford); Scheduling Note, Encl. at.

59 Id. at - (Mr. Jessup, Mr. Helvenston, Mr. Van Wert, Mr. Chereskin, Ms. Hart, Ms. Siwy);

Scheduling Note, Encl. at.

60 Tr. a t - (Mr. Blandford).

61 Id. at - (Mr. Jessup, Mr. Helvenston, Mr. Van Wert, Mr. Chereskin, Ms. Hart, Ms. Siwy).

c. Summary of the Environmental Panel

The environmental panel focused on the FEIS, including the proposed federal action,

purpose and need for the project, the environmental review process and public outreach, NEPA

findings, and alternatives to the proposed action. 62 Peter Hastings, Vice President, Regulatory

Affairs and Quality, represented Kairos. 63 Kenneth Erwin, Branch Chief, New Reactor

Environmental Review Branch, REFS, NMSS; Tamsen Dozier, Project Manager, REFS, NMSS;

and Peyton Doub, Environmental Scientist, REFS, NMSS, testified on behalf of the Staff. 64

Mr. Hastings discussed the environmental report, the site-selection process, and characteristics

of the Hermes test reactor site. 65 The Staff described the proposed federal action, its

environmental review process, evaluation of alternatives to the proposed action, consultation

with other agencies and tribes, public outreach, and consideration of and conclusions on

environmental impacts.66 Following the environmental panel presentations, we posed questions

to witnesses for both Kairos and the Staff.

. Post-Hearing Activities

After the hearing, we adopted corrections to the hearing transcript and admitted a

revised Staff exhibit.67 We held the record open because the Staff had not yet completed its

62 Id. at - (Mr. Hastings, Mr. Erwin, Ms. Dozier, Mr. Doub); Scheduling Note, Encl. at ;

Ex. KRS-, Kairos Environmental Panel Presentation, at -; Ex. NRC-, Staff Environmental Panel Presentation, at -.

63 Tr. a t - (Mr. Hastings); Scheduling Note, Encl. at.

64 Id. at - (Mr. Erwin, Ms. Dozier, Mr. Doub); Scheduling Note, Encl. at.

65 Tr. a t - (Mr. Hastings).

66 Id. at - (Mr. Erwin, Ms. Dozier, Mr. Doub).

67 Order of the Secretary (Adopting Transcript Corrections and Admitting Revised Exhibit)

(Nov., ) (unpublished).

consultation activities under the NHPA. 68 On December, the Staff filed revisions to two

exhibits: NRC-, the draft construction permit, and NRC-, the draft record of decision. 69 In

the revised draft construction permit, the Staff made several non-substantive edits and replaced

placeholder language relating to NHPA section with a requirement that Kairos implement its

Archaeological Resource Monitoring and Unanticipated Discovery Plan. 70 In the revised draft

record of decision, the Staff documented completion of the NHPA section process for this

licensing action. 71 Kairos does not object to the admission of these exhibits. 72 Accordingly, we

strike exhibits NRC-and NRC-, admit exhibits NRC--R and NRC--R, and close

the evidentiary record.

DISCUSSION

As discussed in Section II.E, we find that Kaiross application meets our regulatory

requirements for issuance of a construction permit. Although we authorize issuance of a

construction permit, our decision does not constitute approval of the design. 73 Kairos has

represented that it will apply for an operating license and submit with that application a final

68 Id. at.

69 NRC Staff Exhibit List (Dec., ) (Staff Revised Exhibit List), at ; see Ex. NRC--R, Kairos Power LLC, Docket No. -, Hermes Test Reactor Construction Permit (Oct.,

) (Draft Construction Permit); Ex. NRC--R, Draft Summary Record of Decision, U.S.

Nuclear Regulatory Commission, Docket No. -, Construction Permit Application for the Kairos Hermes Test Reactor (Nov., ) (Draft Record of Decision).

70 See Staff Revised Exhibit List at - ; Ex. NRC- -R, Draft Construction Permit, app. A, at A-.

71 Staff Revised Exhibit List at ; Ex. NRC--R, Draft Record of Decision, at,.

72 Staff Revised Exhibit List at.

73 See C.F.R. §. (b) (A construction permit will constitute authorization to the applicant to proceed with construction but will not constitute Commission approval of the safety of any design feature or specification unless the applicant specifically requests such approval and such approval is incorporated into the permit.). Kairos did not request such approval.

safety analysis report, which will contain the final detailed design. 74 The discussion that follows

provides a survey of the key facts that support our findings and certain novel issues in the

Staffs safety review. We do not discuss every aspect of Kaiross construction permit application,

the Staffs review, or our sufficiency review. Our decision to authorize issuance of the

construction permit, however, is based on the record in its entirety.

A. The Proposed Design

Kaiross Hermes reactor will be configured as a pebble bed with a chemically stable,

low-pressure molten fluoride salt coolant known as Flibe. 75 The pairing of high-temperature-

tolerant TRISO fuel and low-pressure, single-phase, chemically stable reactor coolant reduces

the number of potential fuel-damage scenarios, thus simplifying the reactor design and reducing

the number of required safety systems. 76 For example, low-leakage, pressure retaining

containment structures are not necessary due to the low pressure of the reactor and associated

piping in combination with the fission product retention provided by the TRISO fuel. 77 The

Hermes design further relies on passive decay heat removal and does not require an

emergency core cooling system for decay heat re moval or replacement of coolant inventory. 78

The Hermes reactor has three major plant systems: the reactor system, the primary heat

transport system, and the decay heat removal system. 79 The facility includes engineered safety

74 See, e.g., Ex. KRS-, Kairos Testimony, at.

75 Ex. NRC-, Safety Evaluation, at -.

76 Ex. KRS-, Kairos Testimony, at.

77 Id.; Tr. at (Dr. Peterson).

78 Ex. KRS-, Kairos Testimony, at.

79 Id.

features that provide functional containment and decay heat removalthese features are

credited for mitigation of the consequences of postulated events. 80

Kairos uses a definition of safety-related structures, systems, and components that

differs from the definition found in C.F.R. §. to establish those structures, systems, and

components that are classified as safety related for the Hermes reactor. Specifically, in lieu of

using the integrity of the reactor coolant pressure boundary terminology in C.F.R. §.,

Kairos's definition reads: the integrity of the portions of the reactor coolant boundary relied

upon to maintain coolant level above the active core.81 Kairos uses this definition because the

Hermes reactor does not rely on the functional capability of the primary heat transport system to

remove decay heat from the reactor core, and the Staff found this definition acceptable for the

proposed facility.82

. TRISO Fuel

Hermes will use TRISO fuel particles embedded in a carbon matrix pebble. 83 The

pebbles are roughly the size of golf balls, and the TRISO particles are roughly the size of poppy

seeds.84 The fuel particle is composed of a uranium oxycarbide fuel kernel encased in coating

layers to limit fission product releases. 85 The fuel particles will contain high assay low enriched

80 See Ex. KRS-, Kairos Testimony, at.

81 Ex. NRC-, Safety Evaluation, at - (emphasis added). The Staff found that the C.F.R.

§. definition of safety-related structures, systems, and components is not applicable to the Hermes facility. Id.; Ex. NRC-, NRC Staff Responses to Commission Pre-Hearing Questions (Sept., ), at (Staff Pre-Hearing Responses).

