Offieiel Use Qr,I~ Seflsitive IAICFAal IA~BFFAaliBA DPO Case File for DP0-2018-002 The following pdf represents a collection of documents associated with the submittal and disposition of a differing professional opinion (DPO) from an NRC employee involving the NRC response to the Nuclear Energy Institute (NEI) concerning the regulatory path for lead test assemblies. Management Directive (MD) 10.159, "NRC Differing Professional Opinions Program," describes the DPO Program. https://www.nrc.gov/docs/ML 1513/ML 15132A664.pdf , The DPO Program is a formal process that allows employees and NRC contractors to have their differing views on established, mission-related issues considered by the highest level managers in their organizations, i.e., Office Directors and Regional Administrators. The process also provides managers with an independent, multi-person review of the issue (one person chosen by the employee). After a decision is issued to an employee, he or she may appeal the decision to the Executive Director for Operations (or the Commission, for those offices that report to the Commission). Because the disposition of a DPO represents a multi-step process, readers should view the records as a collection. In other words, reading a document in isolation will not provide the correct context for how this issue was reviewed and considered by the NRC. It is important to note that the DPO submittal includes the personal opinions, views, and concerns by NRC employees. The NRC's evaluation of the concerns and the NRC's final position are included in the DPO Decision. · The records in this collection are non-public and for internal use only. Document 1: Document 2: Document 3: Document 4: Document 5: Document 6: Document 7: DPO Submittal Memo Establishing DPO Panel DPO Panel Report DPO Decision DPO Appeal Statement of Views DPO Appeal Decision OFHcial Use Only Sensitive h1te111al ll1for1n8tioA Official use 01119 - ~e11s1t1ve 1111e111a1 1nrormat1on Document 1: DPO Submittal Offieial l:lse OAI~ SeAsiti,e l"ter"al l11fo1111atio11 O#isial blse GAly SeReitiYe IRterRel IRfel'ffletiel"I Document Markings ... NRC FORM680 (09-:?01 S1 NR,~~J· " U.S. NUCLEAR REGULATORY COMMISSION '',' /~\ :, \I: ';// If, ..... .. DPO Case Number Df'ti-Jo l8- 00'2 DIFFERING PROFESSIONAL OPINION Date Received I a-2 \ oy, NRO When the process is complete, I would like the DPO case file: SIGNATURE OF SUBMITTER ,, ,~ ·f?i '. ( -- ·" (, i {. I No names of potential panel members will be provided. I Non-Public I r-,!./)I Public DATE ' ~- ·'.··,.-:ff ,. 7,«c'{"·~) SIGNATURE OF CO-SUBMITIER (If any) DATE SCAN THE SIGNED AND DATED FORM (INCLUDE ANY CONTINUATION PAGES OR WORD DOCUMENTS) AND E-MAIL TO: DPQPM.Re~ourct;@!lrc.gov DATE SIGNATURE OF DPO PROGtM MAf"AGER / " . / I ·,)--/ . rI L~ Contlnuatl~-~·J j,, '.'l 20 \ li. Ir I ~ DPO accepted I t DPO n,tumed Document Markings ... Official Use ORiy SeRsiti>Je IRte~r:ial lotocroafioo / Add Continuation Page I "----------' Page 1 of 3 Offieiel Use 0Aly SeAsiti~·e IAteFABI IAfeFffletieA Document Markings ... NRC FORM 680 U.S. NUCLEAR REGULATORY COMMISSION DPO Case Number (09-2015) NRCMO 10 159 DIFFERING PROFESSIONAL OPINION (Continued) Date Received The NRC staff appears to have lost its objectivity and exhibited severe program mismanagement in its development of a licensing strategy for accident tolerant fuel (ATF). Although this mismanagement is most evident in the development of a "no licensing strategy" for lead test assemblies (L TAs), the loss of objectivity and mismanagement is evident at all levels of the NRC. This loss of objectivity has resulted in issuance of a letter from the NRC to the Nuclear Energy Institute (NEI) that incorrectly interprets regulatory requirements, as described below. Without consult of licensing experts in the Office of Nuclear Reactor Regulation (NRR) Division of Operating Reactor Licensing (DORL) or the 10 CFR 50.59 process experts in the Division of Inspection and Regional Support (DIRS) and NRC Regional Offices, NRC staff in the Division of Safety Systems (DSS) participated in closed meetings with the U.S. Department of Energy (DOE), reactor licensees, and others to discuss the licensing strategy for ATF. Of particular concern was a joint workshop on February 22-23, 2017, in Atlanta, GA. During that meeting, the NRC/DSS fuels expert stated that 10 CFR 50.59 should be acceptable for lead test rods, exemptions should not be needed from 10 CFR 50.46, and plant technical specifications allow LT As/L TRs. Of particular concern were the comments by the Jensen Hughes representative "regarding use of 50.69 and crediting additional coping time" (Attachment 1, NRC Trip Report pages 1-3, Sensitive - OUO). This presentation is particularly troubling as the Jensen Hughes representative retired from NRC only 4 months before having been the former NRR Deputy Director, RES Deputy Director, and NRO Director with some oversight of the ATF program during the course of her employment. Without consult of licensing experts in NRR/DORL and 10 CFR 50.59 experts in NRR/DIRS, or NRC Regional Offices, the same NRC/DSS fuels expert provided a similar presentation (Agencywide Documents Access and Management System (ADAMS) Accession No. ML 17180A017) at the 2017 Regulatory Information Conference (RIC), March 22-23, 2017. By letter dated May 19, 2017, NEI requested NRC to confirm the regulatory positions on ATF presented by the NRC presenter(s) at the 2017 RIC. Without consult of DORL, DIRS, or the NRC Regional Offices, the NRC DSS Director issued a letter dated June 29, 2017 (ADAMS Accession No. ML 17150A443), responding to the NEI Letter. This DPO contends the June 29 DSS letter to NEI is incorrect in the following areas: (1) It provides an incorrect reading of the technical specifications (TS) for LTAs, as the only relaxation is for representative testing, (2) All TS must be met, as written, in plain language, (3) All provisions of TS 4.2.1 have to be met (Zircaloy or ZIRLO cladding, U02 fuel, and NRC approved codes and methods), (4) the regulatory history is more consistent than asserted concerning amendments and exemptions (ADAMS Accession No. ML 18036A009), and limiting number and locations of LT As does not obviate the need to meet all TS requirements. In part, because of DORL and DIRS objections to the DSS letter dated June 29, 2017, NRR management issued a position paper dated October 25, 2017 (Attachment 2, non-publicly available). This DPO contends the following positions in the October 25 position paper are incorrect: (1) No exemption is required for non-zirconium fuel designs, (2) No license amendment request (LAR) is needed to change TS 4.2.1 (when improved TS language is used), and (3) 10 CFR 50.59 is a potentially viable path for implementing the Hatch LTA program. This DPO contends that both cases of Hatch LT As (chromium coated zircaloy and FeAICr alloy) would trigger an amendment under 10 CFR 50.59 (c)(2)(vii) or (c)(2)(viii) and exemptions are required. It is unacceptable to have a regulatory gap and no emergency core cooling (ECCS) acceptance criteria if it can be argued that 10 CFR 50.46 does not apply as a means to meet General Design Criteria (GDC) 35, Emergency core cooling. The positions described in the October 25 position paper reflect an egregious industry bias and loss of objectivity on the part of the NRC. On November 14, 2017, the NRC staff provided responses (Attachment 3, not publicly available) to Commissioner Saran's questions on the aforementioned position paper dated October 25, 2017. This DPO contends the November 14 responses are inaccurate and misleading with respect to: (1) "cherry picking" licensing action excerpts that fit the desired position on GL 90-02 (Supplement 1), TS, and 10 CFR 50.59 (Questions 1 and 2), rather than the larger body of licensing history on LT As (i.e., many exemptions and amendments), and (2) the extent to which an effective safety culture was maintained in the working group for the Hatch (Question 3). The outcome of this process was NRC FORM 680 (09-2015) Document Markings ... O#ieiel Use 0111, Sensitive h1le111al 111ro1111at1on -- Page 2 of 3 Offieiel 6Jee GAi) SeP'lsitioc l1ile111al l11fo1111al1011 Document Markings ... NRC FORM 680 (09-2015) NRC~D 10 159 u_s. NUCLEAR REGULATORY COMMISSION DIFFERING PROFESSIONAL OPINION (Continued) DPO Case Number Date Received con rive o suppo e e er a e une , , an e m 1v1 ua s represen mg expe 1se m 1censmg an CFR 50.59 were not respected as subject matter experts and were restricted severely from presenting views in an open collaborative work environment, by design. There is an urgent safety issue regarding the loading of LT As in Edwin I. Hatch Nuclear Power Plant, Units 1 and 2 (Hatch). Southern Nuclear Operating Company (SNC) plans to load ATF LT As in Hatch Unit 1 in early 2018. Without a submittal of any formal request for review or any docketed information, the NRC staff held a call with the SNC on October 31, 2017(Attachment 4, not publicly available), and stated that "SNC's approach is appropriate for the loading of the LT As at Hatch Unit 1 in the Spring of 2018. In the NRC staffs view, based on our understanding of SNC's plans, no exemption from NRC regulations would be needed for these LTAs; NRC's interpretation of Hatch TS 4.2.1 allows for the use of LTAs, as specified, so no license amendment is required to revise that TS; and SNC's intent to conduct a full evaluation of the proposed activity in accordance with 10 CFR 50.59 is appropriate. It was mutually acknowledged that the 10 CFR 50.59 evaluation of LT As could result in the licensee's determination that a license amendment is required, notwithstanding the NRC's position on TS 4.2.1." Although SNC subsequently provided information via a letter on January 10, 2018 (ADAMS Accession No. ML 18012A057), the fact remains that the SNC plans to load new cladding materials in the Unit 1 core that have that have never been in commercial reactor before. The NRC has no documented basis to support the expectation that these new cladding materials will perform as well as current operating fuel or that the new materials will not cause an increase in the occupational exposure to workers or the public. This DPO contends NRR "got it wrong" in its licensing decision on Hatch, based on the June 29 letter to NEI, and is now placing the entire burden of regulatory acceptability for LTAs on the regional inspection program that lacks the technical expertise and programs to evaluate these first-of-a-kind materials. The NRC has no docketed basis to conclude the following issues will not affect ATF fuel integrity and, thus, safety of the commercial operating reactors: ( 1) thermal conductivity degradation, fission gap behavior, and swelling of nonU02 fuels (e.g., U3Si2) at light-water reactor temperatures, (2) mechanical behavior of smaller pellet designs, (3) possible nonlinear behavior (creep, hardening, burst behavior) of FeCrAI cladding, (4) variations in cladding thickness, and (5) effects of coatings on cladding stress, strain, and displacement. The NRC is remiss in its safety mission by dismissing these issues for LT As based largely on "a limited number of lead test assemblies that have not completed representative testing may be placed in nonlimiting core regions." Separately, licensees have been engaging with NRC technical experts and executives outside the public meeting process in a manner that further compromises NRC objectivity. As an example, a former Deputy Director of NRR (now an industry executive), with prior responsibility for oversight of DSS reviews of reactor fuel licensing actions, has been highly engaged in attempting to negotiate LTA use without prior NRC review under 10 CFR 50.59, both during public meetings and in review of draft materials (Attachment 5, licensee proprietary, not publicly available). In a subsequent e-mail, NRR executives discuss having a call with the subject industry executive on the deliberations of the recently completed briefing of the NRC Executive Director for Operations (EDO) and planned briefing of the NRC Chairman (Attachment 6, not publicly available). The the extent of condition for (1) loss of objectivity, and (2) collusion with the industry to avoid licensing actions for ATF warrants an independent evaluation and/or investigation. The positions in the DSS letter dated June 29, 2017, have created unwarranted confusion over regulatory processes that have been working well for decades (i.e., amendments and exemptions for LT As). Licensees are expected to meet all the provisions of the TS, and not chooses which ones apply in favorable circumstance. The June 29 letter raises a policy issue in its partitioning of the LTA provision of TS 4.2.1, has generic implications on the entire body of TS requirements, and does not follow the Part 9900 guidance for developing TS interpretations. The June 29 letter also presents an interpretation of the regulations in 10 CFR 50.46 without a regulatory interpretation by the Office of the General Counsel as prescribed by the regulations in 10 CFR 1.23(c). Additionally, the suggested use of "unapproved analytical codes and methods" for LT As is in direct contradiction to NRC/NRR licensing procedures (Attachment 7) for acceptance review (LIC-109), amendments (LIC-101 ), and topical reports (LIC-500) and TS 4.2.1. NRC FORM 680 (09-2015) Document Markings ... Offieial Use ORiy i9RSiti••e IRt8FRal IRfeFR=latieR Page 3 of 3 Offieial \:Jee ORiy i&R&itiua lotei:oal lofocmafion Sensitive - Official Use Only Subject: Trip Report for Sixth EPRI/INUDOE Joint Workshop on Accident Tolerant Fuel Date/Location of Meeting: 22-23 February 2017 • Atlanta, Georgia, USA NRC Attendees Summary Four NRC staff, two from NRR and two from RES, attended the sixth annual EPRI/INUDOE Joint Workshop on Accident Tolerant Fuel (ATF). The workshop participants included utility, fuel vendor, national lab, EPRI, DOE and international representatives. Highlights from the workshop discussion are provided below. Staff also met with of DOE to discuss elements of an NRC/DOE MOU. A summary of that discussion is also included below. Highlights from EPRI/INL/DOE Joint Workshop Regarding industry's recent interest in accelerating the time line for A TF deployment: • Southern Nuclear, cited oil and gas power production fast approaching cost competitiveness with nuclear power production and fast approaching utility decisions on plant life extension as two reasons why industry must determine if ATF presents viable cost saving features within the next few years. The average 60-yr plant life of their BWR fleet is up in 2038 and their PWR fleet is up in 2041. - .... • • ~~psitive-,- Official Use Only Offieiel Use 0111~ Se11siti we IAteFA81 IA~eFFAetieA DPO ATTACHMENT 1 Offieial Use ORiy SeRsiti,·e IA&8~Ral IRfQ~atior:i Sensitive -- Official Use Only • • • • Exelon, explained that while all major technical areas of ATF operation will likely be covered by planned R&D to assess viability in the next few years, the following subjects may be "missed:" o Shipping, assembly/container handling, receipt inspection issues o Assembly subcomponent growth, interaction o Impact of ATF on functionality of nuclear instrumentation, online reactor analysis software EdF France, pushed back on the aggressive schedule, cautioning that fuel behavior cannot be extrapolated past empirical observations. Nicolas shared French experience on M5 to demonstrate his point, citing multiple "surprises" that were discovered through LT A programs, well after robust R&D seemed to be completed. The schedules that suggested batch reloads could be prepared before LTR/L TA irradiations were complete and analyzed brought his great hesitation. EPRI and GEH representatives referenced the development and deployment of barrier cladding as a potential model for ATF, highlighting the close collaboration of NRC in the process, particularly_ the assistance NRC provided in test planning. NEI, stressed that ATF should now stand for "Advanced Technology Fuel" rather than "Accident Tolerant Fuel" because we do not have "crash-resistance airplanes". NEI does not believe that ATF will help current financially stressed plants due to the time frame for batch reloads, but it may help plants that would otherwise become stressed in the future. Regarding regulatory path forward for Lead Test Rods: • Many industry representatives highlighted concern over using 50.59 for ATF, citing the following two criteria that appear to be challenged by ATF: o (c)(2)(vii) Cannot result in a design basis limit for a fission product barrier as described in the FSAR (as updated) being exceeded or altered; or o (c)(2)(viii) Cannot result in a departure from a method of evaluation described in the FSAR (as updated) used in establishing the design bases or in the safety · .. analyses; • lndust'ry. representatives also expressed confusion about the need for an exemption to 50.46 prib( to loading ATF lead test rods. • Paul's preseQtation directly addressed both of these issues. lllllstated that 50.59 should be acceptable for ATF lead test rods, assuming there is a reasonable case made for what constitutes a "limited number" of rods for each design and assuming the LT NLTR program is otherwise in line with the plant's tech spec allowances for LT NLTR • • programs.-also stated that exemptions should not be needed from 50.46 for any LT AIL TR program within the parameters of each plant's tech spec allowances LT A/TR programs. Industry representatives expressed strong desire to have a documented NRC position on both of the positions expressed in presentation. NEI stated they planned to issue a letter to NRC, formally requesting clarification on these two topics. There was discussion about a workshop meeting to discuss the interpretation of what constitutes a "limited number" for each ATF design on a case-by-case basis. Industry and DOE stakeholders expressed strong support for such a workshop and all agreed the workshop should take place soon. Sensitive - Official Use Only OfHcial Use Only Sel'lsitive ll'llerl'lal ll'lferfflation DPO ATTACHMENT 1 Offieiel l:lse ORI) SeRsiti.e IRterRel lRferffletieR Sensitive - Official Use Only Regarding use of 50.69 and crediting additional coping time. • NEI is developing a roadrnap or template to provide guidance to industry on switching to a risk-based technical basis. Jensen Hughes is hosting a workshop on 50.69 soon (date not stated, will take place in Chicago). The perspective is switching irom active to assive safet systems, i.e. from the pumps to the fuel. • Jensen Hughes, gave an overview presentation of 50.69 and the mec anics o risk-informed evaluation. As she started, she polled the audience, asking those with experience or familiarity with 50.69 to raise their hands. No on in the room raised a hand. • -presentation provided the following estimates: o 70% of safety related SSC may be eligible for categorization as RISC-3 (safetyrelated SSCs that perform low safety significant functions) o Without ATF, 50.69 is predicted to save utilities on the order of $3M/year o With ATF, the estimate is on the order of $1 OO's of Millions. • - a l s o suggested deterministic "exchanges" or benefits that could be available from ATF without conversion to 50.69 o For LBLOCA limited plants, ATF may offer enough additional PCT margin to justify a power uprate. o For ATF designs that reduce hydrogen generation, a plant could get rid of ignitors o Plants may be able to show reduced accident containment pressure to help address issues of concrete tendon degradation that arise in subsequent license renewal. • Many questioned how additional "coping time" would translate to PRA metric of GDF and LEAF. Most agreed that the connection wasn't easy to make, but offered a possible explanation. She offered the possibility that longer coping time could provide time for more operating actions that could be credited in a PRA, but cautioned that human reliability analysis starts to play a major role in those credits and that non-typical operator actions were very difficult to credit in a positive way. • Many participants expressed caution over placing all ATF eggs in the "coping time" basket - explaining that each individual plant will have different needs and options that provide benefit for their particular economic situation. Some plants will look for opportunities to do power uprates, possibly relying solely on deterministic exchanges, while others in more cost-competitive markets can only survive with dramatic operating cost reductions only available from 50.69 conversion. • It appears that only U.S. utilities plan to credit improved ATF performance to achieve economic benefit. In other countries, improved ATF performance is sought to build public confidence in nuclear power following Fukishima accident. On the OECD-NEA A TF Expert Group • Working group formed with a mandate to develop an ATF metrics report, some type of international consensus document. • WG exists under the NEA, Nuclear Science Committee. WG membership was dominated by R&D orgs and fuel vendors. One TSO, no regulatory bodies • Report is scheduled for publication in May or June of this year • Report will address fabrication and fuel cycle topics Sensitive - Official L1se Only Offieiel l:lse ORI) Seflsifr,e IRterRal IR~EIFF~ation DPO ATIACHMENT 1 OFRcial U!e Oiil) OeP'leiti,e IF1t8FRB1 IRfeFJJlatiQR Accident Tolerant Fuel (ATF) Lead Test Assemblies (LTAs) October 25, 2017 Purpose: Establish a clear licensing approach on ATF LTAs. Outcome: ( 1) DORL verbally responds to Hatch by 10/31 with the NRC view on the licensing path for their proposed LTA campaign, (2) consider RIS and/or inspection guidance to clarify NRC's regulatory position, (3) if needed, pursue more durable regulatory guidance (e.g., updating/endorsing NEI 96-07). Path Forward: 1. No exemption to 50.46 is required for non-zirconium fuel designs. a. Staff has discretion to make a determination, and there is no technical basis to applying 50.46 to non-zirconium clad, there is no reason to impose this regulatory burden on the licensee. Furthermore, because the proposed LTAs would be placed in limited quantities and in non-limiting locations, the safety envelope of 50.46 should still apply. 2. No license amendment request (LAR) is needed to change technical specification (TS) 4.2.1 (when improved technical specification (ITS) language is used) a. Consistent with previous letter to Hatch and position in Generic Letter 90-02, Supplement 1. b. Hatch TS is the same as the ITS, so no LAR is needed c. For other licensees, deviations from the ITS language need to be evaluated on a case-by-case basis to determine if LAR required 3. 10 CFR 50.59 is a potentially viable path for implementing the Hatch LTA program, based on the information that has been informally shared with NRC to date. a. Staff considers LTA loading campaigns to be a test. b. NEI guidance 96-07 (endorsed in NRC Regulatory Guide 1.187) requires that demonstration assemblies be screened into a 50.59 analysis. c. 10 CFR 50.59(c)(4) is not satisfied by the technical specifications (i.e.,. the licensees must do a full analysis of the 8 screening criteria, possibly excepting criteria vii) d NEI 96-07 may allow for licensees to not evaluate the criteria in 1O CFR 50.59(c)(2)(vii): "Consistent with the discussion of 10 CFR 50.59 applicability in Section 4.1, any design basis limit for a fission product barrier that is controlled by another, more specific regulation or technical specification would not require evaluation under criterion (c)(2)vii." e. It is possible for the licensee to answer 'no' to the criteria in 10 CFR 50.59(c)(2)(viii). For example, licensees could evaluate and conclude that the design, number, and placement of LTAs in the core will not invalidate approved methods for the core design and safety analysis. f. Ultimately, the success outcomes of a 50.59 analysis is the licensee's responsibility. DPO ATTACHMENT 2 Offieial Use GRly SeF1eiti,e lfllteffllel lflfermetie" Ofllsial blse GRly .. ~eRsitiare 1Rt8~Ral IRfeFR'lalioR Question 1: Under Path Forward Item 2.a. and 2.b., the staff states no LAR is needed and this is consistent with the "position in Generic Letter 90-02, Supplement 1." GL 90-02 provides guidance for a line-item change that "provides flexibility in the repair of fuel assemblies containing damaged and leaking fuel rods by reconstituting the assemblies." The generic letter goes on to describe how the model TS in the original GL were in error since a broad range of fuel configurations were identified that extend well beyond the scope of applications that have been justified by the tests and analyses for the fuel design and the design methods currently approved by the NRC. Could the staff please highlight what portion of Generic Letter 90-02, Supplement 1, they are referring to? Is there further documentation to support the staff's current position that the model Technical Specification sentence added as a result of Supplement 1 to GL 90-02, was intended, not only to address the acceptability of lead test assemblies that are beyond the scope of methods currently approved by the NRC, but also, a change to the cladding and pellet material type specified in the Design Features of the Technical Specification that have not been approved by the NRC? If so, could the staff please provide the history/documentation on the latter issue? Answer: When the staff stated that no license amendment request (LAR) would be needed, and not needing an amendment is consistent with the position in Generic Letter 90-02, Supplement 1, the Staff was referring to the position beginning on page 3, "GUIDANCE FOR FUEL RECONSTITUTION". There is no specific discussion of Lead Test Assemblies, (LTAs) in Generic Letter (GL) 90-02, Supplement 1, although LTAs were part of the Design Features section of Standard Technical Specifications (STS) upon which the staff was soliciting public comments. The draft Design Features section in GL 90-02, Supplement 1 states: The reactor shall contain [ ] fuel assemblies. Each assembly shall consist of a matrix of zircaloy clad fuel rods with an initial composition of natural or slightly enriched uranium dioxide as fuel material[, and water rods]. Limited substitutions of zirconium alloy or stainless steel filler rods for fuel rods, in accordance with NRG-approved applications of fuel rod configurations, may be used. Fuel assemblies shall be limited to those fuel designs that have been analyzed with applicable NRC staff-approved codes and methods, and shown by tests or analyses to comply with all fuel safety design bases. A limited number of lead test assemblies that have not completed representative testing may be placed in non-limiting core regions (emphasis added) Notably, GL 90-02, Supplement 1 also stated, "Licensees may propose this modification as a line-item improvement to accommodate limited fuel reconstitution based on NRG-approved generic topical reports or may develop similar plant-specific specifications, if needed." The staff DPO ATT AC HM ENT 3 Ofilieial l::lse GRly . i11R&ith«11 lr::it11n::ial lr::ifnrrnalion Offiei11I Use 8111~ Se1,sitiue ll'lter1111l ll'lforrn11tion has approved a number of licensee changes to Technical Specifications (TS) that are consistent with the model language in GL 90-02, Supplement 1. For example, the staff safety evaluation (SE) approving the Fuel Assemblies TS changes for Vogtte states: As noted in the GL 90-02, the NRG staff finds that these controls are also acceptable for the use of a limited number of lead test assemblies in non-limiting core regions. If the results of 10 CFR 50. 59 analyses, performed in accordance with NRG-approved methodology, are determined by the licensee to meet all existing design bases and safety criteria, and not to give rise to an unreviewed safety question or to require a change to the TSs, then the proposed core loading and its subsequent operation with lead test assemblies .. .do not require prior NRC staff approval. (ADAMS Accession No. ML012330020) Additional SEs have similar language and treated the LTA TS addition differently from the rest of the fuel assembly reconstitution related changes (Seabrook ADAMS Accession No. ML011830210 and Wolf Creek ADAMS Accession No. ML022040452) In 2014, the NRC implicitly acknowledged LTAs could be evaluated under 50.59 in a letter granting an exemption to reinsert Ziron-clad LTAs in 2014 (ADAMS Accession No. ML 133548755). The letter stated: In addition to SNC's request for an exemption from certain parts of 10 CFR 50.46 and Appendix K, Section IV of SNC's letter dated April 23, 2013, addressed how other regulatory requirements related to the use of the L TAs are to be met by SNC. Specifically, the letter indicated that loading and irradiation of the L TAs will also be evaluated by SNC as a change to the plant as required by 10 CFR 50.59, "Changes, tests and experiments." This approach is consistent with the HNP Technical Specifications which allow a limited number of L TAs, provided they are placed within non-limiting locations. As such, the NRC staff review in the enclosure addresses the exemption request pursuant to 10 CFR 50. 