82 Ex. NRC-, Safety Evaluation, at -, - to -.

83 Ex. NRC-, Staff Safety Panel Presentation, at.

84 Tr. a t (Mr. Van Wert).

85 Ex. NRC-, Staff Information Paper, at.

uranium.86 The coating layers are composed of pyrolytic carbon and silicon carbide. 87 In

addition, there is a carbon buffer layer between the kernel and the inner pyrolytic carbon layer

that serves to accommodate fission gases and limit pressure buildup. 88 The TRISO particles are

arranged in a fuel annulus near the outer surface of the pebble surrounding a low-density

graphite core.89 In addition to fuel pebbles, the reactor also contains moderator pebbles, which

have the same diameter as the fuel pebbles but contain no uranium and are made of graphite

material.90 Both the fuel and moderator pebbles are designed to maintain positive buoyancy

under normal operation and postulated events. 91 Pebbles are buoyant in Flibe and travel

upward through the core.92

The TRISO particle specification is based on the U.S. Department of Energy (DOE)

Advanced Gas Reactor program. 93 The TRISO fuel is similar to that developed for high

temperature gas-cooled reactors, and the coatings on the particle fuel have demonstrated

retention of fission products to temperatures above,°C. 94 In comparison, the Hermes test

reactor normal operating temperature is up to °C.95

86 Ex. NRC-, Safety Evaluation, at ii.

87 Ex. NRC-, Staff Information Paper, at.

88 Id.

89 Ex. NRC-, Staff Information Paper, at ; Tr. at (Mr. Van Wert); Ex. NRC-, Staff Safety Panel Presentation, at.

90 Ex. NRC-, Safety Evaluation, at -.

91 Id.

92 Id. at -.

93 Ex. NRC-, Staff Information Paper, at.

94 Id. at ; Ex. NRC-, Safety Evaluation, at - to - ; Tr. at - (Dr. Peterson).

95 Ex. NRC-, Staff Information Paper, at ; Ex. KRS-, Kairos Testimony, at.

The Staff evaluated the Kairos fuel qualification program as described in the topical

report and concluded that it meets the applicable regulatory requirements. 96 Tribology testing

will be conducted on fuel pebbles in two separate environments: ( ) Flibe with an argon cover

gas, and ( ) an argon only environment. 97 The coefficient of friction and wear rates will be

determined during tribology tests in both of these environments. 98 In its preliminary safety

analysis report, Kairos provided the relevant principal design criteria, a design description of the

TRISO particle and corresponding fuel elements (pebbles), and a preliminary analysis and

evaluation of the fuel element demonstrating the margins of safety during normal operations and

transient conditions anticipated during the life of the facility. 99 The Staff concluded that the

information was sufficient to conform to the applicable guidance and meet the regulatory

requirements of C.F.R. §§. and.. 100

Both fuel and moderator pebbles will be inspected by the pebble handling and storage

system as they are removed from the core. 101 Therefore, neither the fuel nor moderator pebbles

are expected to produce debris or dust in the reactor coolant that could inhibit the removal of

heat from the core.102

96 Id.; see Final Safety Evaluation for Topical Report KP-TR-, Revision, Fuel Qualification Methodology for the Kairos Power Fluoride Salt-Cooled High Temperature Reactor (KP-FHR),

(Mar., ) (ML A ).

97 Ex. KRS-, Kairos Power LLCs Responses to Commissions Pre-hearing Questions (Oct., ), at (Kairos Pre-Hearing Responses).

98 Id.

99 Ex. NRC-, Staff Information Paper, at.

100 Id.

101 Ex. NRC-, Safety Evaluation, at - ; Ex. KRS-, Kairos Pre-Hearing Responses, at.

102 Ex. KRS-, Kairos Pre-Hearing Responses, at ; Ex. NRC-, Safety Evaluation, at -

to -; see also Ex. NRC-, Staff Pre-Hearing Responses, at.

. Molten Salt Coolant

Flibe is a lithium fluoride-beryllium fluoride mixture ( LiF-BeF ).103 In the Hermes design,

the Flibe coolant is credited with supporting reactivity control and serving as a fission product

barrier.104 Flibe is able to retain radionuclides and prevent radionuclide release to the

environment during normal operations and postulated events. 105 The Staff reviewed the

capabilities of Flibe to retain fission products in its review of Karioss topical report on

mechanistic source term. 106

Flibe has advantageous heat transfer properties and is thermally and radiolytically stable

at high temperatures.107 But Flibe contains beryllium, which requires controls to mitigate

potential worker exposure, and the transmutation of lithium will generate tritium, which will also

need to be managed.108 The Staff will evaluate the potential beryllium hazard and its ability to

impact operations or accident response and the methods and systems to control tritium during

the operating license review. 109 During reactor operations, the Flibe coolant is expected to

accumulate impurities, which may affect the corrosion of primary system components, create

some circulating activity in the primary system, af fect reactivity characteristics, and potentially

affect thermophysical properties. 110 To ensure that the Flibe coolant maintains the properties

needed for natural circulation heat transfer, Kairos must monitor, and potentially correct, the salt

103 Ex. KRS-, Kairos Safety Panel Presentation, at.

104 Ex. NRC-, Staff Information Paper, at.

105 Ex. KRS-, Kairos Testimony, at.

106 Tr. a t (Mr. Chereskin).

107 Ex. NRC-, Staff Information Paper, at.

108 Tr. a t (Mr. Chereskin).

109 Id.

110 Ex. NRC-, Staff Information Paper, at.

composition.111 Kairos expects to include a limiting condition of operation to maintain the reactor

coolant composition within allowable limits as part of the technical specifications in its operating

license application.112

. High-Temperature Materials

The Hermes test reactor design operates at higher temperatures than light-water

reactors.113 Therefore, the primary system components must be qualified for these high

temperatures as well as for the Flibe coolant environment. 114 This construction permit

application is the first to reference American Society of Mechanical Engineers (ASME) Boiler

and Pressure Vessel Code Section III, Division, High Temperature Materials, which was

endorsed in NRC Regulatory Guide., Revision.115 Kairos will use H stainless steel and

ER-- - weld filler material for safety-related metallic components and ET-for graphite

reflector components.116

ASME Boiler and Pressure Vessel Code Section III, Division provides an approach to

ensure the mechanical and structural integrity of components that operate in high-temperature

environments. It specifies material properties, such as allowable stresses based on creep

damage for the metallic materials at the times and temperatures the Hermes reactor

111 Id.

112 See Ex. NRC-, Safety Evaluation, at -.

113 Ex. NRC-, Staff Information Paper, at.

114 Id.

115 Ex. NRC-, Staff Safety Panel Presentation, at ; Ex. NRC-, Staff Information Paper, at ; Tr. at (Mr. Chereskin).

116 Tr. a t - (Mr. Chereskin); Ex. NRC-, Staff Safety Panel Presentation, at - ;

Ex. NRC-, Staff Information Paper, at.

components will experience. 117 The use of Section III, Division also provides rules for aspects

related to structural and mechanical integrity for the use of H stainless steel. 118

ASME Boiler and Pressure Vessel Code Section III, Division does not address the

interactions between the Flibe environment and metallic structural materials. 119 Therefore,

Kairos submitted a topical report describing its qualification plan for metallic structural materials

used in Flibe-wetted areas for safety-related high-temperature components of its reactor

designs, including the Hermes test reactor. 120 The qualification plan includes extensive testing to

quantify degradation mechanisms in normal and postulated accident conditions, and the Staffs

evaluation of the topical report concluded that the Kairos qualification program for metallic

materials satisfies the regulatory requirements related to the qualification of H stainless steel

in the Flibe environment. 121

The Hermes test reactor uses graphite reflector blocks to moderate and reflect neutrons

back into the reactor core and protect the reactor vessel from the effects of neutron fluence. 122

The reflector blocks provide a heat sink for the core and form coolant flow channels, the pebble

defueling chute, and channels for the insertion and withdrawal of reactivity control and shutdown

elements.123 For graphite components, Kairos cited an approved topical report for the

117 Tr. a t (Mr. Chereskin).

118 Id.

119 Tr. a t (Mr. Chereskin).

120 See Metallic Material Qualification for the Kairos Power Fluoride Salt-Cooled High Temperature Reactor, KP-TR- -NP-A, Revision (Sept. ) (ML A ).

121 Ex. NRC-, Staff Information Paper, at.

122 Id.

123 Id.; Ex. NRC-, Safety Evaluation, at -.

qualification of the material. 124 In its evaluation of the topical report on graphite qualification, the

Staff concluded that the methodology is acceptable because it is generally consistent with

applicable portions of ASME Boiler and Pressure Vessel Code,Section III, Division, with

departures related to graphite material qualification. 125 The behavior of graphite as a function of

fluence and temperature is an important design consideration to ensure graphite components

maintain their integrity and perform their design functions. 126

. Functional Containment

The safety case for the Hermes reactor is based on the concept of functional

containment, which is a barrier, or a set of barriers taken together, that effectively limits the

physical transport of radioactive materials to the environment. 127 For the Hermes test reactor,

functional containment consists of physical barriers, operating conditions, coolant design, and

fuel form.128 We previously approved the concept of functional containment in

SRM-SECY--.129 Instead of using the event categorization scheme described in

SECY--, Kairos identified anticipated operational occurrences, design-basis events, and

beyond-design-basis-events, consistent with a maximum hypothetical accident (MHA)

124 See Graphite Material Qualification for the Kairos Power Fluoride Salt-Cooled High-Temperature Reactor, KP-TR- -NP-A, Revision (Sept. ) (ML A ).