12. and does not address core physics, core thermal hydraulics, fuel thermal-mechanical design, or Updated Final Safety Analysis Report (USFAR) safety analyses aspects of the L TAs nor their placement in non-limiting core locations. Question 2: Could the staff please further explain the position that NEl-96-07, endorsed by R.G. 1.187, "may allow for licensees to not evaluate the criteria in 10 CFR 50.59(c)(2)(vii)"? As the one pager highlights NEl-96-07 does state that: Consistent with the discussion of 10 CFR 50.59 applicability in Section 4.1, any design basis limit for a fission product barrier that is controlled by another, more specific regulation or Technical Specification would not require evaluation under Criterion (c)(2)(vii). Does Hatch have a Technical Specification or UFSAR section with specific design basis limits for Lead Test Assemblies that specifies DNBR/MCPR; fuel temperature; linear heat rate; fuel enthalpy; clad strain; or fuel burnup? If not, how will the guidance be followed for the placement of lead test assemblies that do not meet the current design basis fuel limits in the UFSAR? DPO ATIACHMENT 3 Offiei11I Use 01'11) Seflsiti,e lflteFflBI lflfeFFl'latieA Offieiet'Q'.seUAly" ·seFu;itive IRt8FRal IRfeF~ali9R Answer: Regulatory Guide 1.187 endorses NEI 96-07, Revision 1, "Guidelines for 10 CFR 50.59 Implementation"; therefore, when providing its previous communication on this topic, the staff did not challenge the original basis behind the statement in NEl-96-07 regarding the need for licensees to evaluate 50.59(c)(2)(vii) where there is a change process in the technical specifications. However, the staff intends to further explore this when developing the follow-on guidance. The staff does not anticipate that Hatch has a TS or UFSAR section with specific design basis limits for LTAs that specify the criteria provided in the question. Hatch has the ultimate responsibility for complying with its license and with 50.59, including correctly following 50.59(c)(4). Hatch has not completed its 50.59. If Hatch determines that loading and using LTAs constitute changes to the facility or procedures, but an applicable regulation establishes more specific criteria for accomplishing such changes, then, as described in 1O CFR 50.59(c)(4), the licensee would no longer apply 50.59 and would not evaluate any of the criteria in 10 CFR 50.59(c)(2), including 50.59(c)(2)(vii). However, if Hatch determines that usage of LT As constitutes "tests or experiments not described in the final safety analysis report (as updated)" as defined in 10 CFR 50.59(a)(6), then 10 CFR 50.59(c)(4) would not apply because 10 CFR 50.59(c)(4) only addresses "changes to the facility or procedures." Hatch would then need to follow 50.59 and evaluate whether or not the criteria of 50.59(c)(2) are met Under TS 4.2.1, Hatch is required to evaluate the irradiation of LTAs and confirm that the number of LTAs is limited and that they will be placed in non-limiting core locations. The A TF LTAs will maintain operating margin to the limits specified for the co-resident fuel as described in the core operating limits report (COLR) and the UFSAR, which would be shown by the engineering calculations justifying the LTAs placement in non-limiting locations. Hence, during an AOO or postulated accident, the ATF LT A fuel rod's performance is expected to be superior to the co-resident fuel with regard to margin to design basis limits. The performance of safetyrelated SSCs, core operating limits, and TS LCO/LSSS setpoints will continue to be based on the more limiting co-resident fuel. Therefore, there are no changes necessary to either a design basis limit for a fission product barrier as described in the UFSAR (criterion vii) or method of evaluation described in the UFSAR used in establishing the design bases or in the safety analyses (criterion viii). NRC staff expects licensees to document the bases of the limited quantity and placement of A TF LTAs within Appendix B quality engineering calculations. These calculations and the licensee's 50.59 determination for the LTA program will be available for NRC staff inspection. Per a communication with Hatch on October 31, it is expected that they will do a 50.59 review in accordance with the regulations and any applicable guidance. Implicit in this is the expectation that this evaluation will confirm that the existing analyses of record (UFSAR, COLR, TSs) will not be invalidated by irradiation of the LTAs and that all existing design basis fuel limits will not be challenged (addressing aspects of Criterion (c)(2)(vii)). If, however, this evaluation shows that irradiation of the LTAs will invalidate any of the analyses of record, the NRC staff would DPO A TIACHMENT 3 Offieiel Uee ·QRi!tr~·SaA&ith~ Internal lntormalinn Official Use OiilJ Se11sitive IF.terAel IAferFRaiien expect Hatch to request an LAR because the requirement to place the LTAs in non-limiting core regions could not be met. Question 3: What were the results of the working group that was discussed by the NRC staff at the Commission Briefing? Are the four Regional Offices, responsible for inspecting the 50.59 analyses that will be performed in order to support loading of accident tolerant fuel lead test assemblies, in agreement with the NRC staff positions highlighted in the one pager and specifically that licensees may not have to evaluate the criteria in 10 CFR 50.59(c)(2)(vii) as part of the 50.59 analysis? Answer: The regulatory history on the use of license amendments, exemptions, and 50.59 with LTAs is varied, and this was expressed by the staff to management. Subject matter expert representatives were assembled by NRR Division Directors to review and provide a resolution path forward. The subject matter expert representatives could not reach consensus due to differing staff positions. A decision was made to document the pros/cons of the differing opinions and conduct a final structured meeting where the representatives' positions could be presented to the responsible Directors to support decision-making. The NRR management decision documented in the 1-pager was made by the Division Directors for DSS, DORL, and DIRS, as informed by the outcome of the representatives' combined efforts. The Directors acknowledged the regulatory history and considered the different outcomes that could have been pursued for Hatch. Regional office representation was included in the meeting when NRR management relayed the decision (including the decision regarding criteria 1O CFR 50.59(c)(2)(vii)), but the decision was not provided to the regions for concurrence. As we develop the generic staff position on LTAs and clarify the public record, the regions will be included in the development of follow-on guidance (a generic communication vehicle will be considered as well as supplemental inspection guidance). The Regional offices will continue to be able to inspect 50.59 analysis, including those that will be performed in order to support loading of accident tolerant fuel lead test assemblies, as part of the baseline inspection program. DPO ATTACHMENT 3 - Offieial l:Jse 9Rly iseRsiti'·e IRl&~Ral IRfor:iiiatioR Official l!Jse OiilJ NRC FORM699 6e11siti,e IAteni:tel lAferffletieA U.S. NUCLEAR REGULATORY COMMISSION DATE OF SIGNATURE '.03-?013) I 110 I /20 I 7 CONVERSATION RECORD DATE OF CONTACT NAME OF PERSON(S) CONTACTED OR IN CONTACT WITH YOU Sec List Belo,1 I Oi."l I /2017 E-MAIL ADDRESS TELEPHONE NUMBER TYPE OF CONVERSATION DE-MAIL 0 TELEPHONE LJ D ORGANIZATION DOCKET NUMBER(S) NRUNRR/DORI. and Southern Nuclear Operating Compan) (SNC) 50-J2 I LICENSE NUMBER(S) CONTROL NUMBER(S) SUBJECT l 'se of accidrnt tolcrant fuel (J\ 11·) lead test assemblies (I. I J\s) at !latch llnit l in Spring 2018 SUMMARY The li1llowing Staff from NRR/DORL and SNC participated in the suhjcct cpnfcrencc call: NRC DORL DORI Mike Markley. Branch Chief. LPL2- I/DOl{l. DORI S:\C )irector. Regulatory /\ ffair, Director. Nuclear Fuel Manager. I. iccnsing Sr. Liccn,ing Engineer ·r. Licensing Lngim:cr BWR l'ucls l\1anager Continue on Page 2 ACTION REQUIRED (IF ANY) None Continue on Page 3 NAME OF PERSON DOCUMENTING CONVERSATION SIGNATURE D NRG FORM 699 (03-2013) Offieiel blee ORiy SeosiUve Joternal·JobcrnatigR INCOMING OUTGOING Oflieittl Use ORiy Eieflsiti·,e IRlerRal IRferFAatien NRC FORM699 U.S. NUCLEAR REGULATORY COMMISSION 103-2013) CONVERSATION RECORD (continued) SUMMARY (Continued from page 1) This was a follo\\-up call to a phone call held on Scptcmhcr 29. 2017. In the September 29 call. SNC prcr, idcd some details and their position regarding their plans to load A IF LTAs. Those details arc summarized in the Background section below. In the October JI.2017. call. 'Oil\ eyed the NRC position that SNl"s approach is appropriate for the lt,ading o!"th..: LTAs at I latch !!nit I in the Spring of 2018. In the NRC staffs ,it:\\. bas..:d tm our understanding ofSNC's plans. no ..::,;emption from NRC regulation, ,1ould be needed for th..:s<.: LTAs: NRC's interpr..:tation of I latch TS 4.2.1 allows for the use of LTAs. as specilicd. ,o no license amendment is required to revise that TS; and SNC's intent to conduct a lull evaluation of the proposed aetivit~ in accordance \1 ith IO (TR 50.59 is appropriate. It was mutual I) acknowledged th.Jt the IO ( TR 50.59 evaluation of LTAs could n:sult in the licensee's determination that a license amendment is rn1uircd. notwithstanding the NRC\ position on TS 4.2.1. SNC expressed appreciation for the call and the NRC position. and asked if the position ,,ill be documented. rcspondcd that the NRC recognizes thc need and is considering thc best m<.:ans to document the staff position. possibl) in a Regulatory Issues Summary. but that is still to be determined. The call \1as then adjourned. B:1ckground On Frida). September 29.2017. DORI. and OIRS staff held a tel econ with Southern Nuclear to gain a better understanding of the li..:enscc·s plans for l Subject: Fwd: [External_Sender] Regulatory Framework for Byron ATF LTA program -------- Original Message -------From: Date: Fri, January 19, 2018 2:28 PM -0500 To: Subject: [Extemal_Senderl Regulatory Framework for Byron A TF LT A program We have been refining the 10 CFR 50.59 evaluation for the Byron LTA program. We have a final draft evaluation that appropriately answers all the evaluation questions "No and concludes that an LAR is not required. DPO ATI ACHMENT 5 1 OJfieial bl&e ORiy SeR&itia.•e IRterRal IR1er~atieR 11 Offieiel ~so @1 I; Se121it' lntcrnal letacroafior Recognizing the extended discussion on this topic fourth quarter last year, we would like to meet with NRR staff to review and get your feedback on our evaluation. It might also be appropriate to invite Region III staff to participate in the meeting. Thursday February 8 or Wednesday or Thursday February 14/15 could be possibilities. Please let us know a few potential days that could work for you and we can work to a successful schedule. Let me know if you have any questions. Exelon Nuclear Engineering lhis Email message and any attachment may contain information that is proprietary, legally privileged, confidential andfor subject to copyright belonging to Exelon Corporation or its affiliates ("Exelon"). This Email is intended solely for the use of the person(s) to which it is addressed. If you are not an intended recipient or the employee or agent responsible for delivery of this Email to the intended recipient(s), you are hereby notified that any dissemination. distribution or copying of this Email is strictly prohibited. If you have received this message in error, please immediately notify the sender and permanently delete this Email and any copies. Exelon policies expressly prohibit employees from making defamatory or offensive statements and infringing any copyright or any other legal right by Email communication. Exelon will not accept any liability in respect of such communications. -FXCIP DPO ATIACHMENT 5 2 Offieial Use Only Sensitive Internal 11,forn,ation eFHcial Use 011ly Sel'lsiti,e IRterRel IR#erFRatieR Markley, Michael From: Sent: To: Subject: Attachments: Wednesday, February 07, 2018 7:11 AM - M a r k l e y , Michael FW: Material for LTAs - BRIEFING THE CHAIRMAN Record of October 31 2017 Call with SNC Regarding Hatch ATF Fuel.pdf; June 29_NEI Letter Mll 7150A443.pdf FYI. From: Sent: Tuesday, February 06, 2018 5:30 PM To: Cc: Subject: FW: Material for LTAs - BRIEFING THE CHAIRMAN I don·t see any reason why we cant make the October 31. 2017 record of call publ1cally available please have one of the Ms put into ADAMS as publically available - From: Sent: Monday, February 05, 2018 2:36 PM Subject: RE: Material for LTAs - BRIEFING THE CHAIRMAN Hatch document is attached. For context, this is a PM-level summary of the phone conversation with Hatch Though it gives a summary of the Hatch situation, it isn't what I would call Chairman-ready. June 29 memo also attached As for the EDO two pager ... ! asked to update it to take our reference to the COMSECY. From: Sent: Monday, February 05, 2018 1:58 PM To: Subject: RE: Material for LTAs - BRIEFING THE CHAIRMAN 1·m ok with June letter and EDO 2 pager without table of comments as -suggests What is the Hatch one pager .. can someone show? - - should you and • and me call - From: Sent: Monday, February 05, 2018 1:17 PM To: 1 Official Use 011ly Oe11sitioc l11tc111al lnfo1111alion PO Attachment 6 Subject: RE: Material for LTAs - BRIEFING THE CHAIRMAN Please wait till chime in Thanks From: Sent: Monday, February 05, 2018 1:16 PM To: Cc: Subject: RE: Material for LTAs - BRIEFING THE CHAIRMAN I would suggest we give her: 2 3 the June letter the Hatch one pager the one pager V,/e prepared tor the EDO but v11thout the last table From: Sent: Monday, February 05, 2018 12:27 PM To: Cc: Subject: FW: Material for LTAs - BRIEFING THE CHAIRMAN Dear . Please see the request below from the Chairman's office Please let me know what we intend to handout or other background information we would like to give to the Chairman. Perhaps the June 17, 2017 letter? RIC presentation? The detailed handout? Your one-pager? Etc.? From: Sent: Monday, February OS, 2018 12:19 PM To: DPO Attachment 6 Subject: Material for LTAs - BRIEFING THE CHAIRMAN 2 9ffieiel Use ORiy SeReitiYe IRterRal IRferR'latieR Offieiel l:Jse Ol"IIJ Serztsiti,e ll"lterrztel ll"lfePffletiefl Good afternoon I would like to ask if there is any read ahead material for Chairman tomorrow at 10 00 am? meeting Thank. you Offo.:c of Chairman Phone: 301-415-1750 . U.S. NRC DPO Attachment 6 3 Offieial Yee ORiy SeR&ilive IRl8FRB1 IR~8FFRati8R· Ott.eiel Use ORIJ Sefllsiti, e IP'ltePfllt!I lr,fefmati1A LIC-109. "Acceptance Review Procedures" Example 2 Criteria PM and Technical Staff, Use of Approved Guidance Situation A licensee requests the approval for a change to a fuel type which requires changes to the safety limits. The application references a topical report (TR) methodology that is currently under review for generic u~e. for determining the safety limits. Acceptable for Review? No, because the licensee has cited an unapproved TR in support of the proposed change (Use of Approved Guidance). Although the licensee may be able to cite the TR after it receives generic approval, the NRC staff should not accept the ALA for review until the generic review is completed. May be Acceptable for Review If: If the TR was not currently under NRC review for generic use and the licensee provided a full justification (versus a simple reference to the TR) for why use of the method described in the unapproved TR results in a conservative safety limit, the application may be acceptable for review. Also, if the licensee has an urgent need for the change to the safety limit and the generic review of the TR would not be complete in time for the licensee's need, using the TR as a plant-specific justification may be acceptable. Again, the licensee would need to provide a full justification and it should be recognized that the approval is specific only to this singular application of the TR. LIC-101. "License Amendment Review Procedures' 4.2 Use of Precedent and References to Topical Reports There are a number of considerations and cautions regarding the use of a precedent SE by NRA staff. These include, but are not limited to, the following: • Use precedents, as applicable, to achieve efficiency and consistency. • Ensure that the precedent is appropriate for use with the intended amendment. • Ensure that the precedent meets current expectations for format, findings, internal NRA guidance for the item, NRA guidance to industry, and technical content. • Ensure that previous plant-specific information is replaced with information relevant to the current plant. • Obtain TB concurrence, unless formal guidance has been issued that provides an alternative concurrence process. Ensure that the precedent being used corresponds to the issued SE and not to intermediate versions or drafts. Use of the final SE (as issued) for the precedent will ensure that the staff is consistent and will improve efficiency by incorporating changes made by NRA and OGC as part of the concurrence process for the precedent SE. Significant feedback received during the concurrence process from other NRA organizations, NRA managers, or OGC, should be provided to the primary authors of the SE for consideration and incorporation into ongoing and future work products. DPO Attachment 7 Ottieial Use ORiy SeA&iti'ra IRtarral lotormation 6flieiel l:lse ORiy &8R&ili·~ IRltirRal IRforrnalioo Decisions to not apply specific precedents, especially precedents cited by a licensee, should be clearly explained in the SE (to avoid the appearance of being arbitrary and/or inconsistent). The staff should assess any change in a prior staff position to ensure that the safety or regulatory issue is consistent with the NRC principles of good regulation (e.g., efficiency, clarity, and reliability). The staff should also ensure that changes in staff position are assessed to determine whether the change could constitute a plant-specific or generic backfit (see NRR Office Instructions LIC-202, "Procedures for Managing Plant-Specific Backfits and 50.54(f) Information Requests," LIC-400, "Procedures for Controlling the Development of New and Revised Generic Requirements for Power Reactor Licensees," and NRC Management Directive 8.4, "Management of Facility-specific Backfitting and Information Collection"). Referencing topical reports in license amendment applications and associated NRC SEs improves the efficiency of the licensing process by allowing the staff to coordinate the review of a methodology or proposal that will be used by multiple licensees. Guidance for the staff's review of a topical report is provided in LIC-500, "Processing Requests for Reviews of Topical Reports." As with the use of precedent amendments, the staff should ensure that a reference in a license amendment application to a staff accepted Approved Version of the topical report is appropriate for the subject change and its supporting analysis. The reviewer should ensure that supporting analyses that refer to a staff accepted Approved Version of the topical report are pertormed consistent with the limitations and conditions identified within the topical report and the staff's SE for the topical report. Some SEs for topical reports may include specific guidance for licensees referencing the topical report in a plant-specific application. If a licensee in its application or the NRC staff during its review identifies a deviation from the process or limitations associated with a topical report, the staff should address the deviation in its SE for the plant-specific license amendment application. To address deviations from approved topical reports, the SE for the subject amendment should identify the limitation or condition, evaluate the proposed deviation against appropriate regulatory criteria, and specifically explain why the deviation is acceptable (or not acceptable). LIC-500. "'Topical Report Process·· 4.1.3 TRs and Related Plant-Specific Licensing Actions Licensees should wait until the applicant receives a final letter from the PLPB PM confirming the outcome of the "-A" (approval version of the TR, Section 4.2.12) verification, following the applicant's submission of the approved "-A" version with the staff's final SE, before referencing the TR in an LAR. Unless specifically agreed upon by the NRC staff, separate, concurrent "pilot plant" applications are inconsistent with the guidance in LIC-109, and are generally not acceptable. If plant-specific information is needed in support of a TR review, it should be submitted as part of the TR, either in the body of the TR or as an appendix to the TR. DPO Attachment 7 Offiei·e1 b:lse ORiy SeAeiti,e IF1ter=Rel lRfeff'fl8tieA Oftieiel blee ORiy S8RG:ti••8 IRt&FRal IRfeF~atieR Document 2: Memo Establishing DPO Panel Offieiel Use QRly geR&iti'•& IR&&FRal IRk)r=~atioR Offlclal Use 01ily Se11siti,e l11terr21el lnfern:atieA · March 5, 2018 MEMORANDUM TO: George A. Wilson, Panel Chairperson Office of Nuclear Reactor Regulation William D. Reckley, Panel Member Office of New Reactors Patrick A. Raynaud, Panel Member Office of Nuclear Regulatory Research THRU: Anne T. Boland, Director Office of Enforcement FROM: Gladys Figueroa-Toledo Differing Views Program Manager Office of Enforcement SUBJECT: AD HOC REVIEW PANEL - DIFFERING PROFESSIONAL OPINION INVOLVING NRC RESPONSE TO NEI CONCERNING THE REGULATORY PATH FOR ACCIDENT TOLERANT FUEL LEAD TEST ASSEMBLIES (DP0-2018-002) IRA/ In accordance with Management Directive (MD) 10.159, "The NRC Differing Professional Opinion Program;" and in my capacity as the Differing Professional Opinion (DPO) Program Manager; and in coordination with Anne Boland, Director, Office of Enforcement, Brian Holian, Director, Office of Nuclear Reactor Regulation; and the DPO submitter; you are being appointed as members of a DPO Ad Hoc Review Panel (DPO Panel) to review a DPO submitted by an U.S. Nuclear Regulatory Commission (NRC) employee. The DPO (Enclosure 1) involves NRC's response to NEI concerning the regulatory path for Accident Tolerant Fuel (ATF) Lead Test Assemblies (LTAs). The DPO has been forwarded to Mr. Holian for consideration and issuance of a DPO Decision. CONTACTS: Gladys Figueroa-Toledo, OE (301) 287-9497 Offieial lelse ORI~ SeReitive IRterRal IRfeffflatier, 9ff.ieial l:Jee QRly i&Rt:itirn lntasnal letorrnafico G. Wilson, et al. 2 The DPO Panel has a critical role in the success of the DPO Program. Your responsibilities for conducting the independent review and documenting your conclusions in a report are addressed in the handbook for MD 10.159 in Section 11.F and Section 11.G, respectively. The DPO Web site also includes helpful information, including interactive flow charts, frequently asked questions, and closed DPO cases, including previous DPO Panel reports. We will also be sending you additional information that should help you implement the DPO process. Because this process is not routine, we will be meeting and communicating with all parties during the process to ensure that everyone understands the process, goals, and responsibilities. Disposition of this DPO should be considered an important and time sensitive activity. The timeliness goal for issuing a DPO Decision is 120 calendar days from the day the DPO is accepted for review. In this case, the DPO was accepted for review on February 20, 2018. The timeliness goal for issuing this DPO Decision is June 20, 2018. Process Milestones and Timeliness Goals for this DPO are included as Enclosure 2. The timeframes for completing process milestones are identified strictly as goals-a way of working towards reaching the DPO timeliness goal of 120 calendar days. The timeliness goal identified for your DPO task is 75 calendar days from the date of this memorandum (May 19, 2018). Although timeliness is an important DPO Program objective, the DPO Program also sets out to ensure that issues receive a thorough and independent review. The overall timeliness goal should be based on the significance and complexity of the issues and the priority of other agency work. Therefore, if you determine that your activity will result in the need for an extension beyond the overall 120-day timeliness goal, please send an e-mail to Mr. Holian with a copy to DPOPM.Resource@nrc.gov and include the reason for the extension request and a proposed completion date for your work and a proposed timeliness goal for issuance of a DPO Decision. Mr. Holian is responsible for subsequently forwarding the request for a new DPO timeliness goal to the EDO for approval. An important aspect of our organizational culture includes maintaining an environment that encourages, supports, and respects differing views. As such, you should exercise discretion and treat this matter appropriately. Documents should be distributed on an as-needed basis. In an effort to preserve privacy, minimize the effect on the work unit, and keep the focus on the issues, you should simply refer to the employees as the DPO submitters. Avoid conversations that could be perceived as "hallway talk" on the issue and refrain from behaviors that could be perceived as retaliatory or chilling to the DPO submitters or that could potentially create a chilled environment for others. It is appropriate for employees to discuss the details of the DPO with their co-workers as part of the evaluation; however, as with other predecisional processes, employees should not discuss details of the DPO outside the agency. If you have observed inappropriate behaviors, heard allegations of retaliation or harassment, or receive outside inquiries or requests for information, please notify me or John Harrison. On an administrative note, please ensure that all CPO-related activities are charged to Activity Code ZG0007. efti1i1l I I&& ORiy eeRsiti·1e IR!eFRal IRfermatioo Offieiel l:Jse ORI~ SeRsiMve IRtBFR81 IRfeFFR8ti8R G. Wilson, et al. 3 We appreciate your willingness to serve and your dedication to completing a thorough and objective review of this DPO. Successful resolution of the issues is important for NRC and its stakeholders. If you have any questions or concerns, please feel free to contact me or John Harrison. We look forward to receiving your independent review results and recommendations. Enclosures: 1. DP0-2018-002 Submittal 2. Process Milestones and Timeliness Goals cc: B. Holian, NRR R. Lorson, NRR M. Evans, NRR M. Markley, NRR K. Brock, NRR G. Suber, NRR J. Giitter, NRR J. Segala, NRO R. Iyengar, RES A. Boland, OE G. Figueroa-Toledo, OE J. Harrison, OE Official Use 81¥19 Se11silioe h1te111al h1fo1111atiGM Offieiel Use 01'11) Sel'lsiti.e ll'ltefllal lAfeFmatigR Document 3: DPO Panel Report Offieial Wee QRly ieR&i&i>ra IRt&rRal IPforrna+;oo Oflisial bis& ORiy ~&RGitiue loternal lrtomatian G. Wilson, et al. SUBJECT: 4 AD HOC REVIEW PANEL - DIFFERING PROFESSIONAL OPINION INVOLVING NRC RESPONSE TO NEI CONCERNING THE REGULATORY PATH FOR ACCIDENT TOLERANT FUEL LEAD TEST ASSEMBLIES (DP02018-002) DATE: March 5, 2018 ADAMS Package: ML 18064A237 MEMO: ML 18064A243 Enclosure 1 - ML 180518265 Enclosure 2 - ML 18064A248 OE: DPO/PM OE: D OFFICE ABoland NAME GFioueroa DATE 3/5/2018 3/5/2018 OFFICIAL RECORD COPY OE-011 '·•, Offisial , Isa Ori~ 59rei+ive Internal lntocmafioo~ Qffieial bis& ORiy i&R&ith<& IRt&s::Ral IRto~rnaUon UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555-0001 June 18, 2018 MEMORANDUM TO: Brian Holian, Acting Director Office of Nuclear Reactor Regulation FROM: George Wilson, DPO Panel Chair IRA/ William Reckley, DPO Panel Member IRA/ Patrick Raynaud, DPO Panel Member IRA/ SUBJECT: DIFFERING PROFESSIONAL OPINION PANEL REPORT ON THE NRC RESPONSE TO NEI CONCERNING THE REGULATORY PATH FOR LEAD TEST ASSEMBLIES (DP0-2018-002) In a memorandum dated March 5, 2018, we were appointed as members of a Differing Professional Opinion (DPO) Ad Hoc Review Panel (DPO Panel) to review the NRC response to NEI concerning the regulatory path for the insertion of lead test assemblies in US nuclear reactors. The DPO Panel reviewed the DPO in accordance with Management Directive 10.159, "The NRC Differing Professional Opinions Program." The DPO Panel's report is enclosed for your consideration. The DPO Panel was unanimous in concluding that: (1) the NRC's policy on the licensing strategy to insert LTAs in reactor cores needs to be decided and clearly communicated to all stakeholders; (2) the NRC should clarify the interpretation of TS 4.2.1 that constitutes the official NRC interpretation of TS 4.2.1, and should clarify what constitutes 'limited numbers' of fuel rods as well as what is meant by 'nonlimiting locations'; and (3) the technical experts and licensing experts should always communicate with each other and follow a consistent established process prior to announcing licensing strategies publicly or communicating these strategies to industry parties. During the review, the DPO Panel was aware of the new Agency letter to NEI for the clarification of regulatory paths for lead test assemblies. The DPO Panel did review the draft letter. Please do not hesitate to contact us if you have any questions regarding the enclosed report. Enclosure: DPO Panel Report cc: A. Boland, Director, OE G. Figueroa Toledo, DPOPM M. Markley, NRR Offieial lclse ORIV i!leRsilive IRlerRal IRMiFFRali,m Official Use 0, ily B. Holian SUBJECT: ADAMS Accession OFFICE NAME DATE Se, ,sitiue IAlemal IAfermatieR -2- DIFFERING PROFESSIONAL OPINION PANEL REPORT ON THE NRC RESPONSE TO NEI CONCERNING THE REGULATORY PATH FOR LEAD TEST ASSEMBLIES (DP0-2018-002) No.: ML 18169A215 *via e-mail DPO/PC DPO/PM* DPO/PM G. Wilson W. Reckley* P. Ravnaud 06/18/18 06/18/18 06/18/18 OFFICIAL RECORD COPY Offi~ial I l&a ORiy SaR&itiva IPfernal IPtoanafioo Oflieiel l::Jse ORiy SeR&itive IPlernal lofocrnaliao Differing Professional Opinion (DPO) on the NRC Response to NEI Concerning the Regulatory Path for Lead Test Assemblies (DP0-2018-0()2) DPO Panel Report Original signed by GAW George A. Wilson, Panel Chair Via e-mail William D. Reckley, Panel Member Patrick A.C. Raynaud, Panel Member 06/18/2018 Official Use 0 ..1) Sefleitive IRt8FRal IRfGJ'AUiti&R Offieial Uee ORiy SeReiti·,e IRISFflel IRfel"fRetieR -2- 1. Introduction DP0-2018-002, submitted on 02/08/2018, is related to the NRC response to NEI concerning the regulatory path for the insertion of lead test assemblies in US nuclear reactors. The DPO Panel was established via memorandum on 03/05/2018, and asked to review the issues described in the DPO, and to assess and dispose each issue. The Panel met with the Submitter on 3/27/2018 and orally established a statement of concerns with the Submitter. Following this meeting, the Panel created a Summary of Issues (SOI) and asked, in writing, for a review of the SOI by the Submitter. The Submitter revised the SOI proposed by the Panel and sent the Panel a final SOI on 04/13/2018. Both the initial Panel proposed SOI and the final Submitter-approved SOI are provided in Section 0. In addition, a detailed identification of the DPO issues by the Panel is provided in Section 0. The Panel collected and reviewed many documents related to the DPO. In addition, a number of documents were provided by the DPO Submitter as well as by interviewed staff members. A list of the documents collected and reviewed is provided in Section6.3. In addition to document collections and review, the Panel conducted a number of interviews, as listed in Section 6.1. orncial Use 011ly - Se11silioe h,ternel lr,feFmatieR -3- 2. Summary of Issues (SOI) The DPO Panel first created a summary of issue based on their interpretation of the DPO submittal. This first SOI consisted of two high-level issues and 7 more detailed issues. The DPO Submitter was given a chance to review these issues and was in disagreement with the Panel about the way the issues were stated. As a result, the final list of issues is that provided on 04/13/2018 by the Submitter. Both the initial Panel SOI and the final Submitter SOI are shown for completeness. The Panel evaluation below focuses on the SOI as provided by the Submitter on 04/13/2018. 