125 Ex. NRC-, Staff Information Paper, at.

126 Id.; see Tr. a t - (Mr. Chereskin).

127 See Ex. KRS-, Kairos Safety Panel Presentation, at ; Ex. NRC-, Staff Safety Panel Presentation, at (citing SECY- -, Functional Containment Performance Criteria for Non-Light-Water-Reactors, (MLA)).

128 Ex. NRC-, Safety Evaluation, at -.

129 Staff RequirementsSECY-- Functional Containment Performance Criteria for Non-Light-Water-Reactors (Dec., ) (ML A).

approach.130 The MHA is intended to bound all postulated events in terms of dose

consequences, consistent with the guidanc e for non-power reactors in NUREG-.131

To establish the MHA, Kairos considered a broad range of event categories, including

insertion of reactivity, salt spills, loss of forced circulation, malfunction of the pebble handling

and storage system, radioactive releases from a subsystem or component, general challenges

to normal operation, internal hazards (fire and flood), and external hazards (seismic, wind, and

flood).132 The Staff concluded that Kaiross MHA analysis demonstrates that the dose

consequences of the MHA are within the accident dose criteria of C.F.R. §.(a). 133 Even

with conservative estimates for releases from TRISO fuel, tritium in graphite structures, and

argon-from activation of the cover gas, the MHA results in radiological doses at the site

boundary that are well below the siting criteria of rem and also below the U.S. Environmental

Protection Agency Protective Action Guides. 134

The safety case for the Hermes reactor does not rely on traditional containment barriers

like reactor coolant piping or the reactor building due to the effectiveness of the TRISO fuel

particle and the Flibe coolant at retaining radionuclides. 135 The fuel particle forms four of the five

fission product barriers credited for functional containment: the fuel kernel, an inner pyrolytic

carbon layer, a silicon carbide layer, and an outer pyrolytic carbon layer. 136 Additionally, the fuel

130 Ex. NRC-, Staff Information Paper, at.

131 See Ex. KRS-, Kairos Pre-Hearing Responses, at.

132 ACRS Letter at.

133 Ex. NRC-, Staff Information Paper, at.

134 ACRS Letter at. The dose consequences of the MHA are less than rem at the site boundary. Ex. KRS-, Kairos Safety Panel Presentation, at.

135 See Ex. KRS-, Kairos Safety Panel Presentation, at.

136 Ex. NRC-, Staff Information Paper, at.

particles are embedded in an annular shell arrangement inside a spherical pebble, which

provides physical protection against mechanical damage. 137 The majority of radioactive material

at risk for release is held within the TRISO fuel, and the Flibe coolant serves as an additional

barrier for release of radionuclides for submerged fuel pebbles. 138 Because the TRISO fuel and

Flibe coolant effectively contain fission products such as cesium and iodine, the MHAs dose

driving elements are mobile activation products, such as argon-and tritium, rather than fission

products.139

Kairos described the components and operating conditions that define the Hermes test

reactor functional containment in its preliminary safety analysis report. 140 Kairos also identified

key performance criteria on specific structures, systems, and components to ensure that the

MHA remains bounding: () specified acceptable system radionuclide release design limits for

the fuel and ( ) circulating activity limits for the Flibe coolant. 141

. Passive Accident Response

The reactor vessel system contains the reactor core and provides for circulation of

reactor coolant and pebbles as well as insertion of the reactivity control and shutdown system

elements in the reactor core. 142 The Hermes test reactor is designed with three safety-related

shutdown elements, only two of which are needed to shut down the reactor and maintain it in a

137 Ex. NRC-, Safety Evaluation, at -.

138 See Ex. KRS-, Kairos Safety Panel Presentation, at.

139 Ex. KRS-, Kairos Pre-Hearing Responses, at ; ACRS Letter at.

140 Ex. NRC-, Staff Information Paper, at.

141 Id.

142 Ex. NRC-, Safety Evaluation, at -.

safe condition.143 These elements have two positionsfully withdrawn or fully inserted. 144 The

shutdown elements accomplish a safe shutdown (reactor trip) through gravity insertion on a

reactor trip signal or on a loss of normal electrical power, after a short delay to mitigate spurious

trips.145 The reactor trip signal removes power from an electromagnetic clutch, which causes the

shutdown elements to fall into the core by gravity and shut down the reactor. 146

The reactor relies on passive decay heat removal and does not need an active

emergency core cooling system for decay heat re moval or replacement of coolant inventory. 147

The decay heat removal system removes residual decay heat from the reactor core through the

reactor vessel wall during both normal and off-normal conditions. 148 In postulated events where

the normal heat rejection system is unavailable, the decay heat removal system, along with

natural circulation flow within the core, provides heat removal from fuel in the reactor core via

thermal radiation and convection without the need for external sources of electrical power or

operator intervention.149 Natural circulation and the passive decay heat removal system reject

residual heat from the reactor core to the atmosphere. 150 The decay heat removal system and

143 See Ex. NRC-, Staff Pre-Hearing Responses, at.

144 Ex. NRC-, Staff Information Paper, at.

145 Id.; Ex. NRC-, Safety Evaluation, at -.

146 Ex. NRC-, Staff Safety Panel Presentation, at.

147 Ex. NRC-, Staff Information Paper, at ; Ex. KRS-, Kairos Overview Panel Presentation, at. Active emergency replacement of coolant inventory is not required based on the results of the maximum Flibe spill event. See Ex. NRC-, Safety Evaluation, - to

-. The evaluation determined that, without active emergency makeup, sufficient inventory was maintained to support adequate invessel natural circulation, to ensure the fuel remains covered, and to limit the heat up and radionuclide release. Additionally, the Staff determined that a Flibe salt spill beyond that assumed in the analysis is not expected to occur. Id. at -.

148 Ex. NRC-, Staff Information Paper, at.

149 Ex. KRS-, Kairos Testimony, at.

150 See Ex. KRS-, Kairos Safety Panel Presentation, at.

natural circulation together provide adequate heat removal to ensure that the vessel

temperature remains below design limits and that the fuel integrity is not challenged. 151

The decay heat removal system is made up of four independent trains to provide

redundancy in the event of a single failure. 152 The decay heat removal system has sufficient

inventory in the thermosyphons to operate for up to seven days to mitigate a postulated event

where normal cooling systems are unavailable. 153 The fluidic diodes, which are part of the

reactor internals and enable natural circulation when forced circulation is lost, will be subject to

planned qualification testing and inspection. 154 The Staff concluded that there is reasonable

assurance that the reactor vessel system will perform its safety functions of maintaining

structural integrity, geometry, and coolant inventory to ensure sufficient heat removal. 155

B. The Proposed Site

The site is located in an industrial area of Oak Ridge, Tennessee. The property is at the

site of former Buildings K-and K-of the DOE gaseous diffusion plant, where uranium

enrichment occurred between the mid-s and mid-s.156 The site boundary encompasses

acres, of which about acres would be permanently disturbed for operations of the

facility.157 The site is adjacent to Poplar Creek and. mile (. kilometer) from the Clinch River

arm of the Watts Bar Reservoir.158

151 Ex. KRS-, Kairos Testimony, at.

152 Id.

153 Ex. NRC-, Staff Information Paper, at.

154 Id.; Ex. NRC-, Safety Evaluation, at -.

155 Ex. NRC-, Staff Information Paper, at -.

156 Id. at ; Ex. KRS-, Kairos Testimony, at.

157 Ex. KRS-, Kairos Overview Panel Presentation, at.

158 Ex. KRS-, Kairos Testimony, at.

The Staff considered the relevant siting criteria in Part and guidance in NUREG-

and concluded that the Hermes facility can be constructed and operated at the proposed

location without undue risk to the health and safety of the public. 159 The Staff considered site

characteristics such as geography and demogr aphy; nearby industrial, transportation, and

military facilities; meteorology; hydrology; and geology, seismology, and geotechnical

engineering.160 In addition, the Staff evaluated structures, systems, and components and

equipment designed to ensure safe operation, performance, and shutdown when subjected to

extreme weather, floods, seismic events, missile s (including aircraft impacts), chemical and

radiological releases, and loss of offsite power. 161 As stated earlier, Kairos plans to operate the

reactor for four years. When the Staff assessed flooding hazards from potential dam failures, it

relied on this limited operating lifetime to approve the acceptability of the site. 162 Therefore, an

operating license, if issued, would include a lice nse term that would be limited to ensure the

validity of assumptions and conclusions in the safety analysis for the final design of the Hermes

facility.163

The Staff verified that the Hermes emergency planning zone size is appropriate and

consistent with guidance based on the preliminary MHA calculations, which indicate that

accident doses at the emergency planning zone boundary would not exceed the doses

recommended by the U.S. Environmental Protection Agency protective action guidelines of

rem total effective dose equivalent or rem projected child thyroid dose. 164 The Staff will

159 See C.F.R. §. (a)( )(ii).

160 Ex. NRC-, Safety Evaluation, at - to -.

161 Id.

162 Ex. NRC-, Staff Pre-Hearing Responses, at -.

163 Id. at.

164 Ex. NRC-, Safety Evaluation, at - ; Ex. NRC-, Staff Pre-Hearing Responses, at -.

review the final justification for the emergency planning zone size based on more detailed plant

design information during review of the operating license application. 165

In pre-hearing questions, we inquired into potential hazards associated with the

proposed Oak Ridge Airport. Kairos used DOE guidelines and methodologies in its evaluation of

crash frequencies related to the proposed airport in its preliminary safety analysis report. 166

Kairos will design the safety-related portion of the reactor building to withstand the impact of

general aviation aircraft associated with operations at the proposed airport. 167 Based on

information in the environmental assessment prepared by DOE for the proposed Oak Ridge

Airport, the Staff expects that the Beechcraft King Air i likely bounds the other types of

general aviation aircraft that would use the airport. 168 Additionally, Kairos stated that any

proposed configuration of the airport runways is not anticipated to change the need to design for

aircraft impact.169

C. Technical and Design Information for Later Consideration

Kairos has described the principal design features and the technology that it plans to

use, but Kairos will supply further technical and design information in the final safety analysis

report filed as part of the operating license application in accordance with C.F.R.

§. (a)( ). The construction permit will not constitute approval of the safety of any design

feature or specification.170 Because Kairos did not request approval of any design features or

165 Ex. NRC-, Staff Pre-Hearing Responses, at.

166 Ex. KRS-, Kairos Pre-Hearing Responses, at.

167 Id. at - ; see Ex. NRC-, Staff Pre-Hearing Responses, at.

168 Ex. NRC-, Staff Pre-Hearing Responses, at.

169 Ex. KRS-, Kairos Pre-Hearing Responses, at.

170 Ex. NRC-, Staff Information Paper, at ; Ex. NRC-, Staff Safety Panel Presentation, at.

specifications to be included in the construction permit, the Staff did not make any findings

regarding the safety of any Part design feature or specification. 171

The Staff identified two conditions to include in the construction permitone relating to

site characteristics and one relating to quality assurance. The first condition directs Kairos to

confirm the condition of bedrock supporting the facility and provides for examination of

excavations by the Staff, if necessary. 172 The second requires Kairos to implement its quality

assurance program for design, procurement, and construction of the Hermes reactor. 173 By

including this condition, the construction permit will have an explicit requirement comparable to

C.F.R. §. (f)( ). This condition will allow Kairos to make changes to the program without

prior NRC approval that do not reduce commitments in the program description previously

approved by the NRC, consistent with C.F.R. §. (f)( ).174 Without this license condition,

the Staff would need to approve a license amendment request from Kairos to make any

changes to the quality assurance plan regardless of whether the change would reduce a

commitment.175

As it finalizes the design of its facility, Kairos will need to complete the following research

and development activities: () perform a laboratory testing program to confirm fuel pebble

behavior; ( ) develop a high-temperature material surveillance sampling program for the reactor

vessel and internals; ( ) perform testing of high-temperature material to qualify Alloy H and

ER-- - ; ( ) perform an analysis related to potential oxidation in certain postulated events for

171 Ex. NRC-, Staff Information Paper, at ; Ex. NRC-, Staff Pre-Hearing Responses, at.

172 Ex. NRC-, Staff Safety Panel Presentation, at ; Ex. NRC-, Staff Information Paper, at ; Ex. KRS-, Kairos Testimony, at.

173 Ex. NRC-, Staff Safety Panel Presentation, at ; Ex. NRC-, Staff Information Paper, at ; Ex. KRS-, Kairos Testimony, at.

174 Ex. KRS-, Kairos Pre-Hearing Responses, at.

175 Id.

the qualification of the graphite used in the reflector structure; ( ) develop and validate computer

codes for core design and analysis methodology; ( ) develop a fluidic diode device to ensure

proper circulation during normal operation and passive cooling by natural circulation; ( ) justify

thermodynamic data and associated vapor pressu re correlations of representative species;

( ) develop process sensor technology for key reactor process variables; and ( ) develop the

reactor coolant chemical monitoring instrumentation. 176 The Staff listed these activities in

Appendix A, Section A. of the Safety Evaluation and will verify that they are completed prior to

the completion of construction, which Kairos projects to be December. 177

The Staff will also track several other items listed in Appendix A, Section A. of the

Safety Evaluation that Kairos must address in its operating license application. 178 This list

contains elements of design, analysis, and administration that are not necessary for issuance of

a construction permit but need additional development or resolution before issuance of an

operating license.

After reviewing the construction permit application, the ACRS recommended that Kairos

address three topics in the operating license application: ( ) combustible gas generation,

( ) tritium release levels, and ( ) management of airborne tritium and beryllium in the facility. 179

In response to the ACRS review, the Staff stated that it will consider the identified topics in its

review of the operating license application. 180 In response to our pre-hearing questions, Kairos

stated that the specific instrumentation of the tritium management system and its capabilities to

176 Ex. NRC-, Staff Information Paper, at - ; Ex. KRS-, Kairos Testimony, at.

177 Ex. NRC-, Staff Information Paper, at ; Ex. KRS-, Kairos Testimony, at -; see also Ex. NRC--R, Draft Construction Permit, at.

178 See Ex. KRS-, Kairos Testimony, at.

179 Ex. NRC-, Staff Safety Panel Presentation, at, ; Tr. at (Mr. Chereskin).

180 See Letter from Robert Taylor on behalf of Andrea D. Veil, NRR, to Joy L. Rempe, ACRS (June, ) (ML A).

measure tritium, for comparison with limits deriv ed from the MHA, will be discussed in further

detail in the final safety analysis report. 181

D. The Staffs Environmental Review

As required by our regulations, the Staff prepared an environmental impact statement

(EIS) for the Hermes construction permit application. 182 Although the Staffs safety review was

limited to the findings necessary for issuance of the construction permit, the Staffs

environmental review was broader in scope. In addition to evaluating the environmental impacts

of facility construction, the Staff evaluated the impacts of facility operation and decommissioning

to the extent that information was available for these activities. 183 In its review of the Hermes

project, the Staff made effective use of existing resources, such as the recently completed EIS

for the Tennessee Valley Authoritys early site permit application for the Clinch River small

modular reactor project, which would be situated approximately two miles south of where the

Hermes reactor would be constructed. 184

The Staff issued the draft EIS (DEIS) in September and the FEIS in August

. 185 After publishing a notice of its intent to prepare an EIS, the Staff conducted a virtual

joint public outreach and scoping meeting in March. 186 The Staff received public comments

181 Ex. KRS-, Kairos Pre-Hearing Responses, at - ; Ex. NRC-, Staff Pre-Hearing Responses, at -.

182 See C.F.R. §. (b)( ) (requiring EIS for issuance of a permit to construct a nuclear testing facility); Ex. NRC-, FEIS, at xiii, -.