2.1. As-Interpreted by the DPO Panel based on Initial DPO Submittal 2.1.1. High-Level Issues 1. As currently written, do the regulations allow the process followed to insert the LTA's at the Hatch Nuclear Power Plant? 2. Were all current NRC processes, precedents, and policies followed? 2.1.2. Detailed Issues 1. Staff's and management's improper use of the 50.59 process due to effects on the technical specifications 2. Staff's and management's improper use of the Technical Specifications: all parts apply for the proper evaluation of the overall Technical Specification. 3. Staff's and management's improper use of NRC approved methods: An approved method is one for which the NRC has performed an independent safety evaluation, possibly including independent confirmatory analyses as a technical basis for the approval process. 4. Staff's and management's improper use of exemptions to 10 CFR 50 (fuel-related parts or other parts) a. 50.36 - Technical specifications i. TS 4.2.1 - Fuel Assemblies ii. TS 5.6.5 - Core Operating Limits Reports b. 50.46 - Acceptance criteria for emergency core cooling systems for light-water nuclear power reactors c. 50.59 - Changes, tests and experiments i. Guidelines for 10 CFR 50.59 implementation," NEI 96-07, Revision 1. NEI 96-07, d. 50.68 - Criticality accident requirements e. 50.91 - Notice for public comment; State consultation f. 50.92 - Issuance of amendment g. Appendix A, Criterion 35-En:iergency core cooling h. Appendix K, "ECCS Evaluation Models 5. Staff's and management's improper use of how precedents are used to set NRC policy. 6. NRC's management lack of overall communication and lack of inclusion of all parties that needed to be involved: NRR/DORL and NRR/DIRS were not originally included. 7. Staff's and management's failing to get OGCs interpretation of the 10 CFR's prior to going outside the agency with a staff position that set new policy. Offieiel Use 0111) Gensitiwe lrtterRal lRferFAetieR Offieial !Jee GRI; '9n: :silive Ii 1le11 ,al Ii 1fo1,, 1alio11 -4- 2.2. As-Provided to the DPO Panel by DPO Submitter on 4/13/2018 1. NRC management and staff appears to have lost its objectivity and exhibited severe mismanagement in development of a licensing strategy for accident tolerant fuel (ATF). Although this mismanagement is most evident in the development of a "no licensing strategy" for lead test assemblies (LTAs), the loss of objectivity is evident at all levels of the NRC. 2. Without consult of licensing experts in NRR/DORL, 10 CFR 50.59 experts in NRR/DIRS or NRC Regional Offices, staff in DSS developed incorrect regulatory position(s) in its presentation on ATF at the 2017 Regulatory Information Conference, June 29, 2017 letter-response to NEI, and carried this forward into its October 25, 2017 position paper to the Commission. 3. DSS letter-response dated June 29, 2017, is incorrect in the following areas: (1) It provides an incorrect reading of the technical specifications (TS) for LTAs, as the only relaxation is representative testing, (2) All TS must be met, as written, in plain language, (3) All provisions of TS 4.2.1 have to be met (Zircaloy or ZIRLO cladding, U02 fuel, and NRC approved codes and methods), and (4) the regulatory history is more consistent than asserted concerning amendments and exemptions, and limiting\number and locations does not obviate the need to meet all TS requirements. ' \ 4. NRR position paper dated October 25, 2017, is incorrect in stating the foll<;>wing: (1) No exemption is needed for non-zirconium fuel designs, (2) No license amendf:nent request (LAR) is needed to under TS 4.2.1 (when Improved TS language is used), a'nd (3) 1O CFR 50.59 is a potentially viable path for implementing the Hatch LTA progratn. 5. It is unacceptable to have a regulatory gap and no emergency core cooling system (ECCS) acceptance criteria if it can be argued that 10 CFR 50.46 does not apply ~ a ._ means to meet GDC 35 or associated plant-specific design criteria. 6. NRR responses to Commissioner Baran dated November 14, 2017, are inaccurate and misleading with respect to: (1) "cherry picking" licensing action excerpts that the biased position on GL 90-02 (Supplement 1), TS, and 10 CFR 50.59, (2) the extent to which safety culture was maintained in the working group, and (3) The outcome of the process was contrived to support the letter dated June 29, 2017. Licensing and 10 CFR 50.59 subject matter experts were not respected and an open-collaborative work environment was not maintained. 7. The NRC has no docketed basis to cor"i'ch,1_de the following issues will not affect A TF fuel integrity and, thus, safety of the commerciat operating reactors: ( 1) thermal conductivity degradation, fission gap behavior, and swelling-of non-U02 fuels (e.g., U3Si2) at lightwater reactor temperatures, (2) mechanical behavior of smaller pellet designs, (3) possible nonlinear behavior (creep, hardening, burst behavior) of FeCrAI cladding, (4) variations in cladding thickness, and (5) effects of coatings on cladding stress, strain, and displacement. The NRC is remiss in its safety mission by dismissing these issues for LTAs based largely on "a limited number of lead test assemblies that have not completed representative testing may be placed in non-limiting core regions." Regardless of numbers or locations, plant-specific licensing actions would be needed for O#isi&I ' I&& ORiy i&R&itiH& IRtiFRal IRfeFFRatien O#isial I l&'i ORiy S'iR&itilre lr=iterral lotorroatioo -5LTAs with enrichment >5% U-235, cladding materials other than Zircaloy or ZIRLO, and fuels other than U02. 8. Licensee are expected to meet all the provisions of the TS, and not choose which ones apply in favorable circumstance. The June 29 letter raises a policy issue in its partitioning of the LTA provision of TS 4.2.1, has generic implications on the entire body of TS requirements, and does not follow the Part 9900 guidance for developing TS interpretations. 9. The June 29 letter also presents an interpretation of the regulations in 10 CFR 50.46 without a regulatory approval by the Office of the General Counsel, as prescribed by the regulations in 10 CFR 1.23(c) and 10 CFR 50.3. 10. The suggested use of "unapproved analytical codes and methods" for LTAs is in direct contradiction to NRC/NRR licensing procedures for acceptance review (LIC-109), amendments (LIC-101 ), and topical reports (LIC-500) and TS 4.2.1. G#feial IJ&a ORiy Saosifiue Internal lnfncmafion Gffieiel lclee GAly eeAeitive 1At8FABI IA~8FA'IBli8A -6- 3. Evaluation 3.1. Final Overall Panel Assessment A key issue in assessing the disagreement between staff members on introducing lead test assemblies (LTA) for accident tolerant fuels (ATF) into operating reactors relates to the interpretation of Technical Specification 4.2.1, "Fuel Assemblies." The standard language for the requirements in this specification is: The reactor shall contain [# of fuel assemblies] fuel assemblies. Each assembly shall consist of a matrix of [Zircaloy or ZIRLO] fuel rods with an initial composition of natural or slightly enriched uranium dioxide (U02) as fuel material. Limited substitutions of zirconium alloy or stainless steel filler rods for fuel rods, in accordance with approved applications of fuel rod configurations, may be used. Fuel assemblies shall be limited to those fuel designs that have been analyzed with applicable NRC staff approved codes and methods and shown by tests or analyses to comply with all fuel safety design bases. A limited number of lead test assemblies that have not completed representative testing may be placed in nonlimiting core regions. The Panel discussed possible interpretations of the above language with the staff involved with the issue and with the specific handling of the lead test assemblies at the Edwin I. Hatch Nuclear Plant. Two basic interpretations exist and largely define the disagreements between the staff. The first interpretation, reflected in a presentation at the 2017 Regulatory Information Conference, is that the last sentence is more or less independent from the preceding sentences and provides licensees with considerable flexibility in inserting lead test assemblies with different properties than those previously approved by the NRC. The second interpretation is that the last sentence provides relief only from the testing requirements of the preceding sentence and that lead test assemblies are either required to comply with the cladding and fuel material descriptions of the first sentence and the analyses requirements of the third sentence, or a license amendment is needed to introduce the test assemblies. The ambiguity in the language of the Technical Specification can explain the different interpretations and the preferences for different regulatory approaches for introducing lead test assemblies to support potential improvements in fuel designs. However, the NRC staff routinely faces ambiguous wording within documents defining regulatory requirements and providing guidance on compliance with regulations. In most cases a prevailing interpretation or practice can be identified. The identification of a prevailing view or interpretation can then help decide whether the recent statements and preliminary positions involve a clarification of or a change to a generally established staff position. While the regulatory decisions involving accident tolerant fuel would in either case be dependent on showing that the lead test assemblies and subsequent core loadings pose no undue risk to public health and safety, the two interpretations do lead to different approaches in terms of the regulatory processes for amending licenses and controlling changes to facilities as described in updated final safety analysis reports. The importance of identifying changes to staff positions, resisting re-characterizations of positions, and following appropriate processes to impose new requirements has recently been emphasized through communications and training related to the NRC's backfit regulations. While the current issue on introducing lead test assemblies for accident tolerant fuel do not Offiei11I Use 9Aly eeAeitive IAtarRal IRwi:r:r:iation Offieial 1:Jee ORiy S&Rsiti,ca IRtar=Ral lofocrnatioc - 7, involve a backfit, the discussions in recent guidance such as COMSECY-16-0020, Revision of Guidance Concerning Consideration of Cost and Applicability of Compliance Exception to Backfit Rule," provide insights on interpreting (equirements, emphasizing the importance of the standards and practices from the time the requirements were put in place. As in many NRC examples of possible changes involving many licensees over many years, there are inconsistencies in how lead test assemblies have been treated in terms of license amendments, exemptions, and reporting. For the sake of this assessment, the Panel divides lead test assemblies into the following categories: • Category 1: LTA with a change in mechanical design features that are not specifically described in TS 4.2.1 (e.g., nozzles, spacer grids). Mechanical design changes are sometimes able to take advantage of being analyzed with NRC staff approved codes and methods with some adjustments, and can usually be shown to comply with all safety design bases via testing and/or analyses. For LTA in this category, the licensing approval path varied, but in many cases, these LTA were inserted without a license amendment, by using the 50.59 process, or another previously approved licensee change process, such as GESTAR for example. • Category 2: LTA with change in fuel material (from uranium dioxide), which is specifically mentioned in TS 4.2.1. Changes in fuel material have been less common. Examples found related to the introduction of mixed oxide fuel did include license amendments and exemptions for the LTAs. • Category 3: LTA with change in cladding material (from Zircaloy or ZIRLO), which are specifically mentioned in TS 4.2.1. For this category of LTA, several licensing paths have been used by licensees, using one or more of the following licensing processes: (a) exemption request to be able to use 50.46 criteria for cladding materials that were not Zircaloy or ZIRLO (these materials usually were other similar dilute zirconium alloys; (b) license amendment request to be able to insert the LTA with new cladding material; (c) 50.59 process by which the licensee performs an assessment of the change associated with the LTA, and if the licensee's determination allows it, the LTA can be inserted without submitting a request to the NRC. The Panel focused on the third category, since it is the most relevant to the current issues for lead test assemblies associated with accident tolerant fuel designs. The Panel reviewed records related to the development of the current language in Supplement 1 to Generic Letter 90-02, "Alternative Requirements for Fuel Assemblies in Design Features Section of Technical Specifications," dated July 31, 1992. There was not a definitive discussion of lead test assemblies, because much of the history related to the generic letter and its supplement concerned reconstitution of assemblies. However, the introduction of lead test assemblies with M4 and M5 alloys into operating reactors in the time frame of the Generic Letter were handled by licensees and the NRC staff using both a license amendment to reflect new cladding material in the design features of Technical Specifications and exemptions from cladding-related regulations such as 10 CFR 50.46, to allow for the use of 50.46 despite the cladding material not being Zircaloy or ZIRLO. For example, Technical Specification changes and exemptions were requested and approved for Calvert Cliffs (Unit 1 Amendment 211, February 21, 1996) and North Anna (Amendments 204 and 185, May 9, 1997) shortly after or concurrent with those plants incorporating the standard language from Generic Letter 90-02. In a related licensing Official Use 0111) SeRsitive IRtii:Ral lntocroatioo Official Use O"IJ Se1 ISitii.C ti ,ter"at 11 afoq,!_~tion -8action in the same period for Three Mile Island, Unit 1, the staff issued a change to Technical Specification and a finding that an exemption from 10 CFR 50.46 requested by the licensee was not required (Amendment 194, July 24, 1995), only to subsequently issue the exemption in order to remain consistent with established staff positions (October 12, 1995). The Panel concludes that the initial interpretation was that lead test assemblies introducing new cladding material were to be handled with both license amendments and exemptions from 10 CFR 50.46. Over the years, variations and inconsistencies in approach have been accepted by the NRC staff. A majority of cases have, however continued to include license amendments for lead test assemblies using different cladding material and even more have involved an exemption for 10 CFR 50.46. Importantly, although many cases used both an exemption request and a license amendment (especially in earlier years), some cases used one without the other. In particular, there are Safety Evaluations by the NRC staff that approve an exemption from 50.46 (to be able to use 50.46 for cladding that is not Zircaloy or ZIRLO), and that specifically state that the 50.59 process is to be used in conjunction with the approved exemption request. It is difficult to determine whether more licensees followed the 50.59 path once the precedent was set. Having concluded that the original regulatory approach to the introduction of lead test assemblies for accident tolerant fuel using new cladding materials would be through applications for and issuance of license amendments and exemptions, the Panel acknowledges that an alternative approach could result from the different interpretations of technical specifications requirements and NRC regulations. The Panel is aware that this alternative approach is currently being followed through the planned issuance of a Federal Register Notice soliciting public feedback on a letter to NEI with the proposed interpretations. The Panel recommends a reassessment of current plans to ensure that what now seems aimed at addressing a difference in interpretation between different staff factions is better defined to meet agency strategic goals and the longer term development and deployment of improved fuel designs. The apparent cause of the current problem and progression of different staff opinions into what the Panel would characterize as actual antagonism between staff members is a lack of communication between those that were or should have been involved in the development of guidance related to the introduction of lead test assemblies for accident tolerant fuels. Coordination and communications between organizations is necessary no matter whether the staff is revising regulatory positions or issuing clarifications of established positions. The price of failing to coordinate activities related to accident tolerant fuel is clearly evident now in that initial efforts to provide a clear and predictable path forward for fuel vendors, licensees, and the NRC staff have had the opposite outcome. The path taken may have also missed opportunities that would have supported the development and eventual deployment of accident tolerant fuels. Examples identified during the interviews included the development and issuance of orders or working with the industry on a technical specification traveler to change the Technical Specifications. Such an approach would involve an affirmative action by the NRC instead of offering interpretations of multiple regulatory requirements to possibly justify some licensees inserting a small number of test rods in non-limiting core locations without NRC approval. NRC development and issuance of an affirmative action such as an order or insertion of a specific administrative section in TS for accident tolerant fuels could have ensured consistency between licensees and vendors, defined performance measures and reporting requirements, and addressed program evolution beyond small numbers of test rods in non-limiting core locations. Offieie1"1::13e 0"1:,:._ .R~~!i~ive ... __ _IRteFRel IRt8FfflatieA Offieial Use ORiy SeAsili'Je IAterRal IAfermatieR -93.2. One-by-One Disposition of Concerns from SOI 3.2.1. Issue #1 Submitter statement: NRG management and staff appears to have lost its objectivity and exhibited severe mismanagement in development of a licensing strategy for accident tolerant fuel (A TF). Although this mismanagement is most evident in the development of a "no licensing strategy" for lead test assemblies (L TAs), the loss of objectivity is evident at all levels of the NRG. Panel disposition: the Panel notes that concerns related to the performance of individual staff or managers are beyond the scope of this report. The Panel has offered the observation that the handling of this issue involved a breakdown of coordination and communications between NRC organizations. The Panel interviewed NRC management and staff whose interpretations of the TS 4.2.1 would allow for LTA insertion without exemptions or license amendments and did not find any evidence of loss of objectivity. The Panel did find that DSS should have communicated with DORL and DIRS when the LTA licensing path was developed internally and prior to communicating it to NEI. The Panel did not find that the so-called 'no licensing strategy' consisted of mismanagement, but it did rely on a different interpretation of TS 4.2.1. The alternative interpretation of TS 4.2.1 was presented to OGC by DSS, and OGC stated that the TS 4.2.1 could be interpreted in both ways, and that the DSS interpretation was thus one possible correct interpretation. 3. 2. 2. Issue #2 Submitter statement: Without consult of licensing experts in NRRIDORL, 10 CFR 50.59 experts in NRRIDIRS or NRG Regional Offices, staff in DSS developed incorrect regulatory position(s) in its presentation on A TF at the 2017 Regulatory lnfonnation Conference, June 29, 2017 letterresponse to NE/, and carried this forward into its October 25, 2017 position paper to the Commission. Panel disposition: the Panel notes that concerns related to the performance of individual staff or managers are beyond the scope of this report. The Panel has offered the observation that the handling of this issue involved a breakdown of coordination and communications between NRC organizations. The Panel was assured that OGC weighed in on the issue of the interpretation of TS 4.2.1, which is at the core of the licensing strategy proposed by DSS, and stated that the TS 4.2.1 could be interpreted in several different ways that would lead to different licensing strategies, neither of which was technically wrong. That said, the Panel did determine that the most commonly used LTA insertion licensing strategy was to submit an exemption request to use 50.46, followed either by the 50.59 process or by a license amendment request. It is possible that a path using only 50.59 may have been used in the past, but such records are not readily accessible and this could thus not be verified. Offi~ial 111,11 ORiy SeRsili'Je Internal lnfeFfflatien Official ~sc Sf1ty-·-eeT1sntvtfft ,t&11~e.l lAferrfietiefl - 10 3.2.3. Issue #3 Submitter statement: DSS Jetter-response dated June 29, 2017, is incorrect in the following areas: (1) It provides an incorrect reading of the technical specifications (TS) for L TAs, as the only relaxation is representative testing, (2) All TS must be met, as written, in plain language, (3) All provisions of TS 4.2.1 have to be met (Zircaloy or ZIRLO cladding, U02 fuel, and NRG approved codes and methods), and (4) the regulatory history is more consistent than asserted concerning amendments and exemptions, and limiting number and locations does not obviate the need to meet all TS requirements. Panel disposition: the Panel finds that the initial interpretation of TS 4.2.1 (from the time of its introduction and first use) was that lead test assemblies introducing new cladding material were to be handled with both license amendments and exemptions from 10 CFR 50.46. However, over the years, variations and inconsistencies in approach have been accepted by the NRC staff. With that said, the issuance of the draft letter should have been better coordinated and should have acknowledged the regulatory history and fact that many previous introductions of new cladding materials had included license amendments and exemptions. The Panel notes that the current solicitation of public comment on a follow-on draft letter to clarify the staffs interpretation of TS 4.2.1 does acknowledge the regulatory history. The Panel confirmed with OGC that the TS 4.2.1 may be interpreted in several ways that are all legally and technically correct. Specifically, the DSS interpretation of TS 4.2.1 is that the final sentence of the TS ("A limited number of lead test assemblies that have not completed representative testing may be placed in nonlimiting core regions.") takes exception to the other sentences in the TS. OGC has confirmed that this in one possible correct interpretation of TS 4.2.1. Clearly, the Submitter of the DPO has a different interpretation of the TS 4.2.1, which is also legally and technically correct, and this interpretation is that the entire TS 4.2.1 must be met, and that the final sentence does not allow for an exception to the first four sentences of TS 4.2.1. As a result of the two possible correct legal interpretations of TS 4.2.1, the Panel believes that Issue #3 items (1) and (3) are not true for the DSS interpretation of TS 4.2.1. The Panel agrees with Issue #3 item (2). The Panel agrees with the first part of Issue #3 item (4) regarding the regulatory history. However, for the case where the DSS interpretation of TS 4.2.1 is used, the Panel disagrees with the second part of Issue #3 item (4) regarding limiting number and location. 3.2.4. Issue #4 Submitter statement: NRR position paper dated October 25, 2017, is incorrect in stating the following: (1) No exemption is needed for non-zirconium fuel designs, (2) No license amendment request (LAR) is needed to under TS 4.2.1 (when Improved TS language is used), and (3) 10 CFR 50.59 is a potentially viable path for implementing the Hatch LTA program. Panel disposition: regarding Issue #4 item (1), the Panel has established that in all previous cases where documentation could be found, an exemption to be able to use the criteria in 10 CFR 50.46 for a cladding material other than Zircaloy or ZIRLO was requested. As in the previous discussion of TS 4.2.1, the Panel observes that the issuance of the draft letter and related material such as the October 2017 position paper should have been better coordinated and should have acknowledged the regulatory history and fact that many previous introductions of new cladding materials had included license amendments and exemptions. The Panel notes Qflieiel Wee 0"1)' Se"eitive l11ter11el l11fe~ali11R - 11 that the current solicitation of public comment on a follow-on draft letter to clarify the staffs interpretation of TS 4.2.1 and exemptions from 10 CFR 50.46 does a better job at acknowledging the regulatory history. Regarding Issue #4 items (2) and (3), the Panel has established that LARs are not always needed, depending on which interpretation of TS 4.2.1 is adopted. Furthermore, there are Safety Evaluations by the NRC staff that approve an exemption from 50.46 (to be able to use 50.46 for cladding that is not Zircaloy or ZIRLO), and that specifically state that the 50.59 process is to be used in conjunction with the approved exemption request. As a result, the Panel disagrees with Issue #4 items (2) and (3) as stated by the Submitter. In regard to the interpretations of the requirements and related guidance for 10 CFR 50.59, the Panel finds that ambiguities likewise exist that can support multiple interpretations. However, the regulatory history is not as clear-cut as implied in the draft letter or October NRR position paper. It should be noted that the development of NEI 97-03 for guidance for 10 CFR 50.59 evaluations includes observations of when such evaluations would not be needed because other regulatory requirements are governing. Given the interpretation of TS 4.2.1 at the time NEI 97-03 was being prepared was that any change in fuel cladding material involved a TS change, it is not surprising that such a change was not specifically addressed. The importance placed on fission product barriers and associated design bases is reflected in the guidance which states that NRC approval is required any time a proposed change would "exceed or alter" a design basis limit for a fission product barrier. The Statements of Consideration for 10 CFR 50.59 likewise states "The rule language that provides that a design basis limit may not be altered provides important and needed assurance. Changes that involve alteration of the design basis limit for a fission product barrier involve such a fundamental alteration of the facility design that a change, even in the conservative direction, should receive prior NRC review." The Panel again finds that the June letter and October position paper should have better acknowledged the regulatory history. 3.2.5. Issue #5 Submitter statement: It is unacceptable to have a regulatory gap and no emergency core cooling system (ECCS) acceptance criteria if it can be argued that 10 CFR 50.46 does not apply as a means to meet GOG 35 or associated plant-specific design criteria. Panel disposition: the Panel agrees with the Submitter on Issue #5: the licensees demonstrated compliance with GDC 35, which requires an emergency core cooling system, in part, through meeting the requirements of 1O CFR 50.46. An affirmative regulatory action such as issuance of an amendment or order could have better addressed the safety and regulatory case for the lead test assemblies than has the reinterpretation or clarification of a variety of interrelated regulations. 3.2.6. Issue #6 Submitter statement: NRR responses to Commissioner Baran dated November 14, 2017, are inaccurate and misleading with respect to: (1) "cherry picking" licensing action excerpts that the biased position on GL 90-02 (Supplement 1), TS, and 10 CFR 50.59, (2) the extent to which safety culture was maintained in the working group, and (3) The outcome of the process was O#ieial Wss O"IY SeReiti,·e IRleP"el IRfermalien Official Use ORI~ SeP'!siti·,e IAteFABI IAfeFFABtien - 12 - contrived to support the letter dated June 29, 2017. Licensing and 1O GFR 50.59 subject matter experts were not respected and an open-collaborative work environment was not maintained. Panel disposition: the Panel notes that concerns related to the performance of individual staff or managers are beyond the scope of this report. The Panel has offered the observation that the handling of this issue involved a breakdown of coordination and communications between NRC organizations. The Panel found that the staff response to Commissioner Saran's inquiry did indeed only provide examples to support the staff position that supports the use of 50.59 for LTA insertion. The Panel found that although one-sided, the response was adequate based on the question. However, a more complete response showing that past licensing actions did not always follow the same path for LTAs, and that a wide range of licensing paths had been used in the past, would have been preferable in the spirit of openness and transparency. Regarding the extent to which safety culture was maintained in the LTA working group, the Panel found that strong differing views were expressed within the working group meetings, and that conflictual discussions may have taken place, but the panel did not find concrete evidence that the NRG safety culture was lost during the LTA working group meetings. The Panel found that no one was forcefully removed from the working group, but that the Submitter of the DPO decide to remove themselves from the LTA working group because they felt they were not being heard. Regarding the assertion that the outcome of the process was manipulated to support the position outlined in the June 29, 2017 letter, the Panel found that the LTA working group could not arrive to a consensus on the question of LTA licensing. This would indicate that the process, although contentious, was not biased in any particular direction, because if it were biased or manipulated, the outcome would have been clear. In addition, because the working group could not reach consensus, the Panel learned that a LTA Steering Committee, composed of upper managers, was created to try and resolve the disagreements and make a recommendation. The final decision of the LTA Steering Committee was not in alignment with the opinion of the DPO Submitter, but the Panel did not find that the process was artificially biased or manipulated. 