183 Ex. NRC-, FEIS, at -, -. The Staff would perform separate environmental reviews for any subsequent licensing actions, such as an operating license application, operating license renewal, and decommissioning.

184 See id. at -.

185 Environmental Impact Statement for the Construction Permit for the Kairos Hermes Test Reactor (Draft Report for Comment), NUREG- (ML A); Ex. NRC-, FEIS.

186 Ex. NRC-, FEIS, at -. The Staffs decision to conduct a virtual meeting was based on high Covid-transmission rates in the Oak Ridge area at that time. Id. at G-.

during a sixty-day scoping process in early. The Staff also conducted a virtual

environmental audit in March to verify information in the Kairos environmental report and

discuss information needs with Kairos staff and their contractors. 187 The DEIS was issued for

public comment, and the comments received were addressed by the Staff in the FEIS. 188

As discussed above, the proposed site for the Hermes project is a -acre site in the

Heritage Center Industrial Park of the East Tennessee Technology Park, located within the

corporate limits of the City of Oak Ridge, Tennessee. 189 The industrial park was established on

land formerly owned by DOE, and the site proposed for the Hermes project was previously the

site of two buildings that formed part of the Oak Ridge Gaseous Diffusion Plant. These buildings

were razed after the gaseous diffusion plant ceased operations in the s, and the site was

environmentally remediated and released for industrial reuse, subject to certain restrictions. 190

Most of the -acre site consists of developed land and herbaceous grassland, with bands of

forested land in perimeter areas between previously developed land and adjacent waterways. 191

The site is bounded on the south and east by Poplar Creek, and the Clinch River arm of the

Watts Bar Reservoir lies near the western border of the site boundary. 192 The Hermes project

would make use of existing industrial infrastruc ture, with the exception of additional roads and

187 Id. at -.

188 Id., app. G.

189 Id. at -.

190 Id. at -, G-to G-. These restrictions pertain to the use of and occupational exposure to contaminated groundwater and at the site. See id. at G-to G-.

191 Id. at -.

192 Id. at - fig. -, -. The only wetland on or adjacent to the Hermes site occurs in the forested perimeter lands adjoining Poplar Creek. Id. at - to -.

parking lots that would be constructed to service the -acre portion of the site on which the

reactor and its auxiliary buildings would be situated. 193

The Staff evaluated the environmental impacts of constructing, operating, and

decommissioning the Hermes reactor across a variety of resource areas: land use and visual

resources; air quality and noise; hydrogeology and water resources; ecological resources;

historic and cultural resources; socioec onomics and environmental justice; human health;

nonradiological waste management; uranium fuel cycle and radiological waste management;

transportation; accidents; and climate change. 194 The Staff also analyzed the cumulative

environmental impacts of other projects proposed in the Oak Ridge region in conjunction with

the Hermes project for each resource area considered. 195 The Staff found that the direct and

indirect impacts of the proposed action in each of these areas would be small. 196 Impacts are

considered small if they are not detectable or are so minor that they will neither destabilize

nor noticeably alter any important attribute of the resource. 197

In July, Kairos submitted a construction permit application for the Hermes

project, a two-unit fluoride salt-cooled, high temperature test reactor that would be situated

adjacent to the Hermes test reactor. We asked the Staff whether the analysis in the FEIS

accounted for the cumulative impacts of the applicants new proposed project. The Staff

193 See id. at -.

194 Id. at - tbl. -.

195 Id. at -. These included continuing DOE operations at Oak Ridge National Laboratory and the Y-site; industrial development in the East Tennessee Technology Park; the Ultra Safe Nuclear Corporation Pilot Fuel Manufacturing Facility; the Sequoyah and Watts Bar nuclear plants; and future projects such as the construction and operation of small modular reactors at the Clinch River Nuclear site; the applicants plan to construct and operate the Kairos Atlas Fuel Fabrication Facility at the Hermes site; the planned TRISO-X fuel fabrication facility; and development of a general aviation airport to the south of the Hermes site. Id. at -.

196 Id. at - tbl. -.

197 Id. at -.

explained that the FEIS was published too soon after submission of the Hermes application to

account for these impacts in the Hermes FEIS, but that an evaluation was performed to

determine the significance of the Hermes project on the FEISs cumulative impacts

analysis.198 The Staff concluded in this evaluation that the proposed Hermes project would

not alter the conclusion in the FEIS that the cumulative impacts from the Hermes reactor and

other past, present, and reasonably foreseeable ac tions would be SMALL for all environmental

resources.199 Accordingly, the Staff determined that information in the Hermes application did

not require preparation of a supplement to the Hermes FEIS. 200

To fulfill its obligations under section of the Endangered Species Act of, the Staff

compiled a table of federally listed endangered species using databases maintained by the U.S.

Fish and Wildlife Service (FWS) and the Tennessee Department of Environment and

Conservation, and the information in Kaiross environmental report. 201 The Staff defined the

action area for the purposes of this review as the -acre Hermes site, which consists of lands

previously disturbed by DOEs operations but also includes, for conservatism, slivers of riparian

forested land on the site bordering Poplar Creek that might be affected by project-related

198 Ex. NRC-, Staff Pre-Hearing Responses, at -.

199 Memorandum from Christopher M. Regan, Director, Division of Rulemaking, Environmental, and Financial Support, NMSS, to John W. Lubinski, Director, NMSS, Consideration of New Information Regarding Potential Cumulative Impacts from the Proposed Kairos Hermes Te s t Reactor on the Kairos Hermes Construction Permit Review (Sept., ), Encl. at (ML A (package)).

200 Id.

201 Ex. NRC-, FEIS, at -, -. Section of the Endangered Species Act requires an agency, in consultation with the Secretary of the Interior or the Secretary of Commerce (as appropriate), to ensure that any action authorized, funded, or carried out by such an agency...

is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat of such species.

Endangered Species Act § (a)( ), U.S.C. § (a)( ). The Fish and Wildlife Service (under the Department of the Interior) and the National Marine Fisheries Service (under the Department of Commerce) jointly administer the Act.

noise.202 The Staff identified the potential for four federally listed engendered species, four

federally listed threatened species, and one federal candidate species to occur at the site. 203 At

the request of the FWS, the Staff included in the FEIS a biological evaluation addressing the

potential impacts from the Hermes project on these species. 204 Because of historical

disturbances to the affected site and the lack of disturbance to forest and other natural

vegetation, wetlands, or aquatic habitat from construction activities, the Staff found that effects

on terrestrial wildlife habitats would be minimal, and the potential ecological impacts of the

proposed action would be small. 205 The Staff determined that the Hermes project may affect, but

is not likely to adversely affect (or would not affect), any of these endangered species. 206 On

January,, the FWS concurred with the Staffs conclusions in its biological evaluation,

which completed the NRCs responsibilities under section of the Endangered Species Act.207

The Staff originally proposed to include a condition in the Environmental Protection Plan

(EPP), which is incorporated into the constructi on permit, that Kairos must request a license

amendment to incorporate the requirements of any Terms and Conditions set forth in the

Incidental Take Statement of Biological Opinions issued subsequent to the effective date of this

EPP.208 However, the Staff did not engage in formal consultation with FWS and, as a result, did

202 Ex. NRC-, FEIS, at -.

203 Id. at -. The endangered species are the gray bat, the Indiana bat, and two freshwater clam speciesthe finerayed pigtoe and shiny pigtoe. The threatened species are the northern long-eared bat, the spotfin chub, and two plant speciesthe Virginia spiraea and white fringeless orchid. The federal candidate species is the monarch butterfly. The Staff did not identify the presence of critical habitat within the action area. Id. at - to -.