3.2. 7. Issue #7 Submitter statement: The NRG has no docketed basis to conclude the following issues will not affect A TF fuel integrity and, thus, safety of the commercial operating reactors: (1) thermal conductivity degradation, fission gap behavior, and swelling of non-U02 fuels (e.g., U3Si2) at light-water reactor temperatures, (2) mechanical behavior of smaller pellet designs, (3) possible nonlinear behavior (creep, hardening, burst behavior) of FeGrAI cladding, (4) variations in cladding thickness, and (5) effects of coatings on cladding stress, strain, and displacement. The NRG is remiss in its safety mission by dismissing these issues for LTAs based largely on "a limited number of lead test assemblies that have not completed representative testing may be placed in non-limiting core regions." Regardless of numbers or locations, plant-specific licensing actions would be needed for LTAs with enrichment >5% U-235, cladding materials other than Zircaloy or ZIRLO, and fuels other than U02. Offieial blse ORiy SeAsiti.e IAterF1al lP'lferm11tio11 -Oflieiel Yee ORiy eeAsitive IAterRal li:itocroaliao - 13 Panel disposition: the lack of a safety case being presented to the NRC staff is a logical outcome from the interpretation that NRC approval is not required for lead test assemblies involving a limited number of rods in non-limiting locations. In previous cases in which NRC approval was sought, such information was provided as part of the applications for license amendments and exemptions. In lieu of the safety case being included in applications to the NRC, the approach reflected in the June letter relies on other regulations and change control mechanisms to ensure safety and determine the appropriate level of NRC involvement. This may be another area in which an affirmative regulatory action instead of interpretations to justify no regulatory action would have supported more consistency and predictability for licensees and vendors. Such actions could, for example, have acknowledged the limited radiological consequences from failures of lead test assemblies and used acceptance criteria other than the traditional design basis limits established for fuel cladding. The Panel has established that there is indeed no docketed basis for 3 of the 5 technical points raised by the submitter, but this is expected because there are no licensing actions that involve the following items from the Submitter's Issue #7: (1) non-U02 pellets, (3) FeCrAI cladding, (5) coated cladding. Regarding technical items (2) and (4), the Panel has found that the Submitter is incorrect: there have been many fuel designs approved in the past with varying pellet sizes and cladding thicknesses, all approved by NRC for batch reload, and for which approved docketed safety analyses exist. In fact, such analyses exist for every major fuel design currently or historically used in batch quantities in the US fleet of reactors. For the second portion of Issue #7, relating the assertion that NRC is remiss in its safety mission, the Panel found that there is no technical basis that shows that the safety of the people and the environment would be compromised by the insertion of LTA. The third portion of Issue #7, relating to the assertion that licensing actions would be needed for certain types of LTAs, is based on one of the two possible correct legal interpretations of TS 4.2.1. The Submitter's assertion is based on the original interpretation of TS 4.2.1, and is correct if that interpretation is chosen. However, the other legally correct interpretation of TS 4.2.1 would allow for a limited number of lead test assemblies that have not completed representative testing to be placed in non-limiting core regions, thus licensing actions would not be required in such cases. As a result, the Panel has determined that that Submitter's assertion about licensing actions for certain types of LTAs is not valid for all possible interpretations of TS 4.2.1, and in particular, is not valid for the interpretation favored by NRR/DSS as well as NRC upper management. 3.2.8. Issue #8 Submitter statement: Licensee are expected to meet all the provisions of the TS, and not choose which ones apply in favorable circumstance. The June 29 letter raises a policy issue in its partitioning of the L TA provision of TS 4.2.1, has generic implications on the entire body of TS requirements, and does not follow the Part 9900 guidance for developing TS interpretations. Panel disposition: the Panel finds that the initial interpretation of TS 4.2.1 (from the time of its introduction and first use) was that lead test assemblies introducing new cladding material were to be handled with both license amendments and exemptions from 10 CFR 50.46. However, over the years, variations and inconsistencies in approach have been accepted by the NRC staff. With that said, the issuance of the draft letter should have been better coordinated and erficial Use 011ly Geflsiti,e lflteFAel lAfeFR=tatisn Offieiel l::lse 01'11~ Sel'lsiti.e ll'lteFl'lel ll'lfeFFl'letiel'I - 14 - should have acknowledged the regulatory history and fact that many previous introductions of new cladding materials had included license amendments and exemptions. The Panel notes that the current solicitation of public comment on a follow-on draft letter to clarify the staffs interpretation of TS 4.2.1 does acknowledge the regulatory history. The Panel determined that the Submitter is correct in that licensees are "expected to meet all the provisions of the TS, and not choose which ones apply in favorable circumstance", and also correct that partitioning TS 4.2.1 when interpreting it is a policy decision. However, per OGC's assessment, there are at least two legally correct interpretations of TS 4.2.1. OGC concurred on the June 29 letter and thus did not legally object to the interpretation of TS 4.2.1 that allows for a limited number of LTA to be inserted in non-limiting core locations without a License Amendment Request. Furthermore, the Panel has found that NRC is in the process of clarifying its policy, and that the TS 4.2.1 interpretation that allows for a limited number of LTA to be inserted in non-limiting core locations without a License Amendment Request will be the official NRC policy. 3.2.9. Issue #9 Submitter statement: The June 29 letter also presents an interpretation of the regulations in 1O CFR 50.46 without a regulatory approval by the Office of the General Counsel, as prescribed by the regulations in 10 CFR 1.23(c) and 10 CFR 50.3. Panel disposition: the Panel found this assertion to be incorrect, since the June 29 memo was concurred upon by Mary Spencer of OGC. In addition, the Panel finds that the initial interpretation of TS 4.2.1 (from the time of its introduction and first use) was that lead test assemblies introducing new cladding material were to be handled with both license amendments and exemptions from 10 CFR 50.46. However, over the years, variations and inconsistencies in approach have been accepted by the NRC staff. With that said, the issuance of the draft letter should have been better coordinated and should have acknowledged the regulatory history and fact that many previous introductions of new cladding materials had included license amendments and exemptions. The Panel notes that the current solicitation of public comment on a follow-on draft letter to clarify the staffs interpretation of TS 4.2.1 does acknowledge the regulatory history. 3.2.10. Issue #10 Submitter statement: The suggested use of "unapproved analytical codes and methods" for LTAs is in direct contradiction to NRCINRR licensing procedures for acceptance review (LIC109), amendments (LIC-101), and topical reports (LIC-500) and TS 4.2.1. To some degree, the use of unapproved analytical codes and methods is a logical part of using operating reactors as a testing platform for new cladding materials and the interpretation that NRC approval is not required for lead test assemblies involving a limited number of rods in nonlimiting locations. This may be another area in which an affirmative regulatory action instead of interpretations to justify no regulatory action would have supported more consistency and predictability for licensees and vendors. Such actions could, for example, have acknowledged the limited radiological consequences from failures of lead test assemblies and used acceptance criteria other than the traditional design basis limits established for fuel cladding. Offieial Yee ORiy SeR8iti,e IRtefR81 IAtefM8ti8A Offieiel Use O"I) Sensiti.e IRl8FR81 IRf8FFRali8R - 15 - The Panel finds that if the interpretation chosen by DSS is used, whereby the TS 4.2.1 permits limited number of LTA in nonlimiting locations without an LAR, then the use of unapproved analytical codes and methods is allowed, and does not contradict NRR procedures. However, if the original interpretation of TS 4.2.1 is used, then the use of unapproved analytical codes and methods would be in contradiction with NRR procedures. Given that both interpretations are legally correct, the Panel finds that the suggested us of unapproved analytical codes and methods by DSS is permitted under their interpretation of TS 4.2.1. Offieiel Use Onl) Sensiti.e IRteFRel lRfeFFRetien Official Use 011ly Se11sitive lflter"el lRfermetieR - 16 - 4. Conclusion(s) The DPO Panel came to the following overall conclusions: • The two possible interpretations of TS 4.2.1 are at the core of the disagreements that ultimately resulted in this DPO. • The Panel finds that the initial interpretation of TS 4.2.1 (from the time of its introduction and first use) was that lead test assemblies introducing new cladding material were to be handled with both license amendments and exemptions from 10 CFR 50.46. However, over the years, variations and inconsistencies in approach have been accepted by the NRC staff. In the end, the Panel finds that both interpretations of TS 4.2.1 are legally correct, thus the choice of interpretation is a policy issue that must be decided at the highest levels of NRC management. • Past licensing history for LTAs has been varied and inconsistent, the Panel found precedents for LTA insertion via exemption requests followed by 50.59, LARs, or exemptions in combination with LARs, but the Panel could not verify whether the 50.59 was used as a standalone process to insert LTAs into a US power plant core. • The NRC's policy on the use of 50.59 to insert LTAs in reactor cores needs to be decided and clearly communicated. • The Panel found that communications broke down between the parties on the different sides of the LTA licensing issue at the core of this DPO. • The Panel found that DSS staff moved forward with communicating their position on LTA licensing to industry without prior vetting through the licensing divisions DORL and DIRS. DSS should have coordinated with DORL and DIRS in establishing their LTA licensing strategy, and should have done so before communicating their position publicly. • An affirmative regulatory action such as issuance of orders or a new administrative section of TS for LTAs/ATF instead of interpretations to justify no regulatory action would have supported more consistency and predictability for licensees and vendors. Such actions could, for example, have acknowledged the limited radiological consequences from failures of lead test assemblies and used acceptance criteria other than the traditional design basis limits established for fuel cladding. The approach defined in the June letter will likely result in a variety of approaches since it is reliant on individual interpretations by different licensees and vendors. Official l::l!e 0111) eel'leiti,e IRterRel lRfeFFRali9n Official Use OiilJ Seilsilioe lnle1nal lnfo111Jalio" - 17 5. Recommendation(s) The Panel makes the following recommendations: • The NRC's policy on the licensing strategy to insert LTAs in reactor cores needs to be decided and clearly communicated to all stakeholders. • The NRC should clarify the interpretation of TS 4.2.1 that constitutes the official NRG interpretation of TS 4.2.1, and should clarify what constitutes 'limited numbers' of fuel rods as well as what is meant by 'nonlimiting locations'. • The technical experts and licensing experts should always communicate with each other and follow a consistent established process prior to announcing licensing strategies publicly or communicating these strategies to industry parties. Qffieial 6ise QRly SeRSiti\le IRIBFflal IRfeFl'1alieA Official Use 01ily - Se11silive li1te111al h1Fo1111alio11 - 18 - 6. Appendices/Enclosures· As necessary 6.1. List of Interviews Name Boland, Anne Chernoff, Harold Chernoff, Margaret Clifford, Paul Cusumano, Victor Ennis, Rick Hall, Randv Kanatas, Catherine King, Michael Markley, Michael Miller, Chris Spencer, Marv Whitman, Jennifer Organization OE NRR/DIRS/IRGB NRR/DSS/STSB NRR/DSS NRR/DSS/STSB Retired NRR/DORL/LPL2-1 OGC/GCHEA/AGCOR NRR/DIRS NRR/DORL/LPL2-1 NRR/DIRS OGC/GCLR/RMR NRR/DSS/SRXB Date Comoleted 04/18/2018 04/04/2018 04/04/2018 04/12/2018 04/25/2018 03/28/2018 04/18/2018 04/19/2018 04/12/2018 03/27/2018 04/11/2018 04/25/2018 04/04/2018 Official Use O"I~ Se"sitiwe IRteFRel lRferR'letiel'I Official Use 0,,19 - SeReiti"•s IRt&rRal IRfomatior:i - 19 6.2. Identification of DPO Assertions by the Panel 6.2.1. As Stated in DPO Submittal Form 1. The June 29, 2107 letter from NRR/DSS to NEI provides an incorrect reading of the technical specifications (TS} for LTAs, as the only relaxation is for representative testing. 2. The June 29, 2107 letter from NRR/DSS to NEI goes against the premise that all TS must be met, as written, in plain language. 3. The June 29, 2107 letter from NRR/DSS to NEI goes against the premise that all provisions of TS 4.2.1 have to be met (Zircaloy or ZIRLO cladding, U02 fuel, and NRC approved codes and methods). 4. The regulatory history is more consistent than asserted in the June 29, 2107 letter from NRR/DSS to NEI concerning amendments and exemptions (ADAMS Accession No. ML 18036A009). 5. The June 29, 2107 letter from NRR/DSS to NEI incorrectly assumes that limiting number and locations of LTAs obviates the need to meet all TS requirements. 6. In the October 25 NRR management position paper, the statement that no exemption is required for non-zirconium fuel designs is incorrect. 7. In the October 25 NRR management position paper, the statement that no license amendment request (LAR) is needed to change TS 4.2.1 (when improved TS language is used) is incorrect. 8. In the October 25 NRR management position paper, the statement that 10 CFR 50.59 is a potentially viable path for implementing the Hatch LTA program is incorrect. 9. It is unacceptable to have a regulatory gap and no emergency core cooling (ECCS) acceptance criteria if it can be argued that 10 CFR 50.46 does not apply as a means to meet General Design Criteria (GDC) 35, Emergency core cooling. As a result, both cases of Hatch LTAs (chromium coated Zircaloy and FeCrAI alloy) would trigger an amendment under 10 CFR 50.59 (c)(2)(vii) or (c)(2)(viii}, and exemptions are required. 10. In the response from the staff to Commissioner Baran, the staff 'cherry picked' licensing action excerpts that fit their desired position on GL 90-02 (Supplement 1), TS, and 10 CFR 50.59. 11. The response from the staff to Commissioner Baran is misleading with respect to the extent to which an effective safety culture was maintained in the working group for the Hatch. 12. When developing the response from the staff to Commissioner Baran, the process restricted the views of subject matter experts, and the open collaborative work environment purposely not respected. 13. There is an urgent safety issue regarding the loading of LTAs in Edwin I. Hatch Nuclear Power Plant, Units 1 and 2. 14. (Hatch) NRC staff and SNC mutually acknowledged that the 10 CFR 50 .59 evaluation of LTAs could result in the licensee's determination that a license amendment is required, notwithstanding the NRC's position on TS 4.2.1. 15. NRR "got it wrong" in its licensing decision on Hatch, based on the June 29 letter to NEI, and is now placing the entire burden of regulatory acceptability for L TAs on the regional inspection program that lacks the technical expertise and programs to evaluate these first-of-a-kind materials. 16. The NRC has no docketed basis to conclude the following issues will not affect A TF fuel integrity and, thus, safety of the commercial operating reactors: (1) thermal conductivity degradation, fission gap behavior, and swelling of nonU02 fuels (e.g., U3Si2) at light- Offleial Ysa ORiy eSABilive IAIBFRIII IRMIFFRllliQR Offieisl Use 0Aly SeAeitive IRt&rRal IRior"'atioo - 20 water reactor temperatures, (2) mechanical behavior of smaller pellet designs, (3) possible nonlinear behavior (creep, hardening, burst behavior) of FeCrAI cladding , (4) variations in cladding thickness, and (5) effects of coatings on cladding stress, strain, and displacement. 17. Due to inappropriate engagement between NRC and industry management, the NRC has lost its objectivity and is colluding with industry to avoid licensing actions for ATF. 18. The June 29 letter raises a policy issue in its partitioning of the LTA provision of TS 4.2.1, has generic implications on the entire body of TS requirements, and does not follow the Part 9900 guidance for developing TS interpretations. 19. The June 29 letter presents an interpretation of the regulations in 1O CFR 50.46 without a regulatory interpretation by the Office of the General Counsel as prescribed by the regulations in 1O CFR 1.23(c). 20. The suggested use of "unapproved analytical codes and methods" for LTAs is in direct contradiction to NRC/NRR licensing procedures for acceptance review (LIC-109), amendments (LIC-101), and topical reports (LIC-500) and TS 4.2.1. 6.2.2. Reformulated by DPO Panel 1. The decision that the 50.59 process can be used for LTAs violates the intent of several key TS principles: a. All TS must be met b. All the provisions of TS 4.2.1 must be met c. A limited number and locations of LTAs does not obviate the need to meet all TS requirements d. The only exception to the above 3 points is when testing is representative of existing approved fuel designs e. Part 9900 guidance was not followed to develop the TS 4.2.1 interpretation at stake, which has generic implications for all TS. 2. Some staff and management are incorrect in their belief that no license amendment or exemption is needed to introduce new fuel designs as LTAs. Specifically, 50.59 is not an allowed path for the introduction of such LTAs. 3. When looking at past licensing information, the staff in support of 50.59 for the introduction of LTAs for advanced fuel designs has only selected precedents that support their viewpoint. 4. The safety culture, open collaborative work environment, and objectivity of the staff have all been compromised in arriving to the decision that 50.59 is an allowed process for the introduction of LTAs for non-Zirconium cladding or non-U02 fuel systems. 5. There is not proper docketed safety basis for the revolutionary new fuel designs being proposed for introduction as LTAs in this case, resulting in an immediate safety issue. 6. OGC was not consulted when interpreting the language in 50.46 to make a decision regarding the LTAs at Hatch, which violates 10 CFR 1.23(c). 7. Licensing procedures in LIC-109, LIC-101, and LIC-500 were not followed when suggesting that unapproved analytical codes and methods could be used for the Hatch LTAs. Q#isial , IG& ORiy S&R&itiH'i IRtirRal IRfor:r::Aatior:1 J;lfliaiel I lee ORiy Si'ensiti>r lotecoal lctocrnafinn - 21 6.3. List of Documents Gathered and Reviewed by the DPO Panel Ennis, R.B., "Regu~atory Framework Regarding Use of Lead Test Assemblies (LTAs)", February 8, 2018, ML 18036A009. Gavrilas, M., letter to Andrew Mauer (NEI): "Response To Nuclear Energy Institute Letter Concerning The Regulatory Path For Lead Test Assemblies", June 29, 2017. Ippolito, T., letter to Ron Engel (GE): "Lead Test Assembly Licensing", September 23, 1981. Moore, B.R., memo to NRC: "Edwin I. Hatch Nuclear Plant - Unit 1, Information Reports for Lead Test Assemblies", January 10, 2018. Ennis, R.B., and Chernoff, H.K., memo to Margaret Doane (NRC/OGC): "Use Of Open Door Policy- Regulatory Framework Regarding Use Of Lead Test Assemblies", March 22, 2018, ML 18078A010. Holian, B.E., draft letter to Pamela Cowan (NEI): "Clarification Of Regulatory Approaches For Lead Test Assemblies", May 25, 2018, ML 18100A045. Clifford, P., RIC 2017 presentation: "Accident Tolerant Fuel Lead Test Assemblies", March 2223, 2017, ML 17180A017. Brock, K.M., memo to Brian Holian: "Lead Test Assembly Steering Committee Charter", November 22, 2017, ML 17325A157. Office of Nuclear Reactor Regulation: "Charter For The Lead Test Assembly Steering Committee", November 22, 2017, ML 17325A336. Qfli&ial I l&o ORiy ioRrithre Internal lnform2tioc ·Offieiel l::lse ORiy SeR&itive IRl&~Ral IRforrnafiaa -22The following exemptions and license amendments were consulted: License Amendment Date AN0-1 ML021260296 09/07/1993 Braidwood-1,2 ML072620367 10/04/2007 ML041380429 06/16/2004 ML042260223 04/05/2004 ML050600029 03/03/2005 Plant Exemption Request Document Date Byron-1,2 ML031910765 09/22/2003 Byron-1,2 ML061380518 06/30/2006 Byron-2 ML090490645 04/30/2009 Catawba-1,2 ML032060473 08/04/2003 Catawba-1,2 CCNPP-1 ML010510243 11/28/1995 CCNPP-1 ML073200694 12/17/2007 ML073200414 12/20/2007 CCNPP-1,2 ML062260123 11/09/2006 ML062770207 ML063240209 11/16/2006 CCNPP-2 ML010320336 03/06/2001 ML010290302 ML011000289 04/05/2001 CCNPP-2 ML030640137 04/11/2003 ML031040504 ML031050369 04/14/2003 Comanche Peak-1,2 ML020660756 ML020910198 03/26/2002 Cooper ML021360455 04/01/1988 DC Cook-1,2 ML021070500 08/22/1995 ML012250350 ML012270457 08/13/2001 Hatch-2 ML082550707 09/11/2008 Hatch-2 ML 103340437 12/03/2010 Hatch-2 ML 133548755 02/04/2014 Kewaunee McGuire-1 ML013200053 09/27/1991 Official l::lse ORiy SeR&iti•re IRlamal h:ifo•rnafioo Offieial l:Jse QRly i&R&itiua IRt&i:Ral IRfQr+Ratiog - 23Exemption Reques t Document Date MPS-3 ML040070238 02/11/2004 MPS-3 ML17087A308 05/10/2017 North Anna-1,2 ML013510410 05/09/1997 North Anna-1,2 ML032590881 09/23/2003 North Anna-2 ML022420065 09/04/2002 PVNGS-1 ML082730006 10/14/2008 PVNGS-3 ML012830302 10/16/2001 PVNGS-3 ML 101900254 08/26/2010 Plant ....... __ ····- Sequoyah-2 License A men d men t Date ML053200224 12/30/2005 ML013510495 05/09/1997 ML022420065 09/04/2002 ML013320556 04/12/1999 SONGS-2,3 ML090860415 12/17/2009 Surry-1,2 ML 16195A516 07/27/2016 TMl-1 ML003765271 11/14/1991 TMl-1 ML003765677 10/12/1995 ML003765855 07/24/1995 Vogtle-1,2 ML012320043 10/03/1991 ML012330020 04/01/1993 ML020780144 ML020780128 09/08/1997 09/15/1997 M LOS 1290381 05/09/2005 ·- ~·-«-·'· .,-·~ Watts Bar-1 WSES-3 ML042110407 07/28/2004 Offieial t Isa ORiy Sensitive Internal Information Offieie.l Wee 9MI) i&R&iti,ie IRter:oal lotocroatioo Document 4: DPO Decision Offisial Us& ORiy lis&Rsiti11& IRt&i:Ral lotocroatioo Offieiel Wee ORI¥ iaR&iti>ea IAteroal lofocmaUoo .. UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555-0001 July 11, 2018 MEMORANDUM TO: Michael T. Markley, Chief, Plant Licensing Branch 11-1 Division of Operating Reactor Licensing Office of Nuclear Reactor Regulation FROM: IRA/ Brian E. Holian, Acting Director Office of Nuclear Reactor Regulation SUBJECT: DIFFERING PROFESSIONAL OPINION REGARDING NRC RESPONSE TO NEI CONCERNING THE REGULATORY PATH FOR LEAD TEST ASSEMBLIES (DP0-2018-002) On February 8, 2018, in accordance with Management Directive 10.159, "The NRC Differing Professional Opinions Program," you submitted a differing professional opinion (DPO) regarding the NRC response to NEI concerning the regulatory path for the insertion of lead test assemblies (LTA) in US nuclear reactors. Specifically, your DPO raised concerns that the NRC has lost its objectivity and exhibited severe program mismanagement in its development of a licensing strategy for accident tolerant fuel. The purpose of this memorandum is to respond to your DPO. On March 5, 2018, a DPO Ad Hoc Review Panel (the Panel) was established and tasked to meet with you, review your DPO submittal, and issue a DPO report, including conclusions and recommendations to me regarding the disposition of the issues presented in your DPO. On March 27, 2018, you met with the Panel to establish a concise statement of concerns. Following this meeting, the Panel created a Summary of Issues (SOI) and asked, in writing, for a review of the SOI by you. You revised the SOI proposed by the Panel and sent the Panel a final SOI on April 13, 2018. On June 18, 2018, after reviewing the applicable documents, conducting internal interviews of relevant individuals and completing their deliberations, the Panel issued their report to me (Enclosure 1). In order to make a decision with regard to your DPO, I reviewed your DPO submittal, the Panel's report, talked with the Panel Chairman, talked with you, and then re-considered your comments to me. What follows is a summary of the Panel's findings, recommendations, and my decision. CONTACT: Trent L. Wertz, NRR 301-415-1568 0#4eiel Wee ORiy iBR&iti•re IRt&rRal IRfQr~atiQR Offieiel Use ORiy ieR&ithce IRtemal lnfoanation M. Markley - 2- Summary of Issues Based on a review of the DPO package, the following concerns were summarized by the Panel as your concerns: High-Level Issues 1. As currently written, do the regulations allow the process followed to insert the LTAs at the Hatch Nuclear Power Plant? 2. Were all current NRC processes, precedents, and policies followed? Detailed Issues 1. Staff's and management's improper use of the 50.59 process due to effects on the technical specifications; 2. Staff's and management's improper use of the Technical Specifications: all parts apply for the proper evaluation of the overall Technical Specification; 3. Staff's and management's improper use of NRC approved methods: An approved method is one for which the NRC has performed an independent safety evaluation, possibly including independent confirmatory analyses as a technical basis for the approval process; 4. Staff's and management's improper use of exemptions to 10 CFR 50 (fuel-related parts or other parts) a. 50.36 - Technical specifications i. TS 4.2.1 - Fuel Assemblies ii. TS 5.6.5 - Core Operating Limits Reports b. 50.46 - Acceptance criteria for emergency core cooling systems for lightwater nuclear power reactors c. 50.59 - Changes, tests and experiments i. Guidelines for 10 CFR 50.59 implementation," NEI 96-07, Revision 1. NEI 96-07, d. 50.68 - Criticality accident requirements e. 50.91 - Notice for public comment; State consultation f. 50.92 - Issuance of amendment g. Appendix A, Criterion 35-Emergency core cooling h. Appendix K, "ECCS Evaluation Models; 5. Staff's and management's improper use of how precedents are used to set NRC policy; 6. NRC's management lack of overall communication and lack of inclusion of all parties who needed to be involved: NRR/DORL and NRR/DIRS were not originally included; and 7. Staff's and management's failing to get OGCs interpretation of the 1O CF Rs prior to going outside the agency with a staff position that set new policy. As-provided to the DPO Panel by you on 4/13/2018 1. NRC management and staff appears to have lost its objectivity and exhibited severe mismanagement in development of a licensing strategy for accident tolerant fuel (ATF). Although this mismanagement is most evident in the development of a "no Offieial Use ORiy SeRsitive IRteFRal IAfeFfft&tien Sffieiel bis@ ORiy SeR&itb,e Internal lntormation M. Markley -3licensing strategy" for lead test assemblies (LTAs), the loss of objectivity is evident at all levels of the NRC. 2. Without consult of licensing experts in NRR/DORL,J O CFR 50.59 experts in NRR/DIRS or NRC Regional Offices, staff in DSS devetope~ incorrect regulatory position(s) in its presentation on ATF at the 2017 Regulatory,lhformation Conference, June 29, 2017 letter-response to NEI, and carried this forward into its October 25, 2017 position paper to the Commission. 3. DSS letter-response dated June 29, 2017, is incorrect in the following areas: (1) It provides an incorrect reading of the technical specifications (TS} for LTAs, as the only relaxation is representative testing, (2) All TS must be met, as written, in plain language, (3) All provisions of TS 4.2.1 have to be met (Zircaloy or ZIRLO cladding, U02 fuel, and NRC approved codes and methods}, and (4) the regulatory history is more consistent than asserted concerning amendments and exemptions, and limiting number and locations does not obviate the need to meet all TS requirements. 4. NRR position paper dated October 25, 2017, is incorrect in stating the following: (1) No exemption is needed for non-zirconium fuel designs, (2) No license amendment request (LAR) is needed to under TS 4.2.1 (when Improved TS language is used}, and (3) 10 CFR 50.59 is a potentially viable path for implementing the Hatch LTA program. 5. It is unacceptable to have a regulatory gap and no emergency core cooling system (ECCS) acceptance criteria if it can be argued that 1O CFR 50.46 does not apply as a means to meet GDC 35 or associated plant-specific design criteria. - 6. NRR responses to Commissioner Baran dated November 14, 2017, are inaccurate and misleading with respect to: (1) "cherry picking" licensing action excerpts that the biased position on GL 90-02 (Supplement 1), TS, and 10 CFR 50.59, (2) the extent to which safety culture was maintained in the working group, and (3) The outcome of the process was contrived to support the letter dated June 29, 2017. Licensing and 10 CFR 50.59 subject matter experts were not respected and an open-collaborative work environment was not maintained. 7. The NRC has no docketed basis to conclude the following issues will not affect ATF fuel integrity and, thus, safety of the commercial operating reactors: (1) thermal conductivity degradation, fission gap behavior, and swelling of non-U02 fuels (e.g., U3Si2) at light-water reactor temperatures, (2) mechanical behavior of smaller pellet designs, (3) possible nonlinear behavior (creep, hardening, burst behavior) of FeCrAI cladding, (4) variations in cladding thickness, and (5) effects of coatings on cladding stress, strain, and displacement. The NRC is remiss in its safety mission by dismissing these issues for LTAs based largely on "a limited number of lead test assemblies that have not completed representative testing may be placed in nonlimiting core regions." Regardless of numbers or locations, plant-specific licensing actions would be needed for LTAs with enrichment >5% U-235, cladding materials other than Zircaloy or ZIRLO, and fuels other than U02. 8. Licensee are expected to meet all the provisions of the TS, and not choose which ones apply in favorable circumstance. The June 29 letter raises a policy issue in its partitioning of the LTA provision of TS 4.2.1, has generic implications on the entire Offieiel 61se ORiy SeABili¥e IAleFRal IAfermalieA Official Use ORiy ioAsithce Internal lnfnrmauon -4- M. Markley body of TS requirements, and does not follow the Part 9900 guidance for developing TS interpretations. 9. The June 29 letter also presents an interpretation of the regulations in 10 CFR 50.46 without a regulatory approval by the Office of the General Counsel, as prescribed by the regulations in 10 CFR 1.23(c) and 10 CFR 50.3. 10. The suggested use of "unapproved analytical codes and methods" for LTAs is in direct contradiction to NRC/NRR licensing procedures for acceptance review (LIC109), amendments (LIC-101 ), and topical reports (LIC-500) and TS 4.2.1. DPO Panel Review The Panel concluded the following: 1. The two possible interpretations of TS 4.2.1 are at the core of the disagreements that ultimately resulted in this DPO. 2. The Panel finds that the initial interpretation of TS 4.2.1 (from the time of its introduction and first use) was that lead test assemblies introducing new cladding material were to be handled with both license amendments and exemptions from 10 CFR 50.46. However, over the years, variations and inconsistencies in approach have been accepted by the NRC staff. In the end, the Panel finds that both interpretations of TS 4.2.1 are legally correct, thus the choice of interpretation is a policy issue that must be decided at the highest levels of NRC management. 3. Past licensing history for LTAs has been varied and inconsistent, the Panel found precedents for LTA insertion via exemption requests followed by 50.59, LARs, or exemptions in combination with LARs, but the Panel could not verify whether the 50.59 was used as a standalone process to insert LTAs into a US power plant core. 4. The NRC's policy on the use of 50.59 to insert LTAs in reactor cores needs to be decided and clearly communicated. 5. The Panel found that communications broke down between the parties on the different sides of the LTA licensing issue at the core of this DPO. 6. The Panel found that DSS staff moved forward with communicating their position on LTA licensing to industry without prior vetting through the licensing divisions DORL and DIRS. DSS should have coordinated with DORL and DIRS in establishing their LTA licensing strategy, and should have done so before communicating their position publicly. 7. An affirmative regulatory action such as issuance of orders or a new administrative section of TS for LTAs/ATF instead of interpretations to justify no regulatory action would have supported more consistency and predictability for licensees and vendors. Such actions could, for example, have acknowledged the limited radiological consequences from failures of lead test assemblies and used acceptance criteria other than the traditional design basis limits established for fuel cladding. The approach defined in the June letter will likely result in a variety of approaches since it is reliant on individual interpretations by different licensees and vendors. QJtigial 11&& ORiy i&R&iti'•& IRt&FRal IRfG~atieR O~llial I lse ORiy ~eRsmue IRl&FRal IRfeFFRalien M. Markley -5- Based on these conclusions, the Panel made the following recommendations: 1. The NRC's policy on the licensing strategy to insert LTAs in reactor cores needs to be decided and clearly communicated to all stakeholders; 2. The NRC should clarify the interpretation of TS 4.2.1 that constitutes the official NRC interpretation of TS 4.2.1 and should clarify what constitutes "limited numbers" of fuel rods as well as what is meant by "non:lii'triting locations;" and 3. The technical experts and licensing experts should always communicate with each other and follow a consistent established process prior to announcing licensing strategies publicly or communicating these strategies to industry parties. Director's Decision I have reviewed your well-articulated concerns regarding the regulatory path for the insertion of lead test assemblies in US nuclear reactors. In finalizing this DPO decision, I realize that additional effort is ongoing to clarify NRC review of the LTA issue. Although the focus of your DPO is on the June 29, 2017, letter, I recognize that your concerns carryover to the letter which staff is developing to provide additional clarification (which was published in the Federal Register for comment on June 7, 2018.) The NRC staff has expended significant effort to clarify these issues and is committed to both answering concerns and providing clear expectations for the industry we regulate and NRC inspectors who oversee plant operations. During our discussion, I brought up an example that is very similar to the issue before us now regarding NRC review of LTA campaigns. When the industry was first faced with replacing steam generators, they performed their safety assessments and submitted them to the NRC by license amendments. Over time, as industry gained experience and operational experience, some utilities chose to perform these changes under 1O CFR 50.59. The NRC recognized that the regulator could provide proper review and oversight through either the license amendment or the 50.59 path. For LTAs, in my view, we are in a similar situation. Your DPO took issue that more coordination should have occurred within NRR in construct of the June 29, 2017, letter. Both the Panel and I agree with that concern. Although there is evidence that a project manager was aware of, the content of the memo, DORL and DIRS were not on concurrence in 2017. Of course, while divisional concurrence does not guarantee that individual staff will not have differing views, it does provide better assurance of cross-divisional collaboration. This lesson was applied over the last year where we have provided numerous opportunities to gather input and diverse views. Regarding the other aspects of your DPO, which would restrict another possible path for review of LTA campaigns (i.e., under 10 CFR 50.59), both the Panel and I disagree. The Panel availed themselves of your DPO, the non-concurrence (ML 181518016) on the updated draft letter, and the improved guidance in the draft letter. After considering all the information, I align with the conclusions provided by the Panel. The first two recommendations made by the Panel will be dispositioned by the revised letter to industry once it has gone through the public comment period and updated, as appropriate (assigned to O~eial Yee 9Aly SeAeili'le IAl8Ffl81 lflfeFFRBliM! Offieiel Use OAI~ M. Markley SeAsili,e IAleFF1el lAfeFFF1elien -6- DORL, due September 2018). Regarding the third recommendation, I have directed the NRR Leadership Team Chair to schedule a time with the NRR Executive Team to meet to talk specifically about the need for enhanced communication and the consistent use of established processes when dealing with these types of technical issues (assigned to LT Team Chair, due July 2018). It is important to note that significant staff effort has occurred over the last year, across several NRR divisions, in providing improved guidance. NRR chose a letter to convey this issue for two reasons: 1. It was the most efficient way to answer questions and provide clarity in a timely manner and could be coordinated with the associated Federal Register Notice to garner additional public comment; and 2. It could then be transferred to another document, if appropriate (e.g., Regulatory Guide). NRR is positioned to evaluate public comments on the draft 2018 letter and, as appropriate, issue improved guidance. During our discussion, we both discussed the necessity of these additional actions, which I have assigned: 1. If issued in letter format, evaluate whether a more enduring guidance document should be issued (assigned to DIRS, due October 2018); and 2. Coordinate NRR resources to assist regional reviews of 50.59 for LTAs, as appropriate (assigned to DIRS, due September 2018). A summary of the DPO will be included in the Weekly Information Report (when the case is closed) to advise interested employees of the outcome. The package will be made publicly available if this is an action you support. Thank you again for raising the issues in your DPO. An open and thorough exploration of how we carry out our regulatory processes is essential to keeping these programs effective. Your willingness to raise concerns with your colleagues and managers and ensure that your concerns are heard and understood is admirable and vital to ensuring a healthy safety culture within the Agency. Enclosure: DPO Panel report, dated June 18, 2018 cc: L. Dudes, NRR M. Evans, NRR A. Boland, OE G. Toledo, OE J. Giitter, NRR M. Gavrilas, NRR M. Miller, NRR M. Johnson, OEDO ()ffieiel Use Only Sensitioe lntemel ll'lferfl'lelien Offisial Use ORiy aeRsiti\•e IRtemal Information -7- M. Markley SUBJECT: DIFFERING PROFESSIONAL OPINION REGARDING NRC RESPONSE TO NEI CONCERNING THE REGULATORY PATH FOR LEAD TEST ASSEMBLIES (DP0-2018-002) DATED JULY 11, 2018 DISTRIBUTION: OED0-18-00080 RidsNrrOd T. Wertz. ADAMS Access1on No. Pk,a: ML18192A009; Memo: ML18192A056; Enclosure: ML18169A215 OFFICE NRR NAME BHolian DATE 07/11/18 OFFICIAL RECORD COPY Offiei11I Use Ofll~ 6efleiti·,e IRterRal IRMIFl"aliQR Offieiel Use ORiy SeR&iti•~ lote1+1al loformafioo Document 5: DPO Appeal Offteiel Use O"I~ Se"sitive IAterAal IRfermatioo Oflisial Us& ORiy Se1=111iti11e IRtecRal l1=1fQrCRation Document Markings... .,,.. ..... NRCFORM890 (~15) NRCMD 10.159 U.S. NUCLEAR REGULA TORY COMMISSION DP0-2018-002 \...... 1 11 « DPO CMe Number I~ DIFFERING PROFESSIONAL OPINION - APPEAL ~ DateAppealr ~\ \ 2Ull; Name end TKle of Submitter Organization Markley, Michael T. NRR/DORULPL2-1 Name and 1l1le of Supervisor OrganluUon Gregory Suber NRR/DORL Telephone Number (10 n001eric digits) (30 I) 415-5723 Telephone Number (10 numeric digits) (301)415-1680 Basis for flHng appeal. Focus should be on perceived flaws In the DPO Decision and why the egency should come to a dlffllf'ent conclusion. (Use continuation peg• or attach Word document) s~o:.t ecf\acLt~~-. SIGNATURE OF SUBMITIER DATE ~ SIONA TURE OF CO-SUBMITTER (If any) rz ./.,. - ll.-r ---x ~ - u ~/1/Z-Ol'i DATE SCAN THE SIGNED AND DATED FORM (INCLUDING CONTINUATION PAGES OR WORD DOCUMENTS) AND EMAIL TO: DP_Q.eM,Bt1Q!.m:;~@nrc.go_y DATE SIGNATURE OF :PO p ) : T A G E R j r \ ·¢, i\ 2-\2uz \ DPO appeal accepted D DPO appeal returned [Add~ ..... , I ~.Conllndallon ..... I NRC FORM 690 (08-2015) Document Markings ••• Official I lse ORiy S8P&itii1& IPt&FRal IR"1rCRaticm Page 1 of 1 Official Use Only Sensitioe lnte111al lnfor1rn1tion August 1, 2018 MEMORANDUM TO: Margaret M. Doane Executive Director for Operations FROM: Michael T. Markley, Chief ~ Plant Licensing Branch 2-1 Division of Operating Reactor Licensing Office of Nuclear Reactor Regulation SUBJECT: APPEAL FOR DIFFERING PROFESSIONAL OPINION REGARDING NRC RESPONSE TO NEI CONCERNING THE REGULATORY PATH FOR LEAD TEST ASSEMBLIES (DP0-2018-002) ,,-c.. The purpose of this memorandum is to submit a Differing Professional Opinion (DPO) Appeal for the Office of Nuclear Reactor Regulation (NRR) Director's decision dated July 11, 2018 (Agencywide Documents Access and Management System (ADAMS) Accession No. ML 18192A056), and the DPO Panel report dated June 18, 2018 (ADAMS Accession No. ML 18169A215). The DPO (DP0-2018-002) was submitted regarding the U.S. Nuclear Regulatory Commission (NRC) response dated June 29, 2017 (ADAMS Accession No. ML 17150A443), regarding the Nuclear Energy Institute (NEI) letter concerning the regulatory path for lead test assemblies (L TAs). Overall, there is fundamentally nothing wrong with the NRC Differing Views Program, and DPO process described in Management Directive (MD) 10.159, in particular. Each of these programs can be successful, if executed with integrity. This DPO Appeal is based on concerns with (1) DPO process implementation and (2) bias and prejudice affecting the results of both the immediate public health and safety issue evaluation and the DPO Panel findings. Communications and Exercise of NRC Open-Door Policy Myself and others on the NRC staff pursued maximum due diligence in attempting to correct errors in the letter dated June 29, 2017, signed by the Director of the Division of Systems Safety (DSS), Office of Nuclear Reactor Regulation (NRR). These communications included numerous discussions and expression of differing views with NRR Division executives and managers, meeting with the NRR Deputy Director, pre-briefing the Deputy Executive Director for Reactor and Preparedness Programs and participating in a Commissioners Assistants briefing, and holding individual open-door meetings with the NRC Chairman and each NRC Commissioner [Enclosure 1]. None of these discussions were effective in gaining appreciation for the fact that the NRC "got it wrong" in the letter to NEI dated June 29, 2017, concerning the use of 10 CFR 50.59, technical specification requirements, and the use of exemptions. Effectively, NRC executives and management at all levels "hunkered down" to find examples supporting its positions in the June 29 letter to the exclusion of the large body of evidence and contrary to the 1 Offieial I Isa ORiy S&REith•a IRtamal lofprmafiog -------- ------ - - - - Official I Isa Only Steosith1&Jetecnal lntocroatioo views of NRR licensing and 10 CFR 50.59 experts. Although I submitted this DPO as an individual NRR manager, many NRC licensing and inspection experts agree that the DSS letter dated June 29, 2017, is in error and "got it wrong." Thorough and Impartial Review A major objective of the DPO process is that each DPO receive "a thorough and impartial review." Below are several examples where DP0-2018-002 failed to establish or maintain impartiality of the DPO process. • By e-mail dated February 20, 2018, the DPO Program Manager (PM) forwarded the accepted DP0-2018-002 to the Acting NRR Director for dispositioning. Because the Acting NRR Director is a named individual in issues in DP0-2018-002, I sent an e-mail to the DPO PM, Director of the Office of Enforcement (OE), Director of the Office of Investigations (OIG), and others expressing objection to the NRR Director serving as the senior official responsible for dispostioning the DPO [Enclosure 2). By e-mail dated February 22, 2018, the DPO PM stated, "I understand your concerns, however, the DPO process as it is right now, dispatches the DPO submittal to the OD or RA for review and issuance of the DPO decision. Because the subject document was generated in NRR/DSS, ~ is the OD with authority over that document." Notwithstanding the procedure, the NRR Director is a named individual in the DPO and should have recused himself and sought assignment of another senior executive. • By e-mail dated February 21, 2018 [Enclosure 3), the NRR Director sent an e-mail to the DSS Director stating, "Looking for 4-5 bullets on why this is not an immediate safety concern. I will have the LT review, and then document in a memorandum to file." In addition to pre-judging the outcome, the NRR Director assigned this response to the DSS Director, who is the signature authority of the June 29, 2017 DSS letter, that is the subject of DP0-2018-002. The DSS Director assigned the review to the primary author (DSS senior level advisor) of the DSS letter dated June 29, 2018, and a reviewer in the Division of Risk Analysis. In response to an e-mail from the DSS Deputy Director asking if he has a copy of the DPO [Enclosure 4), the DSS senior level advisor, byemail dated April 6, 2018, stated, "No, I saw a copy only to address safety concerns. Then I destroyed it. I am not supposed to see it since it is written against my work." From my view, it is absolutely improper to have the primary author and approving official responsible for the June 29, 2017 DSS letter, to have a role for responding to any portion of the DPO. • MD 10.159 directs that the DPO not be reviewed by the submitter's immediate or second-level supervisor. Contrary to this expectation, on February 21, the DORL Director (my second-level supervisor) asked me to meet with him on the basis of the immediate public health and safety issue in my DPO. He interrogated me on this matter for about 25 minutes and asked, but mostly insisted, that there is no basis for an immediate shut down of the plant. By e-mail dated February 22 [Enclosure 5), I clarified 2 Glffieiel I.IBB GlRly ~BR&ilil'B IRl8FRiil lRf9r:Alali9R O~eiel Yee ORI) SeAsiti.e IAlefF1el lF1ferm11tien that, "No, because Hatch, Unit 1, is in outage, I see it as an immediate restart safety issue." The DORL Director responded later the same day, "FYI, I'm not sure this changes anything we've discussed," with copy to the DSS Director, NRR Director and NRR Deputy Directors. I strongly object to my second-level supervisor participating in the disposition of the DPO and feel strongly that his role in the DPO has had a chilling effect in DORL. • By e-mail dated February 26, 2018, I received an e-mail from the DORL Director forwarding the e-mail from the DSS Director to the NRR Director and Deputy Director dated February 23, 2018, providing the NRR "response to assertion of urgent LTA safety concern at Hatch," that was authored by the DSS senior level advisor and an individual in ORA. By e-mail dated February 26, 2018 [Enclosure 6] the DORL Director forwarded the DSS/DRA evaluation of the immediate safety issue disposition concerning Hatch. After several inquiries, by e-mail dated July 9, 2018 [Enclosure 7]. the DPO PM stated, "The immediate safety determination was not part of the DPO resolution. As Hatch was getting ready to load LTAs at the time you filed the DPO, NRR evaluated whether the immediate action was needed prior to the full review of your DPO." I strongly disagree with the OE assertion that the immediate safety issue is separate from the DPO process and reiterate the aforementioned objection and conflictof-interest concerns with the authors of the June 29, 2017 letter to NEI, developing the response to the immediate safety concern. I also questioned the DPO PM who was the "signature authority" of the immediate safety concern resolution, but never received an answer to this question. Technical concerns with immediate safety concern will be addressed in a subsequent portion of this DPO appeal. • In an e-mail dated March 6, 2018 [Enclosure 8], the DORL Director highlighted key messages stating, "The EDO and Chairman support the staff's position in the June 29 letter and the Hatch decision." From my view, this message indicates prejudice and bias at all levels of NRC management up to and including the EDO and Commission. All levels of NRC management have aligned with the position in the June 29 letter, and there is no evidence of independent thinking on the part of NRC executives and management regarding this matter. The current issuance of a clarification letter is further testament that NRC has lost its objectivity in going out of its way to create methods to allow licensees to avoid amendments and exemptions for LTAs and ATF. • By e-mail dated May 30, 2018 [Enclosure 9], the DORL Director send an "ATF manifesto" entitled, "Thoughts on Anniversaries," to the DORL branch chiefs (BCs) and deputy directors. During two subsequent DORL management staff meetings, the DORL Director requested BC support/endorsement. The BCs did not endorse the "ATF manifesto," and the DORL Director included most of it in an e-mail message, dated June 18, 2018 [Enclosure 1OJ, forwarding the Federal Register notice (83 FR 26503) of the "Draft Letter to the Nuclear Energy Institute [NEI] Regarding Clarification of Regulatory Paths for Lead Test Assemblies." These e-mails from the DORL Director had a chilling effect on the DORL BCs and staff for open-collaborative discussions regarding these 3 O~eiel Yse ORiy li.eRsiti>rs IRl8FRal IRfQFFRation Offisial I lse ORiy SeR&itive 1Rt8FR81 IRf8FFRatien- matters. One DORL senior project manager expressed concerns on numerous points in the draft letter to NEI [Enclosure11] but mostly expressed concerns with leadership, respect, and safety culture [Enclosure 12]. Many members of the DORL staff provided comments on the "clarification letter" anonymously via the NRC website. Immediate Public Health and Safety Issue Evaluation Contrary to the DPO PM assertion that the "immediate safety issue determination is not part of the DPO resolution," MD 10.159 places responsibility on the Chairman or Commission (Section 111.A.2), the EDO (Section 111.B.3), and office directors and regional administrators (Section 111.1.4.). All have responsibility to "Take action, as appropriate on a DPO submittal that appears to be of immediate public health and safety significance or that may be directly relevant to a decision pending before the Commission. MD 10.159 also states that the DPO PM (Section 111.L.8) has "Advises the appropriate level(s) of management to take action and informs the Commission and EDO, as appropriate, regarding submittals that appear to be of immediate public health and safety significance or that may be directly relevant to a decision pending before the Commission." From my view, the following MD 10.159 Directive Handbook (Section E.4.) considerations on establishing a DPO Panel also apply to assignment of staff to perform the immediate public health and safety issue evaluation: a) The chairperson must be a Senior Executive Service (SES) manager normally from an office other than the office assigned action on the DPO. b) Under no circumstance should the chairperson be the immediate supervisor or the second-line supervisor of the submitter and, to the extent possible, should not be in the submitter's chain of command. c) A DPO Panel member should not be in a position of authority over the submitter. d) To the extent possible, a DPO Panel should not include an individual who has directly participated in the formulation of the agency position that is at issue. e) A DPO Panel member should have the knowledge and skills necessary to evaluate the DPO. f) DPO Panel members must have sufficient time available to support the DPO process in accordance with timeliness goals. g) The DPO Panel should be viewed as credible and independent. The NRR DSS/DORL immediate public health and safety issue evaluation would not satisfy any of the above criteria, as noted in the above subsection of this DPO Appeal entitled ''Thorough and Impartial Review." The DSS/DRA analysis derives many points from the DPO and provides point-by-point arguments in response to two particular paragraphs explicitly from the DPO. As such, there is no basis to the claim that the DSS/DRA evaluation is not part of the DPO resolution. Below are flaws in the DSS/DRA evaluation: 4 Offi1oial I l&e Or:ily Ser:isitive lr:itemal lr:itocroafioo Q#lsisl I lee Ol'lly i111'11iti,e lr,tefRel IRfeffl"letieA • The DSS/DRA evaluation is, in part, more of a hand-waving dismissal of issues rather than a detailed technical evaluation ofthe proposed Hatch core reload. The DSS/DRA evaluation does not link back to the Southern Nuclear Operating Company (SNC) information report (NL-18-0026) submitted to the NRC on January 10, 2018 (ADAMS Accession No. ML 18012A047). It also does not address the licensee's 10 CFR 50.59 evaluation, core operating limits report (COLR), or preliminary NRC regional inspection findings of the Unit 1 outage. Accordingly, the DSS/DRA evaluation does not refer back to the Updated Final Safety Analysis Report (UFSAR) in any way for normal operation, abnormal operations, or accident conditions. • NRC Regional Inspection Report No. 2018001 (ADAMS Accession No. ML 18124A072), dated May 4, 2018, addresses the refueling and other outage activities for Hatch, Unit 1, Reload 28, Cycle 29, but does not, in any way, address the adequacy of the 10 CFR 50.59 evaluation for the core loading of LTAs or use of NRC-approved methods specified in the COLR. It is not apparent that questions of an immediate public health and safety issue, conservative engineering judgment, or evaluation of the core reload using NRC-approved methods in the COLR was evaluated by the Reactor Oversight Process (ROP). • The NRC staff cites numerous meetings with fuel vendors where non-public information was discussed in closed meetings. The NRC staff's evaluation is not based LTA information submitted on the docket as topical reports requesting NRC review and approval. Instead, the NRC staff makes unsubstantiated assertions of material performance under postulated conditions that have not been demonstrated in reactors (e.g., Halden in Norway) under applicable pressure, flow, and reactivity conditions. The five (5) issues the NRC staff argues are not a concern for Hatch are cited in an Idaho National Laboratory (INL) presentation as unresolved technical issues. • The ORA author of the immediate safety issue evaluation from a radiological perspective is a former plant operator and not a health physicist. As such, radiological evaluation takes a production-based approach to inventory management, process systems, structural shielding, and radiation protection. An evaluation of total effective dose (TEDE) for workers is altogether missing from evaluation. Likewise, evaluation of issues involving chemistry and changes in system source term buildup from failed fuel on the piping, valves, and systems is neglected altogether. There is no evaluation of accident analysis in Chapter 15 of the Updated Final Safety Analysis Report. There is no evaluation of the possibility of fuel handling accidents which may be one of the most substantial contributors to risk for LTAs. • In my prior working career before NRC employment, I made initial containment entries where the failed fuel contributed to 100 Derived Air Concentration (DAC) hours of iodine and more than 200 DAC hours of xenon. At some boiling water reactors, and Edwin I. Hatch plant in particular, Chromium 51 (Cr-51) is a particularly bad contributor to system 5 Q~sial lolse ORiy SeRsiti•,e IRterRal ll'lfer1¥1ati11R Oftisial I l&a ORiy Scnsith re lrtccnal lefQrfBati9fl dose, and thus, to workers. It is generally well shielded by piping and valve thicknesses but can be very high contributor for external dose to workers when opening systems (e.g., pulling recirculation pump impellers or valve body bonnets). There DSS/DRA immediate public health safety issue evaluation provides no assessment of effluents and offsite dose for members of the public. Formal DPO Resppnse By e-mail dated March 27, 2018 [Enclosure 13], to the NRR and OE Directors., I objected to the NRR selection of a DMLR Director as the Chair to the DPO Panel. • Selection of the DMLR Director as Chairman of the DPO Panel is also inconsistent with MD 10.159, Directive Handbook Section E.4.(a) that states, "The chairperson must be a Senior Executive Service (SES) manager normally from an office other than the office assigned action on the DPO." The DMLR Director is a direct report to the NRR Director. • The DPO Panel failed to interview 12 people that I identified during my initial meeting and subsequently via e-mail [Enclosure 14]. There are no DORL, DSS, or DRA managers on the interview list in the DPO Panel Report. No managers outside NRR were interviewed with the exception of the OE Director and OGC. Additionally, the leading fuel technical reviewer in NRR/DSS Nuclear Performance and Code Review Branch was not interviewed. With only a couple of exceptions, members of the ATF Steering Committee were not interviewed nor were members of the LTA Working Group. During my meeting with the DPO Panel, the Chairman and Panel members acknowledged that they could not get schedules coordinated to meet with a lot of people but stated that the "common themes" were apparent and agreed to proceed without further review. • The DPO Panel dismisses the issue of objectivity and mismanagement without proper inquiry of the issue. The NRR Director is explicitly identified in the DPO, but this issue is avoided altogether by the DPO Panel. By e-mail dated February 13, 2017 [Enclosure 15], the DORL Deputy Director and Steering Committee attempt to provide "cover" for the NRR Director by documenting a communication exchange with the subject licensee manager of Exelon Corporation concerning its draft 10 CFR 50.59 evaluation and solicitation for feedback, by redefining the role of that individual as representing NEI in a Conversation Record rather than Exelon. From my search, this is the only Conversation Record documented for years of back-door interactions with industry on ATF and LTAs. The only other recent prior example is the Conversation Record for Edwin I. Hatch, developed by a DORL licensing project manager under my supervision. 