204 Id. at - ; see id. at - to - & tbl. -.

205 Id. at -.

206 Id. at -.

207 Id. at -.

208 See Ex. NRC--R, Draft Construction Permit, app. A, Environmental Protection Plan.

not receive from FWS a biological opinion containing an Incidental Take Statement with Terms

and Conditions.209 In response to our pre-hearing question asking about the necessity of this

condition, the Staff elected to remove this condition from the construction permit and noted that

it will consider whether the condition should be added at the operating license stage. 210

Section of the NHPA requires federal agencies to consider the effects of their

undertakings on historic properties listed or eligible for listing on the National Register of Historic

Places.211 The section process must be completed prior to the issuance of any license. 212

The Staff considered the direct effects of the construction and operation of the Hermes facility

on the -acre Hermes site, as well as the indirect effects of these activities on a. -mile area

around the site.213 Relying on an environmental assessment prepared in by DOE for the

East Tennessee Technology Park, the Staff initially concluded that there are likely no intact

archaeological sites or prehistor ical archaeological resources to be found within the APE due to

extensive prior cut and fill excavation activities associated with construction of the former DOE

facilities and their subsequent decontamination, demolition, and decommissioning. 214 However,

in response to a comment on the DEIS from a consulting tribe, the Staff gathered additional

209 See Ex. NRC-, Staff Pre-Hearing Responses, at.

210 Id.

211 Section of the NHPA requires federal agencies to consider the effects of their undertakings on historic properties listed or eligible for listing on the National Register of Historic Places. NHPA §, U.S.C. §. The NRCs undertaking is the issuance of a construction permit to Kairos that allows for the construction of the proposed Kairos Hermes project. Ex. NRC-, FEIS, at -.

212 C.F.R. §. (c).

213 Ex. NRC-, FEIS, at -. Together, these areas constitute the area of potential effects (APE) for the NRCs section review. See generally id. at - to -.

214 See DEIS at -, -. The Staff also reviewed information held by the Tennessee Historical Commission and determined that there are no extant architectural resources within the direct-effects APE. Id.

information from DOE related to the geology and geomorphology of the site, as well as the total

area and depth of prior disturbance at the former DOE facility locations. 215 Based on this new

information and a discussion with DOE, the Staff determined that there is a potential for deeply

buried archaeological deposits to occur within the APE. 216

To satisfy its consultation responsibilities under the NHPA, the Staff contacted the

Tennessee Historical Commission, the Advisory Council on Historic Preservation, the National

Park Service, and eighteen federally recognized Indian tribes. 217 The Tennessee Historical

Commission advised that the Kairos project would not adversely affect the Manhattan Project

National Historic Park, the only property located within the APE that is eligible for listing on the

National Register of Historic Places. 218 In December, after publication of the DEIS, one

Tribe initiated government-to-government consultation, requested consulting party status, and

requested that a cultural resources survey be conducted for the proposed project. 219 The Staff

met with Kairos several times between February and April to discuss information needs to

support the Staffs consultations with the Tribe. In April, the Staff forwarded additional

information Kairos provided to the consulting Tribe for review and comment. Between June and

the publication of the FEIS in August, the Staff met with the Tribe and Kairos to discuss the

Tribes request for an additional reconnaissance field investigation, updates to the

215 Ex. NRC-, FEIS, at -, see id. at G-to G-.

216 Id. at -.

217 Id. at -.

218 Id. at -, -. The Manhattan Project National Historical Park, which is jointly administered by DOE and the National Park Service, includes the K-History Center, which opened in and focuses on the men and women who built and operated the K-Gaseous Diffusion Plant during the Manhattan Project and Cold War. Id. at -; see National Park Service, K-History Center, https://www.nps.gov/places/k- -history-center.htm (last visited Nov., ).

219 Ex. NRC-, FEIS, at -, G-to G-.

archaeological resource monitoring and unanticipated discovery plan, and a path forward to

support NHPA section consultation closure. 220

The Staffs section consultation efforts were still in progress when we held the

hearing on Kaiross construction permit application. Prior to the hearing, we asked the Staff to

clarify the purpose of the additional reconnaissance field investigation and the basis for the

Staffs conclusions regarding impacts to historic and cultural resources from the Hermes

project.221 At the hearing, the Staff informed us that Kairos had completed the requested field

investigation, had used the resulting information to update its monitoring plan, and had

incorporated the Staffs and Tribes input into the plan. 222

After the hearing, the Staff provided notice of consultation closure in a revised draft

record of decision.223 The draft record of decision explained that after Kairos submitted the

updated monitoring plan and Geoarchaeological Reconnaissance Survey Report, the Staff sent

the monitoring plan and Kaiross report to the Tennessee Historical Commission and the

consulting Tribe.224 The Tennessee Historical Commission responded that it had no objections

to the project proceeding as proposed. Likewise, the consulting Tribe stated that it had no

objections to the project proceeding, provided th e NRC agrees to notify the consulting Tribe of

changes to project activities on the site and to any unanticipated discoveries. 225 The Staff noted

that these stipulations were previously discussed and agreed upon between the consulting

220 Id. at - to -; Ex. NRC-, Staff Information Paper, at, ; Ex. NRC-, Staff Pre-Hearing Responses, at.

221 See Pre-Hearing Questions Order at -.

222 See Tr. a t (Mr. Regan); see also Ex. NRC--R, Draft Record of Decision, at (stating that the reconnaissance field investigation was completed in August ).

223 See Staff Revised Exhibit List at ; Ex. NRC--R, Draft Record of Decision, at.

224 Ex. NRC- -R, Draft Record of Decision, at.

225 Id.

parties and that the NRCs process for implementing these stipulations had been documented in

a memorandum to the NRCs Federal Preservation Officer. 226

Because there are no known historic properties on the proposed Hermes site and

mitigation measures will be in place to protect any undiscovered resources, the Staff determined

under the NHPA that there would be no adverse effects to historic properties from the proposed

undertaking.227 For the same reason, the Staff concluded for the purposes of NEPA that the

potential environmental impacts on cultural and historic resources from constructing, operating,

and decommissioning the Hermes project would be small. 228

In its environmental review of the Hermes project, the Staff also analyzed alternatives to

the proposed action.229 This review included consideration of the no-action alternative and one

alternative site.230 For the no-action alternative, i.e., if the construction permit were to be denied,

the Staff found that the environmental effects described in the FEIS would not occur, but

because these effects were found to be small, any environmental benefit from selecting the

no-action alternative would be minimal. 231 Moreover, the proposed site would remain available

for other government or private industrial development projects, which might lead to similar

226 Id. (citing Memorandum from Tamsen Dozier, NRC, to Christopher M. Regan, NRC, Implementation of Provisions from Consultations Under Section of the National Historic Preservation Act on the Kairos Hermes Test Reactor Construction Permit Review (Nov.,

) (ML A).

227 See id. at, ; Ex. NRC-, Staff Pre-Hearing Responses, at -; Ex. NRC-, FEIS, at - to -.

228 See Ex. NRC- -R, Draft Record of Decision, at,, ; Ex. NRC-, Staff Pre-Hearing Responses, at -; Ex. NRC-, FEIS, at - to -.

229 Ex. NRC-, FEIS, ch..

230 Id. at -.

231 Id.

environmental effects as the proposed project. 232 In addition, this alternative would not meet the

purpose of the proposed actionto demonstrate key elements of the Kairos Power Fluoride

Salt-Cooled, High Temperature Reactor technology for possible future commercial

deployment.233

After reviewing the applicants systematic site-selection process and finding it to have

been reasonable, the Staff examined an alternative site on federal land approximately twenty

miles west of Idaho Falls, Idaho, termed the Eagle Rock site. 234 The Staff compared the

environmental costs and benefits of the proposed action at the Eagle Rock site with the costs

and benefits of the proposed action at the Oak Ridge site. The Staff found that the impacts at

the Eagle Rock site would be small for all res ource areas except for visual, ecological, and

cultural resources, which would experience moder ate impacts from construction, reflecting the

Staffs determination that building the Hermes facilities at the Eagle Rock site could be visually

intrusive in that rural setting and would require disturbance of soils supporting natural

vegetation and potentially containing subsurface archaeological resources. 235 With the Oak

Ridge site presenting only small environmental impacts, as contrasted with the Eagle Rock site,

the Staff concluded that the Oak Ridge site was the environmentally preferable alternative. 236

On the basis of its environmental review, the Staff recommended issuing the

construction permit to Kairos.237 At the operating license stage, the Staff will prepare a

232 Id.

233 Id. at -; see id. at -. For the same reason, Kairos and the Staff did not consider alternative technologies for the Hermes reactor. Id. at -.