6 Offieiel Wee QRly Ser:i&itive lolecoal lofnrmatjoo Offieial l:Jee ORiy SeAsiti\•e IAterAal IR1'lrmatigr:i • The DPO Panel does address the fact that communication failures that led to the differing interpretations of technical specification 4.2.1 and the regulations in 10 CFR 50.59 and 50.46 continue. Senior NRC executives and managers continue to hold closed-door meetings, drop-in meetings, and workshops with the U.S. Department of Energy and industry on A TF and LTAs - without any participation of licensing experts in DORL and 10 CFR 50.59 experts in DIRS. • The DPO Panel aligned with the development of the LTA "clarification letter" that was under review and issued for public comment (83 FR 26503) prior to completion of the DPO Panel Report. The DPO Panel did not question the June 29, 2017 letter, as development of new regulatory positions, possible need for Congressional Review Act approval, or the flip-flopping of OGC views on the dual interpretation of technical specification 4.2.1, 10 CFR 50.59, and exemptions. From my view, the DPO Panel was influenced and focused improperly on supporting the management positions provided in the "clarification letter." • The DPO Panel also did not examine the ROP evaluation of LTAs, and Hatch in particular, in its consideration of 10 CFR 50.59. The DPO Panel did characterized the Statement of Considerations for 10 CFR 50.59 accurately, but there appears to be a gap in the regulatory assurance provided by the ROP for new fuel designs placed in reactors under 10 CFR 50.59. I do not agree with NRR Director's view, expressed during our meeting on the draft DPO Report, that this (DP0-2018-002) is a process issue and not a safety issue. San Onofre did an extensive 10 CFR 50.59 for its steam generator replacement and "got it wrong." Fuel is a primary fission product barrier to the release of radiation. • From my view, the DPO Panel did not do due diligence in reviewing the information resource material supporting the evaluation of technical issues identified in DPO Issue #7. All of these issues were identified previously in the Idaho National Laboratory meeting slides as being unresolved technical issues. • The DPO Panel failed to recognize that both TS 4.2.1 and the COLR TS (e.g. TS 5.6.3) require the use of NRC-approved codes and methods. Consequently, even if the LTA statement could be viewed independently from the other provisions of TS 4.2.1, the COLR TS (Improved Standard TS 5.6.3) states, "The analytical methods used to determine the core operating limits shall be those previously reviewed and approved by the NRC." The DPO Panel also neglects to consider the role of topical reports in the evaluation of new codes and methods and that NRC requires use the latest approved version of topical reports. 7 Official l:Jse Only Oefleitiwe IRtefRBI IAfeFfflatieR Offisial ' i&e Ool~ s nsili e Internal IAfeFffielieA Implementation of the process for DP0-2018-002 does not reflect what I would have expected for a thorough and impartial DPO review. I am particularly disappointed in the management prejudice and bias that appears to have influenced the DPO process and the DPO Panel Report, particularly with regard to aligning with positions in the LTA "clarification letter." Based on the above, NRC management and the DPO Panel appear to have substantial challenges with independence and credibility. I remain concerned over widespread NRC loss of objectivity and severe mismanagement at all levels on licensing and inspection (ROP effectiveness) issues concerning LTAs and ATF. This issue has also had a substantial "chilling effect" on NRR and the DORL licensing staff, in particular. I request that this DPO Appeal and all related materials be made publicly available. 8 Official I lee Del~ Sensitive Internal lnfnrrnatioA Offieiel Use Ofll~ 8ef1Sili¥8 IRl8FRal IRforAC1atil.iR OPEN-DOOR MEETINGS WITH NRC CHAIRMAN AND COMMISSIONERS ACCIDENT TOLERANT FUEL (ATF) Purpose: Discuss regulatory concerns regarding NRR management decisions and communications related to implementation of ATF lead test assemblies (LTAs). Outcome: Foster Commission engagement with NRR senior management to ensure that agency statements and documentation related to LTAs are materially correct, defensible from a regulatory perspective, and conform to applicable regulations and law Key Messages: • NRR management has created a new interpretation of TS 4.2.1 that is not derived from the plain language of the TS and the regulatory history o This new position allows the insertion of LTA fuel assemblies that: • Do not meet the TS specified clad type • Do not meet the TS specified fuel type • Do not meet the TS specified use of NRG-approved analysis methods c This new position results in a de facto amendment changing the requirements of the TS without use of the 10 CFR 50.90 amendment process o This interpretation is substantively different from the information published in the associated Sholty notice, thereby effectively circumventing the intent of the Shelly process to allow the public an opportunity to request a hearing o This interpretation departs from a history of license amendments to modify TS 4.21 when new cladding types are used • NRR management has created new interpretations of 10 CFR 50.59 and associated NRC-approved guidance. These interpretations: o Are not consistent with the regulation o Are not consistent with NRG-approved guidance o Introduce regulatory uncertainty into the 10 CFR 50.59 process • NRR management has adopted an interpretation that exemptions from 10 CFR 50.46 are not needed for fuels that are not ZIRLO or Zircaloy clad. This interpretation: < o Conflicts with a long history of exemptions that have been granted o Eliminates an opportunity for stakeholder engagement o Creates regulatory uncertainty regarding ECCS acceptance criteria • NRC review of exemption and amendment requests provides effective oversight of changes to the primary fission product barrier (fuel cladding) • NRR actions are not consistent with the Principles of Good Regulation including clarity, openness, and independence. ENCLOSURE 1 O#i&ial I h,e Q11I~ €ef1Siti¥e lflleFR81 IA#8FFRatien Qffiaial I log Only Secsitilm tntarnal letsrrnation Significant Communications NRR/DSS letter dated June 29, 2017 o Incorrect reading of standard TS provision for LTAs • Only relaxation is representative testing o All TS and regulations must be met, as written, in plain language o All TS provisions of TS 4.2.1 have to be met (Zircaloy, ZIRLO, U02, NRCapproved codes and methods) o Regulatory history has more consistent than expected on use of exemptions o Limiting locations and numbers does not obviate the need to meet all TS requirements NRR Position Paper dated October 25, 2017 o Some Hatch LTAs would require exemption under 50.46 o Hatch LTAs are not representative of other more exotic cladding and fuel LT As o No ECCS acceptance criteria (regulatory gap), if 50.46 is not applicable o Hatch LTAs would likely trigger an amendment via 50.59 (c)(2)(vii) or (c)(2)(viii) Baran Q&A Response dated November 14, 2017 o NRR presented only record portions that support management decisions o Change in NRC positions on TS compliance, exemptions, and 50.59 have broad implications beyond the use of LTAs o Issue of NRC-approved methods is not addressed o NRR position places a heavy burden on regional inspection ENCLOSURE 1 Offieial Use ORiy SeRsiti\19 1Rt9FR81 IR(CFT?tioo Official tJsc 81119 801:sitiue lnternel lr:tfeFfflatien Markley, Michael From: To: Wednesday, February 21, 2018 9:20 AM Markley, Michael Cc: Subject: RE: Acceptance of DPO Sent: Mike, I understand your concerns, however, the DPO process as it is right now, dispatches a DPO submittal to an OD or RA for review and issuance of a DPO decision. Because the subject document was generated in NRR/DSS, authority over that document. is the OD with Once the DPO Decision is issued, you, the submitter, can always appeal the DPO decision to the EDO (this will dispatch the DPO case to the next level ,the EDO, for his review and issuance of a DPO Appeal Decision). Here is a flowchart that explains it: http://www.internal.nrc.gov/OE/DPO/dpo-flowchart rl.pdf I hope this helps. Please give me a call if you have additional questions. From: Markley, Michael Sent: Wednesday, February 21, 2018 8:04 AM To: Cc: Subject: RE: Acceptance of DPO Importance: High . His e-mail in the DPO attachment is part of the There is kind of a problem with assigning this to evidence on the loss of objectivity and Michael T. Markley, Chief Plant Licensing Branch 11-1 (LPL21) Division of Operating Reactor Licensing (DORL) Office of Nuclear Reactor Regulation (NRR) U.S Nuclear Regulatory Commission (NRC) (Office) From: Sent: Tuesday, February 20, 2018 3:25 PM To: Markley, Michael Offiei11I l:Jse ORI~ 1 SeRsili'le IRteFRBI IRferftlatieR ENCLOSURE 2 Otficial I l&e ORiy SeR&ithca lota,oal loforroafioo Markley, Michael From: Sent: Thursday, February 22, 2018 6:52 AM To: Cc: Subject: RE: sensitive information: F'N: Notification of New DPO Do we plan to recommend that From: Sent: Wednesday, February 21, 2018 3:41 PM To: Cc: Subject: sensitive information: FW: Notification of New DPO Importance: High - Please do not forward this email and do not share the OPO without us chatting first. Let's talk about request • Thanks, From:Sent: Wednesday, February 21, 2018 3:22 PM To: Cc: Subject: FW: Notification of New DPO Importance: High Looking for 4-5 bullets on why this is not an immediate safety concern. I will have LT review, and then document in a memo to file From: Sent: Tuesday, February 20, 2018 3:37 PM To: Subject: Notification of New DPO Importance: High Good afternoon, 1 O~sial I I&& ORiy ~&R&ilh~ IRl&rRal IRfQri:iialiOR ENCLOSURE 3 O#i;ial I l&g ORiy iiR&itil'i IAtiFAal IRfeFR=laiiQR The purpose of this email is to notify you that OE has raceiv~.d •. scr:e~_ned,and accepted a new DPO for review under the DPO process. The DPO (DP0-2018-002) involves the NRC Response to NEI concerning the regulatory path for Accident Tolerant Fuel (ATF) Lead Test Assemblies (LTAs). For your convenience, we have attached the accepted DPO. Please limit distribution to those with a need-to-know to help ensure that the record is not inadvertently or prematurely released. In addition, the submitter has indicated that they believe that the issue represents an immediate safety concern. OE is in the process of forwarding this to the OEDO to support dispatching the DPO to appropriate dispositioning. Please feel free to contact me or DPO-related issues. NRR for if you have any questions or concerns about this DPO or other Thanks! Differing Views Program Manager Office of Enforcement lJ.S. Nuclear Regulatory Commission :\'tail Stop: 014 A50 Phone:-£mail: 2 Qfilial I lea ORiy S&R&itil/9 IRt&FRBI IAf8FfF18~iB1t ENCLOSURE 3 Offieiel Use ORiy SeReitiYe IRterRal IRfeFFRatieR Markley, Michael From: Sent: Friday, April 06, 2018 4:41 PM To: Subject: RE: response to assertion of urgent LTA safety concern at Hatch Ah, that makes sense. I am supposed to find one and few folks are around, so it will have to be Monday. From:Sent: Friday, April 06, 2018 4:39 PM To: Subject: RE: response to assertion of urgent LTA safety concern at Hatch No. I saw a copy only to address safety concern. Then I destroyed it. I am not suppose to see it since it is written against my work. From: Sent: Friday, April 06, 2018 4:37 PM To: Subject: RE: response to assertion of urgent LTA safety concern at Hatch Many thanks - you don't happen to have a copy of the DPO? From: Sent: Friday, April 06, 2018 10:10 AM To: Subject: FW: response to assertion of urgent LTA safety concern at Hatch Importance: High Here is the email with the final disposition enclosed. From: Sent: Friday, February 23, 2018 3:24 PM To: Cc: Subject: response to assertion of urgent LTA safety concern at Hatch Importance: High - Per your request, this is the staffs response to the assertion of an urgent safety concern at Hatch. are very grateful to for their prompt attention to this matter. llllland I Please let us know if you have any additional questions. Thanks, •• 1 Offieiel Use ORI~ SeAsiti.e lflteFfl81 lflftlFl'RatieR ENCLOSURE 4 Oftieial l:Jse Oril 1 Serieiti:e l111ter111sl l111J11W1ali&l'I Response to Assertion of Urgent Safety Concern at Hatch Purpose: The purpose of this paper is to address the assertion that an urgent safety issue exists due to the loading and operation of Lead Test Assemblies (LTAs) in Edwin I. Hatch Nuclear Power Plant, Units 1 and 2. This paper does not address the broader issues identified within the DPO. This paper also does not address the DPO's position on the regulatory process as to whether an LTA program requires prior NRC approval or whether its low risk significance moves it into inspection space (like all 50.59 plant modifications), Background: Hatch Unit 1 Cycle 29 fuel loading pattern will include 6 LTAs containing GN F accident tolerant fuel (ATF) design features. SNC Hatch· intends to irradiate 6 LTAs beginning in 2018 • i LTAs each containing Lead Test Rod (LTR) comprised of FeCrAI steel cladding (Ironclad) with no fuel pellets • ~ LTAs each containing LTRs comprised of coated Zry-2 cladding (ARMOR) with U02 pellets- - Safety Determination: The DPO states that "there is an urgent safety issue regarding the loading of LTAs in Edwin I. Hatch Nuclear Power Plant, Units 1 and 2 (Hatch)." The DPO includes the following statements regarding nuclear safety: • The NRC has no documented basis to support the expectation that these new cladding materials will perform as well as current operating fuel of that the new material will not cause an increase in the occupational exposure to workers or the public. • The NRC has no docketed basis to conclude the following issues will not affect ATF fuel integrity and, thus, safety of the commercial operating reactors: (1) thermal conductivity degradation, fission gap behavior, and swelling of non-U02 fuels (e.g., U3Si2) at light-water reactor temperatures, (2) mechanical behavior of smaller pellet designs, (3) possible nonlinear behavior (creep, hardening, burst behavior) of FeCrAI cladding, (4) variations in cladding thickness, and (5) effects of coating on cladding stress, strain, and displacement. SNC did not request prior NRC approval for the Hatch LTA campaign, thus, the staff has not been ask to review or reach a safety determination on the Hatch LTA campaign. Therefore, the above statements regarding the level of documentation needed to support the NRC staff's safety determination do not apply. The DPO asserts an urgent safety issue, which may also be viewed as an imminent safety concern considering the planned Cycle 29 Mode 2 entry on February 24, 2018. However, the DPO presents no evidence nor data to support their assertion. There is no information presented which forecasts poor performance of the Hatch LTAs nor the consequences of poor performance on public health and safety. There is also no risk determination to identify the safety significance. NRC staff has participated in numerous ATF-related meetings with DOE, EPRI, INL, industry, and international research organizations and regulatory agencies. Various ATF designs have been discussed including the type being loaded in the Hatch LTAs. NRR/DSS has no evidence that would suggest anticipated poor performance of the Hatch LTAs. GNF (as well as Framatome and Westinghouse) have presented design and fabrication details as well as test results on the performance of their coated zirconium cladding product. In June 2017, GNF presented tests results which demonstrate superior wear (abrasion) resistance and corrosion performance under both normal 2 Oflieial Use Orily Sel'lsiti,e lriterl'lnl ll'lferfl'latiel'I ENCL0SURE4 Gffi~ial I lse Only Seosiiive Internal lnformaiinn - operation and high temperature steam oxidation. (ML 17156A699) There were no indications that the chromium coating would lose its adherence, spall, delaminate, or dissolve under operating conditions nor accident conditions. With respect to the general, safety-related assertions within the DPO: (1) thermal conductivity degradation, fission gap behavior, and swelling of non-U02 fuels {e.g., U3Si2) at light-water reactor temperatures • Not applicable, Hatch LTAs contain standard U02 pellets (2) mechanical behavior of smaller pellet designs • Not applicable, Hatch LTAs contain standard U02 pellets (3) possible nonlinear behavior {creep, hardening, burst behavior) of FeCrAI cladding • Unirradiated FeCrAI cladding properties are well established • Differences or uncertainties in irradiated FeCrAI cladding properties are of no safety significance given that the tubes are unfueled. (4) variations in cladding thickness • Hatch LTAs have standard GNF RXA Zry-2 cladding coated with several microns of chromium (1/30 thickness of Zry-2 substrate). • The thin chromium coating has negligible impact on overall fuel rod heat transfer and its coating thermal conductivity is easily measured. (5) effects of coating on cladding stress, strain, and displacement • Impact of coating on fuel mechanical design stress and strain calculations during normal operation is insignificant. • Impact of coating on cladding strain during postulated accidents is likely insignificant and within the large spread of experimental data. From a radiological perspective, the DPO asserts that the new cladding may lead to an increase in the occupational exposure to workers or the public. In general, the following parameters contribute to the occupational exposure to workers and the public: (1) the concentration of each radionuclide in the reactor coolant; and (2) the fraction of fission product activity released to the reactor coolant. The core isotopic inventory is a function of the core power level. The reactor coolant isotopic activity concentration is a function of the core power level, the migration of radionuclides from the fuel, radioactive decay and the removal of radioactive material by coolant purification systems. The LTA will not change the core power level at Hatch, it remains in accordance with the Technical Specifications (TS). A couple of the LT As contain no fuel at all and the other assemblies contain standard U02 pellets. Moreover, in accordance with TS 4.2.1, the LTAs must be placed in nonlimiting core regions. Therefore, the NRC staff has no information presented which indicates that the fraction of fission product activity generated and its migration from the fuel would be increased. Due to the design of the shielding and containment surrounding the reactor vessel, and since the reactor vessel is inaccessible to plant personnel during operation, a possible increase in the radiation sources in the reactor core should have little effect on occupational worker personnel doses during power operations. Similarly, the radiation shielding provided in the balance of plant {i.e., around radioactive waste systems, main steam lines, the main turbine, etc.) is conservatively sized such that any increase associated with non-fission products and activation products are not expected to significantly increase the dose rates in the normally occupied areas of the plant. The design of the shielding and containment surrounding the reactor vessel has not been modified by the Hatch LTA campaign. In addition, the DPO presents no evidence or data to support the conclusion that the design margins of the purifications systems, i.e., reactor water cleanup system and condensate demineralizer system, will be exceed. Therefore, the NRC staff has reasonable assurance that design of the shielding and containment structure, and purification systems remains adequate and that radiological exposures will not increase. Furthermore, occupational exposure is controlled by the plant radiation protection program and is maintained within limits required by regulations. Thus, the slight possible increase in radiation levels does not affect radiation zoning or shielding in the various areas of the plant because it is offset by conservatism in the design Se1.sffiue h1te111al li1f01111at1on ENCL0SURE4 I • Offieiel Use 9Rly lt8R&ili>rli IR&8FRal IRKIF~atiefl and analytical techniques. Therefore, no change is required in the design basis radiation protection design features for the LTAs. The current as low as reasonable achievable (ALARA) program practices at Hatch (i.e., work planning, source term minimization, etc.), coupled with existing radiation exposure procedural controls, will be able to compensate for any possible increase in dose rates that may be associated with the LTAs. In conclusion, given staff knowledge of the limited scope of the LTA program and anticipated performance of the LTA features, the licensee meets the "limited number" and "nonlimiting" core region stipulations of their TS LTA provision. As such, staff expects that the combination of limited number and non limiting location provides reasonable assurance that the UFSAR safety analyses of record (i.e., bases for TS LCOs, LSSS, RPS/ESFAS, and safety-related SSCs) remain conservative and applicable. The staff concludes that there is no reasonable basis to support an urgent safety concern for Hatch. Staff notes that, if necessary, it can make a safety determination on the Hatch LTA campaign using the normal inspection process. Specifically, the staff may review the core reload 50.59 (and vendor supplied LTA safety assessment) for Unit 1 Cycle 29. 4 Oflieiel Uee ORiy SeRsitive IRterRal IRfsr~atisR ENCLOSURE 4 Official Use 01117 Se1 ,siti,e ltriterl'lnl 11 :fefffltttiefl Markley, Michael From: Sent: To: Cc: Subject: -- Thursday, February 22, 2018 12:53 PM FW: Immediate Safety Issue for Hatch FYI. I'm not sure this changes anything that we've discussed. From: Markley, Michael Sent: Thursday, February 22, 2018 7:45 AM To:Cc: Subject: Immediate Safety Issue for Hatch •• Yesterday, you questioned the basis for the immediate safety issue in my DPO and asked if I see it as an immediate shut down issue. I referred you back to the two key paragraphs in my DPO for the safety basis. Is it an immediate shut down issue? No, because Hatch Unit 1 is in outage. I see it as immediate restart safety issue! Michael T. Markley, Chief Plant Licensing Branch 11-1 (LPL2-1) Division of Operating Reactor Licensing (DORL) Office of Nuclear Reactor Regulation (NRR) U.S. Nuclear Regulatory Commission (NRC) -(Office) 1 Oflieiel l:lee 9Aly 6eAeitive IAteFABI IAfeFFA8ti8A ENCLOSURE 5 Ott.eiel Use ORiy SeReitiv& IRt&FRal IRfeFtflatieR Markley, Michael From: Sent - Monday, February 26, 2018 6:21 PM To: Cc: Subject: FW: response to assertion of urgent LTA safety concern at Hatch Importance: High - - I didn't see you on distribution for this. From:~ Sent: Friday, February 23, 2018 3:24 PM Subject: response to assertion of urgent LTA safety concern at Hatch Importance: High -· Per your request, this is the staff's response to the assertion of an urgent safety concern at Hatch. are very grateful to for their prompt attention to this matter. Please let us know if you have any additional questions. • Thanks, Response to Assertion of Urgent Safety Concern at Hatch Purpose: The purpose of th.is paper is to address the assertion that an urgent safety issue exists due to the loading and operation of Lead Test Assemblies (LTAs) in Edwin I. Hatch Nuclear Power Plant, Units 1 and 2. This paper does not address the broader issues identified within the DPO. This paper also does not address the DPO's position on the regulatory process as to whether an LTA program requires prior NRC approval or whether its low risk significance moves it into inspection space (like all 50.59 plant modifications). Background: Hatch Unit 1 Cycle 29 fuel loading pattern will include 6 LTAs containing GNF accident tolerant fuel (ATF) design features. SNC Hatch int ds to irradiate 6 LTAs beginning in 2018 • i LTAs each containing Lead Test Rod (LTR) comprised of FeCrAI steel cladding (Ironclad) with no fuel pellets • ~ LTAs each containing LTRs comprised of coated Zry-2 cladding (ARMOR) with U02 pellets - - Offieial lz:lee QRly 98R81i,ce IRt&FR&I IRKlrA:aatigR ENCLOSURES Qfiai1I I l1e a, IJ S nsiti e h trreel lete:mefien Markley, Michael From: Sent: To: Monday, July 09, 2018 11:58 AM Markley, Michael Cc: Subject: RE: response to assertion of urgent LTA safety concern at Hatch Mike, The immediate safety determination was not part of the DPO resolution. As Hatch was getting ready to load LJ As at the time you filed the DPO, NRR evaluated whether immediate action was needed prior to the full review of your DPO. · OE had a role in coordinating the establishment of a skilled and independent DPO Panel (that did not include an individual who has directly participated in the formulation of the agency position that is at issue). The DPO Panel added independency to the review of the technical issues and IAW the DPO MD 10.159, their conclusions and recommendations will assist NRR's OD to issue a DPO Decision . . . and/or I will be glad to sit with you and answer any DPO process questions you may have. Thanks, From: Markley, Michael Sent: Monday, July 09, 2018 9:25 AM Subject: RE: response to assertion of urgent LTA safety concern at Hatch Thank you. I understand. I do, however, find it highly self-serving that the persons subject to the DPO prepared thispof!ion of the DPO response. My sense is that OE had a role in ensuring the evaluation was conducted independ.~ntly of the persons subject to the DPO. The same is true for as an e-mail from him is cited explicitly·~n. the DPO. Michael T. Markley, Chief Plant Licensing Branch 11-1 (LPL2-1) Division of Operating Reactor Licensing (DORL) Office of Nuclear Reactor Regulation (NRR) U.S. Nuclear Regulatory Commission (NRC) -(Office) 1 Offieial Yse ORiy SeAsitive IAl8FABI IAfBFFABlien ENCLOSURE 7 -Offieial lJse Daly Seosifiue lo+ernal lafcFSHtinn From: Sent: Monday, July 09, 2018 8:53 AM Subject: RE: response to assertion of urgent LTA safety concern at Hatch Hello-, As NRR has the knowledge and skills, they are in the best position (not OE) to evaluate the urgent safety assertion involving Hatch, respond to, and take action, if needed. OE recommends you engage the NRR's management team for your second question and any other follow-up questions. are available to meet with you, if you would like, to try to answer any DPO process questions. Thanks, From: Markley, Michael Sent: Tuesday, July 03, 2018 1:48 PM To: Cc: Subject: RE: response to assertion of urgent LTA safety concern at Hatch -· I received this f r o m - · not OE. Who is the signature authority for the immediate safety issue evaluation? It is my understanding that all aspects of the DPO are to be evaluated independently of persons subject to the issues within the DPO. Can you explain why evaluated this portion of the DPO when it is his work and positions that are. in part, at issue within the DPO? Michael T. Markley, Chief Plant Licensing Branch 11-1 (LPL2-1) Division of Operating Reactor Licensing (DORL) Office of Nuclear Reactor Regulation (NRR) U.S. Nuclear Regulatory Commission (NRC) (Office) From: Sent: Tuesday, July 03, 2018 1:35 PM To: Cc: Subject: RE: response to assertion of urgent LTA safety concern at Hatch Importance: High Offiei11I Use 01'11~ SeRe~·,e IRterAal IAf9FFAatigR ENCLOSURE 7 Official Use 01'11~ Sel'lsiti,e IAlefAel IAfeffAelieA Hello Mike, Attached is the response to the assertion regarding the immediate safety issue at Hatyh. We believe you received it already, but I'm including it here as well. · Regarding NRR's schedule to issue a DPO Decision, they have until the end of the month. Please note that DPO cases can be made available to the public, with redactions as needed, once they are closed out (DPO Decision issued and no appeal filed or DPO Appeal Dec;ision issued, if appealed to the EDO). Thanks, From: Markley, Michael Sent: Tuesday, July 03, 2018 7:57 AM To: Cc: Subject: FW: response to assertion of urgent LTA safety concern at Hatch Importance: High I did not receive anything from OE regarding the immediate safety issue. Who is the signature authority for this determination? Is this the official NRC evaluation and position on the immediate safety issue in response to my DPO? It was not included in the DPO Panel report provided by What is the schedule for completing NRR Director's decision on the DPO? I do want it to be made publicly available during the comment period for the "clarification letter· to NEI. From:~ Sent: Monday, February 26, 2018 6:21 PM To: Cc: Subject: FW: response to assertion of urgent LTA safety concern at Hatch Importance: High 11111- I didn't see you on distribution for this. From:~ Sent: Friday, February 23, 2018 3:24 PM To: Official Use 01'11, SeAs~i·,·e IRterRal lotocrnatioo ENCLOSURE 7 Offisial Yse ORiy ~8RSitiH8 IRWFRal IRM!FFRiiMi8R Subject: response to assertion of urgent LTA safety concern at Hatch Importance: High Per your request, this is the staffs response to the assertion of an urgent safety concern at Hatch. are very grateful to for their prompt attention to this matter. Please let us know if you have any additional questions. • Thanks, Response to Assertion of Urgent Safety Concern at Hatch Purpose: The purpose of this paper is to address the assertion that an urgent safety issue exists due to the loading and operation of Lead Test Assemblies {LTAs) in Edwin I. Hatch Nuclear Power Plant, Units 1 and 2. This paper does not address the broader issues identified within the DPO. This paper also does not address the DPO's position on the regulatory process as to whether an LTA program requires prior NRC approval or whether its low risk significance moves it into inspection space {like all 50.59 plant modifications). Background: Hatch Unit 1 Cycle 29 fuel loading pattern will include 6 LTAs containing GNF accident tolerant fuel (ATF) design features. SNC Hatch int ds to irradiate 6 LTAs beginning in 2018 • i LTAs each containin Lead Test Rod {LTR) comprised of FeCrAI steel cladding {lronClad) with no fuel pellets • ~ LTAs each containing LTRs comprised of coated Zry-2 cladding {ARMOR) with U02 pellets- - Safety Determination: The DPO states that "there is an urgent safety issue regarding the loading of LTAs in Edwin I. Hatch Nuclear Power Plant, Units 1 and 2 (Hatch}." The DPO includes the following statements regarding nuclear safety: • The NRC has no documented basis to support the expectation that these new cladding materials will perform as well as current operating fuel of that the new material will not cause an increase in the occupational exposure to workers or the public. • The NRC has no docketed basis to conclude the following issues will not affect ATF fuel integrity and, thus, safety of the commercial operating reactors: (1) thermal conductivity degradation, fission gap behavior, and swelling of non-U02 fuels (e.g., U3Si2) at light-water reactor temperatures, (2) mechanical behavior of smaller pellet designs, (3) possible nonlinear behavior (creep, hardening, burst behavior} of FeCrAI cladding, (4) variations in cladding thickness, and (5) effects of coating on cladding stress, strain, and displacement. SNC did not request prior NRC approval for the Hatch LTA campaign, thus, the staff has not been ask to review or reach a safety determination on the Hatch LTA campaign. Therefore, the above statements regarding the level of documentation needed to support the NRC staffs safety determination do not apply. GJ!ieial Use Olily 9elis~.e l1ite1nel lnfern'latieR ENCLOSURE 7 Official Use ORiy Markley, Michael From: Sent: SeRsilive IRlerRal lotocroalioo - Tuesday, March 06, 2018 10:37 AM To: Cc: RE: The LTA SC wanted to pass along the following to the WG. Subject: The highlighted bullet below was inadvertently left off the email that I sent out yesterday. Key Messages from Meetings with the OEDO (2/5/2018) and the Chairman (2/6/2018) • The goal is to share information and build confidence in this important area • A TF is an area for innovation • We need to be aligned on the process that enables licensees to load LTAs • LTAs are necessary to gamer the potential safety benefits offered by ATF • We will achieve success through a shared understanding • The EDO and Chairman support the staff's position expressed in the June 29 letter and in the Hatch decision • A COMSECY is not needed Path Forward • • Develop guidance to ensure consistency (e.g. public memo from Acting Director, NRR to NRR and Regions) o DSS drafts the technical aspects o WG members review and comment during division concurrence o OGC will conduct a Congressional Review Act (CRA) review of the memo before it is issued. o Prepare FRN notice for public comment period on guidance Evaluate whether the memo answers industry licensing questions, or if additional guidance is needed Offieial Use ORI~ SeRsit~. Int: II IRkl~r;iatioR ENCLOSURES "Official l:lee ORiy ~eRsithse lotecoat lrfarmeUen From: Sent: Monday, March 05, 2018 1:17 PM Subject: The LTA SC wanted to pass along the following to the WG. As you recall, the SC met with the WG shortly after the meeting with the Chairman. We wanted to follow-up with a high level summary of our feedback from the EDO and the Chairman meetings and to discuss the path forward that the SC has agreed upon. We expect the interim guidance under development will be circulated for concurrence in the very near future. Key Messages from Meetings with the OEDO (2/5/2018) and the Chairman (2/6/2018) • • • • • • The goal is to share information and build confidence in this important area ATF is an area for innovation We need to be aligned on the process that enables licensees to load LTAs LTAs are necessary to garner the potential safety benefits offered by ATFris We will achieve success through a shared understanding A COMSECY is not needed Path Forward • • Develop guidance to ensure consistency (e.g. public memo from Acting Director, NRR to NRR and Regions) o DSS drafts the technical aspects o WG members review and comment during division concurrence o OGC will conduct a Congressional Review Act (CRA) review of the memo before it is issued. o Prepare FRN notice for public comment period on guidance Evaluate whether the memo answers industry licensing questions, or if additional guidance is needed "9ffieiel Yee ORiy SeReiive IAterRal IRfQrrnatioR ENCLOSURE 8 Offieial Uee ORiy SeR&itive IRtecnal lotocrnaUon Markley, Michael From: Sent: Wednesday, May 30, 2018 3:41 PM To: Subject: Attachments: FW: Thoughts on Anniversaries (mfk).docx Thoughts on Anniversaries (mfk).docx This is the email that I drafted over a month ago and never sent out. Please take a look at this with fresh eyes and let me know if your think we should change anything or even send it out? From: Sent: Wednesday, April 25, 2018 6:28 PM To: Subject: Thoughts on Anniversaries (mfk).docx • - This is what I sent around to my peers for comment. One suggestion was to send this out to all of NRR. Official Use 01119 Sens~i,e IRtarnal leta.aBatieR ENCLOSURE 9 Offieiel l:Jse 01'11) Sel'lsiti. e IFIIBFFIBI 1Flf8FA'lelti9R Thoughts on Anniversaries. Most organizations tend to celebrate happy occasions, like anniversaries of when the company was founded. At NRC we tend to commemorate bad things, like anniversaries of accidents. Did you ever wonder why we do that? I believe that we do that because we want to remind ourselves of what can happen if we lose our safety focus. It is usually watershed .events, like Three Mile Island and Fukushima, which have caused the agency to sharpen our focus or to change the way we regulate. It was only seven years ago-when I was last working in DORL-that many of us were working around the clock in the NRC Operations Center trying to contribute in any way we could to help out Japan. One of the indelible memories from that experience was the sick feeling that I had after seeing the photos of the breached secondary containments. I remember wishing that there could be a technological solution that would prevent this from ever happening again. Fast forward to today. There have been a number of safety improvements implemented at operating reactors like hardened vents and FLEX equipment. These are great features for mitigating accidents, but what about preventing core damage in the first place. As the agency takes a more risk-informed approach to its regulatory activities, the NRC is and should be encouraging new technologies and processes that reduce challenges to any of the fission product barriers. In focusing resources on the regulatory framework around these innovations, there is a greater likelihood of success in realizing the benefit of the new technologies and an associated increase in safety. I believe that one of these new technologies, Accident Tolerant Fuel or ATF, has the potential to take safety to the next level. As you know, there are a number of fuel vendors that are developing new cladding materials and fuel types that would be more resistant to the most likely accident sequences, like station blackout. Even if these new fuel types would delay core damage by 2 hours, it would substantially increase the likelihood that other recovery strategies, like FLEX equipment, could be deployed in a time frame that would preclude a Fukushima-like accident scenario. Of course, a side benefit for industry is reduced O&M costs as the result of relaxing some of the current design basis accident requirements, like emergency diesel generator start and load sequencing times. An important and necessary step in the development of ATF is the gathering of data, which involves loading a relatively small number of fuel assemblies containing a small number of ATF rods into operating reactors. These rods are removed and transported to a hot cell to examine the material properties of the fuel and cladding. This information is vital to the development and deployment of ATF fuel in the future. Unfortunately, the regulatory precedent for LTAs has been inconsistent. Some licensees have loaded LTAs using a license amendment process, others have loaded them under the 50.59 evaluation that was conducted for core reload and other licensees have relied on the language in their Standard Technical Specifications that provide for loading of a limited number of LTAs in non-limiting core regions. We have been working on a letter to NEI that clarifies the NRC position on LTAs, consistent with our Principles of Clarity and Reliability. This letter would clarify the staff position until more durable guidance is developed. I appreciate the time and effort that several of you have spent in researching the licensing history and developing recommendations on a regulatory approach. Concerns were expressed Offieial Use ORiy S&R£iti1ce Internal lnfnrmalinn ENCLOSURE 9 Qffieial I las Onlr ftsnsitiue Internal lnfnrmatinn regarding the applicability of 1O CFR 50.46, interpretation of the standard technical specification on fuel assemblies, and whether or not ATF LTAs would always screen in or could screen out of a 50.59 evaluation. Other managers and I have carefully considered your input in our direction with development of the clarifying letter, although not all of you will agree with the outcome. One of the great strengths of our agency is its collegial decision-making. This is not to say that everyone always agrees with the final decision. It means that opinions and input, whether we agree or not, are not only welcomed, but invited. So, as we continue our important work on ATF and other activities, please continue providing your input on important regulatory decisions and I will be listening. Offieiel Use 0111) Se11siti,e ll'lteFAal IAfei:matisA ENCLOSURE 9 Official Use 8111) Markley, Michael From: Sent: To: Subject: Attachments: GeP'leiti,e IRterRel lRferFRati&A - Monday, June 18, 2018 5:41 PM NRR__DORL Distribution One of the things that makes NRC a great, but different, place to work. 2018-12276.pdf Most organizations tend to celebrate happy occasions, like anniversaries of when the company was founded. At NRC we tend to commemorate bad things, like anniversaries of accidents. Did you ever wonder why we do that? I believe that we do that because we want to remind ourselves of what can happen if we lose our safety focus. It is usually watershed events, like Three Mile Island and Fukushima, which have caused the agency to sharpen our focus or to change the way we regulate. It was only seven years ago-when I was last working in DORL-that many of us were working around the clock in the NRC Operations Center trying to contribute in any way we could to help out Japan. One of the indelible memories from that experience was the sick feeling that I had after seeing the photos of the breached secondary containments. I remember wishing that there could be a technological solution that would prevent this from ever happening again. Fast forward to today. There have been a number of safety improvements implemented at operating reactors like hardened vents and FLEX equipment. These are great features for mitigating accidents, but what about preventing core damage in the first place? As the agency takes a more risk-informed approach to its regulatory activities, the NRC is and should be encouraging new technologies and processes that reduce challenges to any of the fission product barriers. In focusing resources on the regulatory framework around these innovations, there is a greater likelihood of success in realizing the benefit of the new technologies and an associated increase in safety. I believe that one of these new technologies, Accident Tolerant Fuel or ATF, has the potential to take safety to the next level. As you know, there are a number of fuel vendors that are developing new cladding materials and fuel types that would be more resistant to the most likely accident sequences, like station blackout. Even if these new fuel types would delay core damage by 2 hours, it could substantially increase the likelihood that other recovery strategies, like FLEX equipment, could be deployed in a time frame that would preclude a Fukushima-like accident scenario. An important and necessary step in the development of ATF is the gathering of data, which involves loading a relatively small number of fuel assemblies containing a small number of ATF rods into operating reactors. These rods are removed and transported to a hot cell to examine the material properties of the fuel and cladding. This information is vital to the development and deployment of ATF fuel in the future. Unfortunately, the regulatory precedent for LTAs has been inconsistent. Some licensees have loaded LTAs using a license amendment process, others have loaded them under the 50.59 evaluation that was conducted for core reload and other licensees have relied on the language in their Standard Technical Specifications that provide for loading of a limited number of LTAs in non-limiting core regions. Consequently, we have drafted a letter to NEI that clarifies the NRC position on LTAs, consistent with our Principles of Clarity and Reliability. The letter was recently published in the Federal Register for comment (see attachment). I want to recognize Kim Green for her relentless effort and outstanding leadership in helping us draft this letter. I also appreciate the time and effort that several of you have spent in researching the licensing history and developing recommendations on a regulatory approach. Concerns were expressed regarding the applicability of 10 CFR 50.46, interpretation of the standard technical specification on fuel assemblies, and whether or not A TF LTAs would always screen in or could screen out of a 50.59 evaluation. Oftieinl I Isa Only Scssfti:rc lntcrnal lnfnrmatior:t ENCLOSURE10 Official Use Or 1ly - Set 1silive h1ter, ,al Ii 1ru1, 11ation One of the great strengths of our agency is its collegial decision-making. This is not to say that everyone always agrees with the final decision. It means that opinions and input, whether we agree or not, are not only welcomed, but invited, and fully considered when making the final decision. So, as we continue our important work on ATF and other activities, please continue providing your input on important regulatory decisions and I will be listening. Qffi&ial Use QAly SeA&~ve IAterAal IAfeffflatien ENCL0SURE10 Official Use 011ly Federal Date December 17, 2012 ....... . December 17, 2015 ....... . February 1, 2009 .......... .. May 15, 2017 ................ .. April 25, 2016 ................ . April 25, 2016 ................ . May 11, 2018 ................. . Regist~~/Vol. I 83, Oe11sitiue ll"ltCPl"ISI lt11teP111atieR 26503 No. 110/Thursday, June 7, 2018/Notices ADAMS Accession No. Document Submission of PGEC DFP ..................................................................................................... Submission of PGEC Triennial DFP ...................................................................................... Environmental Assessment for Final Rullr--Decommissioning Planning ............................. Note to File Re: Section 7 Consultations for ISFSI DFPs .................................................... . Consultation Letter (ML16120A553-RLSO) ....................................................................- .. .. Letter to M. Fris, U.S. Fish and Wildlife Service Re: NRG Preliminary Determination of No Effects Regarding the Diablo Canyon ISFSI DFP. Final EA for the Approval of the DFP .................................................................................... Dated at Rockville, Maryland, this 4th day ofJune, 2018. For the Nuclear Regulatory Commission. John McKirgan, Branch Chief. Spent Fuel Licensing Branch, Division of Spent Fuel Management, Office of Nuclear Material Safety and Safeguards. [FR Doc. 2018-12249 Filed 6~-18; 6:45 am) BILLING CODE 7590-C>1-P NUCLEAR REGULATORY COMMISSION Advisory Committee on the Medical Uses of Isotopes: Meeting Notice AGENCY: Nuclear Regulatory Commission. ACTION: Notice of meeting. SUMMARY: The U.S. Nuclear Regulatory Commission (NRCJ will convene a teleconference meeting of the Advisory Committee on the Medical Uses of Isotopes (ACMUI) on July 16, 2018, to discuss the draft report of the ACMUI Subcommittee on Training and Experience Requirements for All Modalities. This report will include the subcommittee's comments on the NRC stafrs evaluation of the training and experience requirements for different categories of radiopharmaceuticals in Title 10 of the Code of Federal Regulations, part 35, "Medical Use of Byproduct Material," Subpart E. "Unsealed Byproduct Material-Written Directive Required." Meeting information, including a copy of the agenda and handouts, will be available at http://www.nrc.gov/reading-rmldoccollectionslacmuilmeetingsl2018.htm I. The agenda and handouts may also be obtained by contacting Ms. Maryann Ayoade using the information below. DATES: The teleconference meeting will be held on Monday. July 16, 2018, 2:00 p.m. to 4:00 p.m. Eastern Time. Public Participation: Any member of the public who wishes to participate in the teleconference should contact Ms. Ayoade using the contact information below or may register for the GoToWebinar at https:/1 attendee.gotowebinar.comlregisterl 2201638285137455618. Contact Information: Maryann Ayoade, email: Maryann.Ayoade@ nrc.gov, telephone: (301) 415-0862. Conduct of the Meeting Dr. Christopher Palestro, ACMUI Chairman, will preside over the meeting. Dr. Palestro will conduct the meeting in a manner that will facilitate the orderly conduct of business. The following procedures apply to public participation in the meeting: 1. Persons who wish to provide a written statement should submit an electronic copy to Ms. Ayoade at the contact information listed above. All submittals must be received by July 11, 2018, three business days prior to the meeting, and must pertain to the topic on the agenda for the meeting. 2. Questions and comments from members of the public will be permitted during the meetings, at the discretion of the Chairman. 3. The draft transcript and meeting summary will be available on the ACMUI's website http://www.nrc.gov/ reading-rmldoc-collections/acmuil meetings/2018.html on or about August 27, 2018. This meeting will be held in accordance with the Atomic Energy Act of 1954, as amended (primarily Section 161a); the Federal Advisory Committee Act (5 U.S.C. App); and the Commission's regulations in Title 10 of the Code of Federal Regulations, part 7, "Advisory Committees." Dated at Rockville. Maryland, this 4th day of June, 2018. For the Nuclear Regulatory Commission. Russell E. Chazell, Federal Advisory Committee Management Officer. IFR Doc. 2018-12269 Filed -16; 8:45 am! BILLING CODE 7590--01-P Official I Isa Gair Scnrm,re lntcrnel lnfssrnafioc ML12353A315 ML15351A502 ML090500648 ML17135A062 ML17107A273 ML16120A606 ML18131A047 NUCLEAR REGULATORY COMMISSION [NRC-2018-0109) Draft Letter to the Nuclear Energy Institute Regarding the Clarlflcatlon of Regulatory Paths for Lead Test Assemblies AGENCY: Nuclear Regulatory Commission. ACTION: Notice of availability; opportunity for comment. SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is soliciting public comments on a draft letter to the Nuclear Energy Institute (NEI) clarifying the regulatory paths for the use of lead test assemblies (LTAs). This draft Jetter would finalize the NRC staffs views on the preliminary positions regarding LTAs provided in a Jetter to NEI dated June 29, 2017. The NRC does not currently have consolidated regulatory guidance regarding the use of LTAs. Therefore, the NRC has drafted this letter to clarify its positions regarding the use of LT As. These positions would affect light-water reactor licensees who wish to irradiate LT As. DATES: Submit comments by June 27, 2018. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received before this date. ADDRESSES: You may submit comments by any of the following methods: • Federal Rulemaking website: Go to http://www.regulotions.gov and search for Docket ID NRC-2018-0109. Address questions about NRC dockets to Jennifer Borges; telephone: 301-287-9127; email: Jennifer.Borges@nrc.gov. For technical questions. contact the individuals listed in the FOR FURTHER INFORMATION CONTACT section of this document. • Mail comments to: May Ma, Office of Administration, Mail Stop: TWFN-7A60M, U.S. Nuclear Regulatory Commission, Washington, DC 205550001. For additional direction on obtaining information and submitting comments, see "Obtaining Information and ENCL0SURE10 OFAcial ~se 8::ls 26504 8weili, e IMlllfMlill li;ife~atian Federal Register/Vol. 83, No. HO/Thursday, June 7, 2018/Notices Submitting Comments" in the SUPPLEMENTARY INFORMATION section of this document. FOR FURTHER INFORMATION CONTACT: Jennifer Whitman, Office of Nuclear Reactor Regulation, telephone: 301415-3253, email: Jennifer.Whitman® nrc.gov, or Kimberly Green, Office of Nuclear Reactor Regulation, telephone: 301-415-1627, email: Kimberly.Green@ nrc.gov. Both are staff of the U.S. Nuclear Regulatory Commission, Washington, DC 20555--0001. SUPPLEMENTARY INFORMATION: I. Obtaining Information and Submitting Comments A. Obtaining Information Please refer to Docket ID NRG-20180109 when contacting the NRC about the availability of information for this action. You may obtain publiclyavailable information related to this action by any of the following methods: • Federal Rulemaking Website: Go to h ttp:llwww.regulations.gov and search for Docket ID NRG-2018-0109. • NRC's Agencywide Documents Access and Management System (ADAMS}: You may obtain publiclyavailable documents online in the ADAMS Public Documents collection at http://www.nrc.gov/reading-nnl adorns.html. To begin the search, select "ADAMS Public Documents" and then select "Begin Web-based ADAMS Search." For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209,301-415-4737,orby email to pdr.resource@nrc.gov. For the convenience of the reader, instructions about obtaining materials referenced in this document are provided in the "Availability of Documents" section. • NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room 01-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. B. Submitting Comments Please include Docket ID NRG-20180109 in your comment submission. The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at http:// www.regulations.gov as well as enter the comment submissions into ADAMS. The NRC does not routinely edit comment submissions to remove identifying or contact information. If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS. n. Background This draft letter clarifies the NRC staffs interpretation of Standard Technical Specification (STS) 4.2.1, "Fuel Assemblies." The first part of STS 4.2.1 places limitations on the number of fuel assemblies in the reactor core, the type of fuel that can be used, the cladding material that can be used (e.g., zircaloy or ZIRLO), end requires the use of NRG-approved codes and methods for the fuel assemblies. The last sentence of STS 4.2.1 allows for the irradiation of a limited number of LTAs that have not completed representative testing if pieced in nonlimiting regions of the reactor core. In the past, licensees have taken different approaches when conducting LTA campaigns. Some licensees obtained prior NRC approval by license amendments approving changes to Technical Specification (TS) 4.2.1 or exemptions from § 50.46, "Acceptance criteria for emergency core cooling systems for light-water nuclear power reactors," of title 10 of the Code of Federal Regulations (10 CFR), or both, for their LTA campaigns. Other licensees conducted LTA campaigns under 10 CFR 50.59, "Changes, tests, and experiments," without prior NRC approval. This draft letter to NEI clarifies the NRC's current interpretation of when prior NRC approval is needed for LTA campaigns. This draft letter responds to concerns from stakeholders, including NEI, that there is a lack of clarity in the regulatory requirements associated with the use of Document LTAs. For example, concerns were raised on the preliminary positions regarding LTAs provided in a letter to NEI dated June 29, 2017, as comments. in response to the NRC's publication of the document, "Draft Project Plan to Prepare the U.S. Nuclear Regulatory Commission to License and Regulate Accident Tolerant Fuel" (82 FR 60633; December 21, 2017), and in a license amendment request for Byron Station, Unit 2, dated March 8, 2018. The draft letter provides clarification on the LTA provision in STS 4.2.1; clarification on the use of approved methods for LTA campaigns; two regulatory paths for LTA campaigns; guidance on the use ofNEI 96--07, Revision 1, "Guidelines for 10 CFR 50.59 Implementation," with regard to LTAs; and a position that an exemption to the requirements in 10 CFR 50.46 is not needed solely for the insertion of LTAs. Ill. Non-Concurrence An NRC staff member did not agree with some content of the draft letter to the NEI and submitted a nonconcurrence on the draft letter. In accordance with the NRC's nonconcurrence process, NRC management and staff worked to address the staff member's concerns, and documentation of the non-concurrence is available in ADAMS. IV. Backfitting and Issue Finality If finalized, the letter would provide additional clarification on previous staff preliminary statements and positions regarding the use of LTAs made in a letter to NEI dated June 29, 2017. Issuance of the letter, if finalized, would not constitute backfitting as defined in 10 CFR 50.109 (the Backfit Rule) and would not otherwise be inconsistent with the issue finality provisions in 10 CFR part 52. The NRC has no current intention to impose the positions described in the draft letter on holders of current operating licenses or combined licenses. V. Availability of Documents The documents identified in the following table are available to interested persons through one or more of the following methods, as indicated. ADAMS Accession No. Draft letter from U.S. Nuclear Regulatory Commission to Nuclear Energy Institute, Re: Clarification of Regulatory Paths for ML 18100A045 Lead Test Assemblies, dated May 31, 2008. Letter from Dr. Mirela Gavrllas, U.S. Nuclear Regulatory Commission, to Mr. Andrew Mauer, Nuclear Energy Institute, Re: Re- ML 17150A443 sponse to Nuclear Energy Institute Letter Concerning the Regulatory Path for Lead Test Assemblies, dated June 29, 2017. NUREG-1430, Standard Technical Specifications, Babcock and Wilcox Plants, Volume 1, Revision 4.0 .................................... . ML 12100A1n Qffieial Yse ORiy SeAsitive IAteFAal IA#enl'lalieA ENCL0SURE10 Oflieiel l:Jse 01111 1 SeRsiti1J& IRti~Ral il1le1H1alieA 26505 Federal Register/Vol. 83, No. 110/Thursday, June 7, 2018/Notices ADAMS Document Accession No. NUREG-1431, Standard Technical Specifications, Westinghouse Plants, Volume 1, Revision 4.0 ............................................. .. NUREG-1432, Standard Technical Specifications, Combustioo Engineering Plants, Volume 1, Revision 4.0 ............................. . NUREG-1433, Standard Technical Specifications, General Electric BWR/4 Plants, Volume 1, Revision 4.0 ............................. .. NUREG-1434, Standard Technical Specifications, General Electric BWA/6 Plants, Volume 1, Revision 4.0 ............................. .. Letter from Andrew Mauer, Nuclear Energy Institute, to Dr. Mirela Gavrllas, U.S. Nuclear Regulatory Commission, Re: Regulatory Path for Introduction of Lead Test Assemblies In Commercial Nuclear Reactors, dated May 19, 2017. Letter from David M. Gullott, Exelon Generation Company, LLC, to U.S. Nuclear Regulatory Commission, Re: License Amendment Request to Utilize Accident Tolerant Fuel Lead Test Assemblies, Byron Station, Unit 2, dated March 8, 2018. NEI 96-07, Revision 1, Guidelines for 10 CFR 50.59 Implementation, dated November 2000 ................. :................................... . Non-Concurrence Form, dated May 31, 2018 ................................................................................................................................ . The NRC may post materials related to this document, including public comments, on the Federal Rulemaking website at http://www.regulations.gov under Docket ID NRC-2018-0109. The Federal Rulemaking website allows you to receive alerts when changes or additions occur in a docket folder. To subscribe: (1) Navigate to the docket folder (NRC-2018-0109); (2) click the "Sign up for Email Alerts" link; and (3) enter your email address and select how frequently you would like to receive emails (daily, weekly, or monthly). Dated at Rockville, Maryland, this 4th day of June, 2018. For the Nuclear Regulatory Commission. Joseph G. Glitter, Director, Division of Operating Reactor Licensing, Office of Nuclear Reactor Regulation. (FR Doc. 2018-12276 Filed 6~-18; 8:45 am] BILLING CODE 759CHJ1-P are available at www.prc.gov, Docket Nos. MC2018-161, CP2018-231. Elizabeth Reed, Attorney, Corporote and Postal Business Law. [FR Doc. 2018-12255 Filed IHl-18; ·a:45 am) BILLING CODE n1cH2-P ML12100A222 ML12102A165 ML12104A192 ML12104A195 ML180388080 ML18067A431 ML003771157 ML181516016 domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List. DATES: Date of required notice:June 7, 2018. FOR FURTHER INFORMATION CONTACT: POSTAL SERVICE Product Change-Priority Mall Express Negotiated Service Agreement AGENCY: Postal Service™. ACTION: Notice. SUMMARY: The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification . Schedule's Competitive Products List. DATES: Date of required notice: June 7, 2018. Elizabeth Reed, 202-268-3179. SUPPLEMENTARYINFORMATION:The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on June 4, 2018, it filed with the Postal Regulatory Commission a USPS Request to Add Priority Mail Contract 436 to Competitive Product List. Documents are available at www.prc.gov, Docket Nos. MC2018-159, CP2018-229. Elizabeth Reed, Attorney, Corporate and Postal Business Law. [FR Doc. 2018-12253 Filed - 1 8 ; 6:45 am] BIUING CODE nt0-12-P FOR FURTHER INFORMATION CONTACT: POSTAL SERVICE Elizabeth Reed, 202-268-3179. SUPPLEMENTARY INFORMATION: The Product Change-Priority Mail Negotiated Service Agreement AGENCY: Postal ServiceTM. ACTION: Notice. SUMMARY: The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List. DATES: Date of required notice: June 7, 2018. FOR RJRTltER INFORMATION CONTACT: Elizabeth Reed, 202-268-3179. SUPPLEMENTARY INFORMATION: The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on June 4, 2018, it filed with the Postal Regulatory Commission a USPS Request to Add Priority Mail Contract 438 to Competitive Product List. Documents United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on June 4, 2018, it filed with the Postal Regulatory Commission a USPS Request to Add Priority Mail Express Contract 62 to Competitive Product List. Documents are available at www.prc.gov, Docket POSTAL SERVICE Product Change-Priority Mall Negotiated Service Agreement AGENCY: Postal Service™. ACTION: Notice. (FR Doc. 2018-12252 Filed - 1 8 ; 8:45 em] SUMMARY: The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List. 81UIHG CODE n10-12-P DATES: Nos. MC2018-158, CP2016-228. Elizabeth Reed, Attorney, Corporate and Postal Business Law. Date of required notice: June 7, 2018. POSTAL SERVICE Product Change-Priority Mall Negotiated Service Agreement AGENCY: Postal Service™. ACTION: Notice. ----------------SUMMARY: The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a O#ieiel l:Jee 0fllJ SeF1eiti•1e IRteFFl81 IRJBFffletieA FOR FURTHER INFORMATION CONTACT: Elizabeth Reed, 202-268-3179. SUPPLEMENTARYINFORMATION:The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on June 4, 2018, it filed with the Postal Regulatory Commission a USPS Request to Add Priority Mail Contract 437 to Competitive Product List. Documents ENCL0SURE10 Ofhilil I lie ORiy Ser,sili:,•e IAterAal IRf.Q~RClatioi:i Markley, Michael From: Sent - Thursday, April 12, 2018 9:39 AM To: Cc: Subject: RE: Draft LTA Letterto NEI , This is just a quick look for me a this so I am providing my first impressions. I may have others or refine the provided should I have the opportunity. It is apparent that individuals unfamiliar with licensing are once again the author of a document providing a licensing perspective. For the following reasons, I recommend that DORL not concur on this document: 1] TS Interpretation - In TS 4.2.1 this letter suggests that lead test assemblies are not bound by the entire stated requirement. A review of 10 CFR 50.36 nor the applicable rules for applying the TS in Section 1.0 to any of the generic NUREG 143x series, do not suggest nor support this interpretation. Additionally it should be noted that originally all reload cores were review and approved by the NRC staff. Sometime in the 1980's (See GL 88-16), I believe, a means to allow the NRC staff to not have review each core, at the time, the types of fuel being used were basically consistent from reload to reload was developed and later reflected in requirements. The requirements intended for different materials, configurations, and other differences are intended to be explicitly reviewed by the NRC staff. 