234 Id. at -.

235 Id. at - to -, - & tbl. -.

236 Id. at - to -.

237 Id. at -. The Staff conditioned its recommendation on completion of the NHPA section process, which was not yet complete at the time the FEIS was issued. Id.

supplement to the FEIS to address any new and si gnificant information that was not available

during its review of the construction permit application. 238

E. Findings

We have conducted an independent review of the sufficiency of the Staffs safety

findings, with particular attention to the topics discussed above. Our findings, however, are

based on the record as a whole.

. Safety Findings

Based on the evidence presented in the uncontested hearing, including the Staffs

review documents and the testimony provided, we find that Kairos has described the proposed

design of the facility, including, but not limited to, the principal architectural and engineering

criteria for the design, and it has identified major features or components incorporated therein

for the protection of the health and safety of the public. 239 Further technical or design information

as may be required to complete the safety analysis has reasonably been left for later

consideration and will be supplied in the final safety analysis report. Kairos has described the

safety features or components that require research and development and has identified and

will establish a research and development program reasonably designed to resolve any safety

questions associated with these features or components. On the basis of the foregoing, we find

that there is reasonable assurance that open safety questions will be resolved satisfactorily at or

before the latest date stated in the application for completion of construction of the proposed

facility. Taking into consideration the site criteria in C.F.R. Part, the proposed facility can

be constructed and operated at the proposed location without undue risk to the health and

safety of the public.

238 See C.F.R. §. (b); Ex. NRC-, FEIS, at - ; Tr. at (Mr. Doub) (stating that the Staff would supplement the EIS and update the analysis for later life cycle stages should the applicant apply for future licenses for Hermes).

239 See Ex. KRS-, Kairos Pre-Hearing Responses, at -.

In making these findings, we also conclude that: () there is reasonable assurance that

construction of the facility will not endanger the health and safety of the public, and the

authorized activities can be conducted in compliance with the NRCs regulations, including the

requirements in C.F.R. Part ; ( ) Kairos is technically and financially qualified to engage in

the activities authorized;240 ( ) issuance of the construction permit will not be inimical to the

common defense and security or to the health and safety of the public; and ( ) Kaiross

application meets the standards and requirements of the AEA and the NRCs regulations.

Required notifications to other agencies have been duly made. 241 Additionally, we find that the

Staffs proposed permit conditions are appropriately drawn and sufficient to provide reasonable

assurance of adequate protection of public health and safety. 242

. Environmental Findings

We also conducted an independent review of the Staffs environmental analysis in the

FEIS, taking into account the particular requirements of NEPA. NEPA section ( )(A) requires

agencies to use a systematic, interdisciplinary approach which will ensure the integrated use of

the natural and social sciences and the environment al design arts in decision making that may

impact the environment.243 We find that the environmental review team used the systematic,

interdisciplinary approach that NEPA requires. 244 The environmental review team consisted of

240 Ex. NRC-, Safety Evaluation, chs., ; Ex. NRC-, Staff Information Paper, at ;

Ex. KRS-, Kairos Testimony, at -.

241 See, e.g., C.F.R. §.(a); Ex. NRC-, Staff Pre-Hearing Responses, at ;

Ex. NRC-, FEIS, app. B.

242 See C.F.R. §§. (b),. ; Ex. NRC--R, Draft Construction Permit, at -.

243 NEPA § 102(2)(A), 42 U.S.C. § 4332(2)(A), as amended.

244 See, e.g., Tr. at - (Mr. Erwin, Ms. Dozier, Mr. Doub) (providing an overview of the Staffs environmental review methodology and findings); Ex. NRC-, Staff Environmental Panel Presentation, at -.

over two dozen individuals with expertise in disciplines including ecology, geology, hydrology,

human health, socioeconomics, and cultural resources. 245

In addition to the general requirement that an EIS address the reasonably foreseeable

environmental effects of a proposed action, NEPA section ( )(C) requires federal agencies to

describe ( ) any reasonably foreseeable adverse environmental effects which cannot be

avoided should the proposal be implemented; ( ) a reasonable range of alternatives to the

proposed agency action, including an analysis of any negative environmental impacts of not

implementing the proposed agency action in the case of a no action alternative, that are

technically and economically feasible, and meet the purpose and need of the proposal; ( ) the

relationship between local short-term uses and long-term productivity of the environment; and

( ) any irreversible and irretrievable commitments of federal resources associated with the

proposed agency action. 246 The Staffs evaluation of alternatives is in chapter of the FEIS and

summarized in chapter ; the other enumerated items are discussed under the heading of

resource commitments in chapter.

Because the Staff issued the FEIS shortly after Congress amended section ( )(C),

we asked the Staff to provide additional inform ation explaining how its environmental review

satisfied these standards, as amended by the Fiscal Responsibility Act. 247 The Staff stated that

245 See Ex. NRC-, FEIS, app. A tbl. A- (listing contributors from the NRC and Pacific Northwest National Laboratory).

246 NEPA § 102(2)(C)(i)-(v), 42 U.S.C. § 4332(2)(C)(i)-(v), as amended.

247 See Pre-Hearing Questions Order at 13, 15 -16; Tr. at 150-51 (Commissioner Wright). As noted above, pursuant to 10 C.F.R. § 51.105(a), we must determine whether the requirements of NEPA Sections 102(2)(A), (C), and (E) have been met, and determine as a general matter whether the NEPA review conducted by the NRC Staff has been adequate. The amendments to NEPA which became effective upon enactment of the Fiscal Responsibility Act substantively affect the requirements in NEPA section 102(2)(C ). For example, section 102(2)(C)(iii) has been amended to specify that the alternatives analysis must include a discussion of the negative impacts of not implementing the proposed action, and section 102(2)(C)(v) now requires an analysis of any irreversible and irretrievable commitment of federal resources, as opposed to the broader analysis of resources typically performed by the Staff to satisfy this requirement.

prior to issuing the FEIS, the Staff review ed the Fiscal Responsibility Act and the amendments

to NEPA, and found that the FEIS was consistent with the Staffs current understanding of these

new requirements and that it had made all the findings necessary in the FEIS to support

issuance of the construction permit. 248 In response to our question, the Staff revised the record

of decision to reflect this determination. 249 In further questions to the Staff before and during the

hearing, we asked the Staff to clarify whether the FEIS considered the irreversible and

irretrievable commitment of exclusively federal resources involved in issuing a construction

permit to Kairos, commensurate with the more specific analysis required by amended NEPA

section ( )(C)(v).250 The Staff explained that its comprehensive analysis of irreversible and

irretrievable resources in the FEIS accounted for federal resources as well. 251

a. Resource Commitments

Chapter of the FEIS includes a table of the unavoidable adverse environmental

impacts anticipated from construction, operation, and decommissioning, along with actions to

mitigate those impacts.252 As noted above, the Staff concluded that the impacts of the proposed

action in all resource areas would be small, despite the potential unavoidable adverse impacts

presented in this table. To address these unavoidable impacts, the Staff identified mitigation and

control measures that Kairos could implement to lessen some of these potential adverse

effects.253 Examples of such mitigation measures include instituting best management practices

to control dust and manage stormwater runoff, developing an Archaeological Resources

248 Ex. NRC-, Staff Pre-Hearing Responses, at -; Tr. at (Mr. Regan).

249 Ex. NRC-, Staff Pre-Hearing Responses, at -.

250 See Pre-Hearing Questions Order at -; Tr. at - (Commissioner Wright).

251 See Ex. NRC-, Staff Pre-Hearing Responses, at ; Tr. at (Mr. Doub).

252 Ex. NRC-, FEIS, at - to - tbl. -.

253 Id. at -.

Monitoring and Unanticipated Discovery Plan to address unexpected discoveries of human

remains and archaeological materials, and restori ng temporarily disturbed lands with native

plants or landscaping when no longer needed for construction or decommissioning activities. 254

Concerning irreversible and irretrievable commitments of federal resources, the Staff

found that construction of the Hermes facility would irretrievably commit capital, energy, labor,

and material resources, some of which are expended by the NRC during its review of the

Hermes application and would thus constitute federal resources. 255 Although the Staff did not

separately analyze federal resources in the FEIS, the Staff clarified that the FEIS analysis

considered the totality of resources, including but not limited to federal resources, and therefore

adequately addressed the requirements of the Fiscal Responsibility Act. 256 With respect to other

resources, the Staff concluded that construction of the Hermes facility would irretrievably

consume energy, water, chemicals, fossil fuels, as well as construction materials, unless Kairos

recycles them during decommissioning. 257 Historic and cultural resources buried beneath the

surface or in deeply buried paleosoils are nonrenewable and may be disturbed by

construction, but impacts to any such resources would be mitigated by implementation of

Kaiross Archaeological Resources Monitoring and Unanticipated Discovery Plan. 258 During

operations, uranium used in TRISO fuel pebbles would be irreversibly and irretrievably

committed, and nonradiololgical irreversible impacts on occupational human health could occur

but are expected to be comparable to potential hazards at any industrial construction site. 259

254 Id. at - to - tbl. -.

255 Id. at - ; Ex. NRC-, Staff Pre-Hearing Responses, at ; see also Tr. a t (Mr. Regan).

256 Tr. a t (Mr. Erwin, Mr. Doub).

257 Ex. NRC-, FEIS, at -.

258 Id.

259 Id. at - to -.

Finally, with respect to the relationship between local short-term uses and long-term

productivity of the environment, the Staff found that the short-term uses of the environment

construction, operation, and decommissioning of the Hermes facilitywould commit acres of

previously used industrial land over the life of the project and up to acres of land during

construction and decommissioning. Use of the entire -acre Hermes site would also be limited

during operation due to its designation as the exclusion area. 260 Further short-term uses of the

environment would include consumption of small quantities of water supplied by municipal or

commercial sources, small increases in demand for housing and services in the local

community, an increase in the volume of traffic on local roads, and energy consumption. 261 The

Staff noted that management and disposal of wasteradioactive, hazardous, and

nonhazardouswould consume space at treatment, storage, or disposal facilities, and the use

of land to meet waste disposal needs would reduce the long-term productivity of the land, but

Hermes would contribute only a minimal amount to these reductions. 262 In addition, in the short

term, the project would bring increased employ ment, expenditures, and tax revenues that would

directly benefit local, regional, and State economies. 263 As compared to the minimal impacts of

the project over the short term, the Staff found substantial potential long-term benefits from the

Hermes project, including demonstrating the commercial viability of its fluoride salt-cooled, high

temperature reactor technology, generating data helpful in future commercial deployment of the

technology, and helping the nation meet its climate change objectives with less reliance on more

land-intensive energy generation processes. 264

260 Id. at -.

261 Id. at -.

262 Id.

263 Id.

264 Id.

Having considered the unavoidable adverse environmental impacts and resource

commitmentsthe environmental costs of the projectas well as the projects benefits as

summarized above, we agree with the Staffs conclusion that the benefits of the project

outweigh the costs.265

b. Alternatives

The alternatives analysis is the heart of the environmental impact statement. 266 NEPA

section ( )(H), formerly section ( )(E), calls for agencies to study, develop, and describe

appropriate alternatives to recommended courses of action in any proposal which involves

unresolved conflicts involving alternative uses of available resources. 267 Further, section

( )(C) requires consideration of a reasonable range of alternatives to the proposed agency

action that are technically and economically feasible, and meet the purpose and need of the

proposed action. Where the alternatives considered include taking no action on the proposal,

the analysis must consider any negative environmental impacts of not implementing the

proposed agency action.268 Based on the Staffs testimony at the hearing, as well as the

discussion in the FEIS, we find that the environmental review identified an appropriate range of

alternatives with respect to the no-action alternative and the alternative Eagle Rock site, and

adequately described the environmental impacts of both alternatives. The Staffs decision not to

consider alternative technologies was reasonable in light of the purpose and need of the

proposed project, which is to demonstrate and test its reactor technologies. 269

265 Cf. C.F.R. §. (a); see Ex. NRC-, FEIS, at -.

266 C.F.R. pt., subpt. A, app. A, §.

267 NEPA § 102(2)(H), 42 U.S.C. § 4332(2)(H). In its review of the potential impacts associated with the proposed action, the Staff did not identify any unresolved conflicts concerning alternative uses of available resources. Ex. NRC-, FEIS, at -.

268 NEPA § 102(2)(C)(iii), 42 U.S.C. § 4332(2)(C)(iii), as amended.

269 See Ex. NRC-, FEIS, at -, -.

We also find that the Staff adequately considered the negative impacts of not

implementing the proposed action. For example, the Staff found that under the no-action

alternative, Kairos could not build the proposed Hermes reactor, and therefore would not have

an opportunity to test its technologies, design features, and safety functions at a reduced scale

relative to a potential commercial power reactor. The Staff noted that forgoing the opportunity

provided by Hermes may not necessarily preclude future development of reactors using the salt-

cooled, fluoride high temperature reactor technologies but anticipated that it could slow or

impede safe and efficient development of the technologies. 270 The Staff also identified that any

environmental benefits from implementing the proposed action would not be realized if the

action is not approved, and additionally, the proposed site would remain available for other

development projects, potentially giving rise to environmental impacts from land disturbance

and construction from those projects in the future. 271

In sum, we find reasonable the Staffs conclusion that, because there are no

environmentally preferable alternatives that meet the purpose and need of the proposed action,

... there are no obviously superior alternatives to the proposed action from an environmental

perspective.272

c. Commission Determination

For each of the topics discussed at the hearing and in todays decision, we find that the

Staffs review was reasonably supported in logic and fact and sufficient to support the Staffs

conclusions. Based on our review of the FEIS, we also find that the remainder of the FEIS was

reasonably supported and sufficient to support the Staffs conclusions. Therefore, as a result of

our review of the FEIS, and in accordance with the notice of hearing for this uncontested

270 Id. at -.

271 Id.; see also id. at G-.

272 Id. at -; see also id. at -.

- 49 -

proceeding, we find that the relevant requirements of NEPA section 102(2), and the applicable

regulations in 10 C.F.R: Part 51, have been satisfied with respect to the construction permit

application.273 We independently considered the final balance among conflicting factors

contained in the record of this proceeding. We find, after weighing the environmental, economic,

technical, and other benefits against environmental and other costs, and considering reasonable

alternatives, that the construction permit should be issued.

JII. CONCLUSION

We find that, with respect to the safety and environmental issues before us, the Staff's

review ofKairos's construction permit application was sufficient to support issuance of the

construction permit. We authorize the 'Director of the Office of Nuclear Reactor Regulation to

issue the permit for the construction of the Hermes Test Reactor. Additionally, we authorize the

Staff to issue the record of decision.

IT IS SO ORDERED.

For the Commission

~a0 C. ll-vr..~

Tomas E. Herrera Acting Secretary of the Commission

Dated at Rockville, Maryland, this 12th day of December 2023.

273 See supra note 26.

/i255/9/10 /i255/7/4/3/8/3/7/i255/5/4/3/2/1/0 /8/11/4 /12/i255/8/13/2

/4/15/0 /14/12/i255/12/8/4/14/13/0/1 /3/9/12 /16/8/13/9/i255/11/11/2 /7/2/9/1 /i255/7

/i255

/11 /i255 /20 /19 /18 /i255 /17 /24 /i255/i255/i255/i255/i255/25 /i255/23/2/i255/22/20/18/18/21

/i255/i255 /i255/i255/i255/i255/i255/25 /i255

/12/9/7/2 /8 /26 /27/9/28/4 /12/i255/13 /i255/i255 /i255 /i255/i255 /25 /i255/i255 /5 /23/14/14/i255/29 /13 /35 /38 /37 /33 /36 /35 /34 /33 /i255 /32 /23 /1 /i255 /18 /20 /31 /30 /i255 /27

/i255 /25

/25 /i255/i255 /i255 /i255/i255 /25 /i255/22/23/22/41/20 /42/18/20/30/40/21/39/20/12/i255/18/42/20/3/i255

/i255/i255 /i255/i255/i255/i255/i255/25