2] 10 CFR 50.59 Paths - The proposed guidance here seems to inappropriately indicate that an evaluation under 10 CFR 50.59 is in one case on what the licensee "determines" and the other on what the licensee has actually written. As discussed in the statement of consideration (SOC) to the rule for 10 CFR 50.59: If a modification to that (non-described) component could affect any SSC design function or performance requirements that are described, that modification affects the design function, and thus is a change as defined by§ 50.59(a) and thus requires evaluation under§ 50.59. It should be noted that the standard is "affect" not "be less conservative than." There are other discussions throughout the SOC, that I believe contradict the selected portions of endorsed guidance presented in the letter. Given that the rule and the SOC are reviewed and approved by the Commission, I find the selective use of industry guidance to not be persuasive. As this document constitutes more than just a technical specification interpretation, by Section 1.23 of Title 10 to the Code of Federal Regulations (10 CFR) and 10 CFR 50.3, I believe a no legal objection (nlo) is not appropriate, as interpretations have to actually be issued by the General Counsel. To this end, I believe that Paths 1 and 2 suggest positions that are inconsistent with the stated and published intent of the rule, and is therefore inconsistent with a known and established standard. A change as suggested should be not be arbitrarily established in a letter to an industry group, which omits the normal Management Directive 8.18 instruction regarding generic communications, but be entered into the proper process for issuance of a generic communication through a regulatory guide, generic letter, or bulletin. Additionally, given this new/inconsistent interpretation additional review should be performed to determine whether it constitutes a rule, require public input and feedback, and higher level vetting and approval. In conclusion, given that this document appears to present new and/or contrary interpretations of existing NRC requirements, I believe that it is inappropriate to be issued in its current form. Therefore, from a process perspective, this document should not have DORL's concurrence. Going forward these interpretations should be issued under the proper signature authority, reviewed and concurred upon by the General Counsel, possibly issued publicly in the form of a generic communication or a regulatory guide, and follow the applicable OUi\:ial I lea Only Seosibve Internal lntocmation ENCLOSURE11 Offieial Use 0Aly SeRsiti'r& IAt&rAal IRformation laws regarding proper Congressional and public interaction (i.e. Congressional Review Act and Administrative Procedures Act) and feedback. - Thanks! Senior Project Manager, Knowledge Management/Knowledge Transfer - Infrastructure Special Projects and Process Branch (LSPB) Division of Operating Reactor Licensing Office of Nuclear Reactor Regulation Telephone: Fax: From: Sent: Wednesday, April 11, 2018 3:14 PM To: Cc: Subject: FW: Draft LTA Letter to NEI Hi BCs, This LTA memo was just put into concurrence this week and we are requesting division concurrence by the 161h. It was sent to the LTA working group, however w i t h - retirement DORL does not currently have a representative on the WG. We thought it would be a good idea to share the document with you and invite your or your staff to provide comments for consideration as DORL prepares to concur. Thanks very much. The document is in ADAMS at 0ffieiel Use ORiy eeReKive IRieFRal IAfeFFRalien ENCL0SURE11 Official Use ORiy S&R&ithJe IRterRal IRfQFR:litiQR M. Markley 2 not a viable path for implementing the Hatch Nuclear Power Plants, Units 1 and 2 (Hatch) LTA program. In addition, you contend that the Hatch LTAs (chromium coated zircaloy and FeAICr alloy) would trigger the requirement for an amendment under 10 CFR 50.59 (c)(2)(vii) and (c)(2)(viii), as well as exemptions to the 10 CFR 50.46 regulation. Furthermore, you contend there is an urgent safety issue regarding the loading of the LTAs at Hatch, as the regulatory acceptability for LTAs would rely on regional inspectors who lack the technical expertise and programs to evaluate these first-of-a-kind materials. The DPO Panel performed its review by conducting an interview with you, and established a Summary of Issues (SOI). Following the meeting, the DPO panel requested your review of the SOI, after which, you provided a revised and final SOI to the Panel. The DPO panel reviewed many relevant documents to gain historical programmatic perspectives. The DPO panel also interviewed a number of staff members. In addition, the Panel reviewed a number of documents provided by you as well as by interviewed staff members. In its June 18, 2018, report (DPO Panel Report}, the Panel provides the list of documents reviewed and the interviews conducted. In summary, your final SOI is as follows: 1. NRC management and staff appears to have lost its objectivity and exhibited severe mismanagement in development of a licensing strategy for accident tolerant fuel. Although this mismanagement is most evident in the development of a "no licensing strategy" for lead test assemblies, the loss of objectivity is evident at all levels of the NRC. 2. Without consult of licensing experts in the Office of Nuclear Reactor Regulation's (NRR) Division of Operating Reactor Licensing (DORL), 1O CFR 50.59 experts in NRR's Division of Inspection and Regional Support (DIRS) or NRC Regional Offices, staff in DSS developed incorrect regulatory position(s) in its presentation on ATF at the 2017 Regulatory Information Conference, June 29, 2017, letter-response to NEI, and carried this forward into its October 25, 2017, position paper to the Commission. 3. DSS letter-response dated June 29, 2017, is incorrect in the following areas: (1) It provides an incorrect reading of the TS for LTAs, as the only relaxation is representative testing, (2) All TS must be met, as written, in plain language, (3) All provisions of TS 4.2.1 have to be met (Zircaloy or ZIRLO cladding, U02 fuel, and NRC approved codes and methods), and (4) the regulatory history is more consistent than asserted concerning amendments and exemptions, and limiting number and locations does not obviate the need to meet all TS requirements. 4. NRR position paper dated October 25, 2017, is incorrect in stating the following: (1) No exemption is needed for non-zirconium fuel designs, (2) No license amendment request (LAR) is needed under TS 4.2.1 (when Improved TS language is used}, and (3) 1O CFR 50.59 is a potentially viable path for implementing the Hatch LTA program. 5. It is unacceptable to have a regulatory gap and no emergency core cooling system (ECCS) acceptance criteria if it can be argued that 1O CFR 50.46 does not apply as a means to meet General Design Criterion (GDC) 35 or associated plant-specific design criteria. Official Use 01.ly Oe11sitiwe lnterM&I IRfQr1+1atioR Offieiel U!e Only M. Markley Se, 1sitive h1te11 ,al Ii 1fo1111atio11 3 6. NRR responses to Commissioner Baran dated November 14, 2017, are inaccurate and misleading with respect to: (1) "cherry picking" licensing action excerpts that the biased position on generic letter (GL) 90-02 (Supplement 1), TS, and 10 CFR 50.59, (2) the extent to which safety culture was maintained in the working group, and (3) the outcome of the process was contrived to support the letter dated June 29, 2017. Licensing and 10 CFR 50.59 subject matter experts were not respected and an open-collaborative work environment was not maintained. 7. The NRC has no docketed basis to conclude the following issues will not affect ATF fuel integrity and, thus, safety of the commercial operating reactors: ( 1) thermal conductivity degradation, fission gap behavior, and swelling of non-U02 fuels (e.g., U3Si2) at lightwater reactor temperatures, (2) mechanical behavior of smaller pellet designs, (3) possible nonlinear behavior (creep, hardening, burst behavior) of FeCrAI cladding, (4) variations in cladding thickness, and (5) effects of coatings on cladding stress, strain, and displacement. The NRC is remiss in its safety mission by dismissing these issues for LTAs based largely on "a limited number of lead test assemblies that have not completed representative testing may be placed in non-limiting core regions." Regardless of numbers or locations, plant-specific licensing actions would be needed for LTAs with enrichment >5% U-235 (Uranium-235), cladding materials other than Zircaloy or ZIRLO, and fuels other than U02. 8. Licensees are expected to meet all the provisions of the TS, and not choose which ones apply in favorable circumstance. The June 29, 2017, letter raises a policy issue in its partitioning of the LTA provision of TS 4.2.1, has generic implications on the entire body of TS requirements, and does not follow the Part 9900 guidance for developing TS interpretations. 9. The June 29, 2017, letter also presents an interpretation of the regulations in 10 CFR 50.46 without a regulatory approval by the Office of the General Counsel, as prescribed by the regulations in 10 CFR 1.23(c) and 10 CFR 50.3. 10. The suggested use of "unapproved analytical codes and methods" for LTAs is in direct contradiction to NRC/NRR licensing procedures for acceptance review (LIC-109), amendments (LIC-101 ), and topical reports (LIC-500) and TS 4.2.1. During its review, the DPO panel was aware of and reviewed the new Agency draft letter to NEI for the clarification of regulatory paths for lead test assemblies. The DPO Panel came to the following overall conclusions: • The two possible interpretations of TS 4.2.1 are at the core of the disagreements that ultimately resulted in this DPO. • The Panel finds that the initial interpretation of TS 4.2.1 (from the time of its introduction and first use) was that lead test assemblies introducing new cladding material were to be handled with both license amendments and exemptions from 1O CFR 50.46. However, over the years, variations and inconsistencies in approach have been accepted by the NRC staff. In the end, the Panel finds that both interpretations of TS 4.2.1 are legally correct, thus the choice of interpretation is a policy issue that must be decided at the highest levels of NRC management. OHieiel Use 01'11) Sel'lsiliYe IAlerAal IAfertl'lalian Official Use 011ly - Se11siti.e lr,terflel IRfeFR'latieR M. Markley 4 • While past licensing history for LTAs has been varied and inconsistent, the Panel found precedents for LTA insertion via exemption requests followed by 50.59, LARs, or exemptions in combination with LARs, but the Panel could not verify whether the 50.59 was used as a standalone process to insert LTAs into a US power plant core. • The NRC's policy on the use of 50.59 to insert LTAs in reactor cores needs to be decided and clearly communicated. • The Panel found that communications broke down between the parties on the different sides of the LTA licensing issue at the core of this DPO. • The Panel found that DSS staff moved forward with communicating their position on LTA licensing to industry without prior vetting through the licensing divisions DORL and DIRS. DSS should have coordinated with DORL and DIRS in establishing their LTA licensing strategy, and should have done so before communicating their position publicly. • An affirmative regulatory action such as issuance of orders or a new administrative section of TS for LTAs/ATF instead of interpretations to justify no regulatory action would have supported more consistency and predictability for licensees and vendors. Such actions could, for example, have acknowledged the limited radiological consequences from failures of lead test assemblies and used acceptance criteria other than the traditional design basis limits established for fuel , cladding. The approach defined in the June 29, 2017, letter will likely result in a variety of approaches since it is reliant on individual interpretations by different licensees and vendors. Furthermore, the Panel made the following recommendations: 1. The NRC's policy on the licensing strategy to insert LTAs in reactor cores needs to be decided and clearly communicated to all stakeholders. 2. The NRC should clarify the interpretation of TS 4.2.1 that constitutes the official NRC interpretation of TS 4.2.1, and should clarify what constitutes 'limited numbers' of fuel rods as well as what is meant by 'nonlimiting locations'. 3. The technical experts and licensing experts should always communicate with each other and follow a consistent established process prior to announcing licensing strategies publicly or communicating these strategies to industry parties. In his memorandum to you, dated July 11, 2018 (DPO Decision), the OD noted that significant staff effort has occurred over the last year, across several NRR divisions, to provide improved guidance regarding LTA campaigns. In order to make a decision regarding your DPO, the OD reviewed your DPO submittal and the DPO Panel Report. In finalizing the DPO decision, the OD considered the additional ongoing NRC staff effort to clarify the issues and both answer concerns and provide clear expectations to all stakeholders. After considering all the information available in this regard, the OD concluded that the DPO Panel's conclusions and recommendations were appropriate. Offieiel l:Jee ORiy i&R&itinra IRbURal IRfnrrnation etficial Use Only Set11siti,e IAterRal IRfe~ati&R M. Markley 5 The OD concluded that the first two recommendations made by the Panel would be dispositioned by the revised letter to industry once it has been informed by the public comment process and updated accordingly. The OD explained the rationale for choosing a letter to convey this issue, stating that 1) a letter was the most efficient way to provide clarity in a timely manner and could be coordinated with the associated Federal Register Notice to garner additional public comment, and 2) the information provided in the letter could then be transferred to another document such as a Regulatory Guide. Furthermore, the OD assigned DIRS to evaluate whether a more enduring guidance document should be issued. Notably, the OD agreed with both you and the Panel that more coordination should have occurred within NRR in construct of the June 29, 2017, letter. This issue was the basis for the Panel's third recommendation regarding improved communication between technical and licensing experts. Regarding this recommendation, the OD directed the NRR Leadership Team Chair to meet with the NRR Executive Team to discuss the need for enhanced communication and the consistent use of established processes. As a result of this direction, the DORL Director is now a representative of the A TF Steering Committee and a DORL staff member is part of the A TF Working Group. Lastly, the OD tasked DIRS to coordinate NRR resources to assist regional reviews of 50.59 for LTA, as appropriate. In the DPO appeal you submitted on August 1, 2018, you raised concerns with (1) the DPO process implementation, and (2) perceived bias and prejudice affecting the results of both the immediate public health and safety issue evaluation, and the DPO panel findings. In your discussion of the DPO process you identify the following key themes of the appeal: ( 1) thorough and impartial review of the DPO, (2) the immediate public health and safety issue evaluation, and (3) the DPO panel process and response. Regarding your concerns of shortcomings in impartiality and thoroughness of the DPO process implementation, you provided examples to support your concerns. Your appeal also discussed some confusion surrounding the process for handling an assertion of an "immediate safety issue" when such an assertion is contained within a DPO. Included in this discussion, your appeal also contends that the evaluation of an immediate safety issue performed was lacking adequate detail. In an August 14, 2018, statement of views regarding the DPO Appeal, the OD concluded that he continues to support the evaluation performed by the staff in response to the immediate safety concern. The OD stated that NRC is a learning organization, and as such, should continue to assess where we can more efficiently and effectively perform our regulatory oversight. The OD also noted that process issues and assertions of bias and prejudice have been referred to the Office of Inspector General. Furthermore, he noted that DPO process concerns can be considered by the Office of Enforcement since they are currently reviewing and considering improvements to the DPO process. EXECUTIVE DIRECTOR FOR OPERATIONS REVIEW AND DECISION In reviewing your appeal, I considered the DPO-related documents referenced above, as well as NRC guidance and other documents related to the subject at hand, including: (1) (2) (3) Gavrilas, M., letter to Andrew Mauer (NEI): "Response to Nuclear Energy Institute Letter Concerning the Regulatory Path for Lead Test Assemblies," June 29, 2017, (ADAMS Accession No. ML 17150A443) Generic Letter 90-02, "Alternative Requirements for Fuel Assemblies in Design Features Section of Technical Specifications," U.S. NRC, February 1, 1990 Supplement 1 to Generic Letter 90-02, "Alternative Requirements for Fuel Assemblies in Design Features Section of Technical Specifications," July 31, 1992 ome1a1 Use o, ily Sensiti,e IAterAel IAfel=R=latior=i 4-ffi&ial I lee ORiy &iiR&iti::e IRtiiFRiil 1Rf8FFR8ti8R M. Markley (4) (5) (6) (7) (8) (9) (10) (11) (12) (13) (14) 6 NEI 96-07, Revision 1, "Guidelines for 10 CFR 50.59 Implementation," Nuclear Energy Institute, November 2000, ADAMS Accession No. ML003771157 Regulatory Guide 1.187, "Guidance for Implementation of 10 CFR 50.59, Changes, Tests, and Experiments," November 2000, ADAMS Accession No. ML003759710 NUREG-1431, Revision 4.0, "Standard Technical Specifications, Westinghouse Plants, Revision 4.0," Volume 1, Specifications, U.S. NRC, April 2012 NUREG-1433, Revision 4.0, "Standard Technical Specifications, General Electric Plants (BWR/4) Plants," Volume 1, Specifications, U.S. NRC, April 2012 LIC-504, Revision 4, "Integrated Risk-Informed Decision-Making Process for Emergent Issues," U.S. NRC, June 2, 2014 Issuance of Amendments - Edwin I. Hatch Nuclear Plant, Units 1 and 2 [Hatch Safety Evaluation for Conversion to STS], Amendment Nos. 195 and 135, ADAMS Accession Nos. ML012990382 (Amendment), ML013040412 and ML013060428 (Safety Evaluation), March 3, 1995 Edwin I. Hatch Nuclear Plant Request to Revise Technical Specifications Conversion to Improved Standard Technical Specifications Consistent with NUREG 1433, Georgia Power Company, February 25, 1994, ADAMS Legacy Library No. 9403090325 Amendment No. 69 to Facility Operating License No. NPF-58- Perry Nuclear Power Plant, Unit No. 1, ADAMS Accession No. ML021830716, June 23, 1995 Issuance of Amendment No. 120 to Facility Operating License No. NPF-29 Grand Gulf Nuclear Station, Unit 1, February 2, 1995, ADAMS Legacy Library No. 9503020023 Holian, B.E., draft letter to Pamela Cowan (NEI): "Clarification of Regulatory Approaches for Lead Test Assemblies," May 25, 2018, ADAMS Accession No. ML 181 OOA045 Non-concurrence Related to Federal Register Notice of Availability for Comment of Letter Titled "Clarification of Regulatory Approaches for Lead Test Assemblies," from Brian Holian, NRC, to Pamela Cowan, NEI" NCP-2018-003, May 31, 2018, I met with you on February 7, 2019, to discuss the DPO and DPO Appeal, and to obtain information related to your concerns as well as feedback on my preliminary conclusions. At my request, an Executive Technical Assistant (ETA) in the Office of the Executive Director for Operations (OEDO) reviewed historical documents, participated in the previously-mentioned meeting, met with several cognizant staff and managers, and provided independent insights that supported my decision-making. The OEDO ETA and I have also reviewed the draft letter to NEI regarding the clarification of the regulatory path for LTAs as well as the draft NRC response to public comm~nt.s on the draft letter. ',, ', I found your DPO a·nd DPO appeal, as well as our meeting on this subject to be particularly thought-provoking, and I commend you for your critical thinking, diverse perspectives, and honest feedback. This motivation is consistent with the Principles of Good Regulation, namely the principles of Clarity, Efficiency, and Reliability, and your willingness to raise these concerns is essential to our open and collaborative work environment. In a time when the Agency is looking for new, innovative, and transformative ways to achieve our mission, I would like to express my appreciation for your questioning attitude. I also commend you for your desire to ensure that licensees perform in a manner that engenders the trust of the community and provides reasonable assurance that public health and safety will be maintained. Offieiel Use 01'11~ Sel'leiti,e ll'tterRel lRferFRetiel'I M. Markley ornc,a; ass onty se11s1t1,e li1te11 al lAf&fiAilatigD 7 Considering the information I obtained during my review, I have determined that it is appropriate to uphold the decision made by the OD as further informed by the resolution of public comments in finalizing the draft guidance; in addition, I believe there are further opportunities to exercise the Principles of Good Regulation by tasking additional actions in relation to your DPO and DPO appeal and making note of ongoing processes or activities that correlate to your concerns. I have summarized the concerns and resultant conclusions from my analysis in the sections below. 1. Immediate Public Health and Safety Issue Evaluation In your DPO appeal, you take exception to an e-mail response from the DPO Program Manager who stated that the immediate safety determination was not part of the DPO resolution because Hatch was getting ready to load LTAs at the time you filed the DPO and an evaluation at the immediate safety concern was needed prior to the full review of your DPO. You also questioned who the signature authority for the evaluation was and stated that you did not receive a response. Further, in your DPO appeal, you take exception to the manner and timing in which the disposition of the immediate safety assertion was communicated back to you (in an e-mail). I agree with you that the immediate safety concern resolution is part of the DPO process; nevertheless, due to its potential need for an immediate enforcement action, this assertion must be resolved on an expedited time frame. From my review of the e-mails and documention included in the DPO appeal package, it does appear that the documentation surrounding the response to your assertion of an urgent safety issue was lacking a clear process. In studying the process in MD 10.159, I believe additional guidance is needed to specifically address the handling of assertions of "immediate or urgent safety concerns." Processes that require investigation and thorough review, such as the DPO process, may at times, need to disposition more urgent questions of immediate safety issues. Futher guidance should be developed to describe how these more immediate issues are processed, documented, and communicated. In response to the Government Accountability Office recommendations regarding lessons learned from the Davis-Besse reactor vessel head degradation event, the NRC developed and issued NRR Office Instruction, LIC-504, "Integrated Risk-Informed Decision-Making Process for Emergent Issues." Section 4.2, "Entering LIC-504" states" ... LIC-504 may be used to supplement other processes, by providing a decision-making structure and formal documentation. The items to be considered, report formats, and content suggestions provided in this office instruction should be taken as guidance rather than as procedural requirements." While LIC-504 was developed in response to an event at a nuclear power plant, I believe its elements can be applied more broadly. I also note that LIC-504 is the most suitable guidance available for assessing issues of possible immediate safety. Therefore, I am tasking the Office of Enforcement (OE) to consider the elements of LIC-504 in their ongoing differing views program (DVP) improvement project, with particular attention to the steps in Figure 2: RiskInformed Decision Making Process. Furthermore, I am considering ways to broaden the staffs awareness of LIC-504 for the purposes of allegations and 10 CFR 2.206 petitions, as well as DPOs. Aside from the process issues discussed above, I reviewed Enclosure 4 of the DPO package entitled "Response to Assertion of Urgent Safety Concern at Hatch." I agree with the OD in his "Statement of Views" that all of the technical and safety concerns raised in your DPO are satifactorily addressed in this evaluation for the Hatch LTA campaign. The evaluation does address the specifics and conservatively bounds the LTA campaign at Hatch. I also note that Official tJse e,111 801:sitiuc ll:ten:al lnf1JMatioR etfficial Use 81 :I; M. Markley 811 1l e Int reel lrformaticR 8 the DPO Panel report states on page 13 " ... the Panel found that there is no technical basis that shows that the safety of the people and the environment would be compromised by the insertion of LTA." However, Enclosure 4 of the DPO package does not appear to be a formal NRC document and does not refer back to the licensee's licensing basis documents. I believe these shortcomings can be addressed in the future by incorporating, by reference, the elements of LIC-504, Section 4.2.1 related to assessing immediate safety concerns that have been raised in the DPO process. 2. Application of Technical Specification Requirements In your DPO and DPO appeal, you take exception to the Office of General Council's (OGC) determination regarding the interpretation of Standard Technical Specification (STS) 4.2.1, "Fuel Assemblies." The standard language in this specification is: The reactor shall contain [# of fuel assemblies] fuel assemblies. Each assembly shall consist of a matrix of [Zircaloy or ZIRLO] fuel rods with an initial composition of natural or slightly enriched uranium dioxide (U02) as fuel material. Limited substitutions of zirconium alloy or stainless steel filler rods for fuel rods, in accordance with approved applications of fuel rod configurations, may be used. Fuel assemblies shall be limited to those fuel designs that have been analyzed with applicable NRC staff approved coqes and methods, and shown by tests or analyses to comply with all fuel safety design , bases. A limited number of lead test assemblies that have not completed representative testing may be placed in nonlimiting core regions. The two interpretations that exist are the basis for disagreements between staff as well as your DPO. The first interpretation is that the last sentence supplements the preceding sentences to provide licensees limited flexibility in inserting lead test assemblies including those with different properties than those previously approved by the NRC without requesting a license amendment. The second interpretation is that the last sentence provides relief only from the testing requirements o\the preceding sentence and that the lead test assemblies are either required to comply with the ol~dding and fuel material descriptions of the first sentence and the analyses requirements of the, third sentence, or a license amendment is needed to introduce the test assemblies. In researching this issue, the DPO Panel found that the initial interpretation of STS 4.2.1 (from the time of its introduction and first use) was that lead test assemblies introducing new cladding materials were to be handled with both license amendments and exemptions from 1O CFR 50.46. Over the years, variations and inconsistencies in approach have been accepted by the NRC staff. The DPO panel confirmed with OGC that the TS 4.2.1 may be interpreted in several ways that are all legally and technically correct. This concern was also raised in the non-concurrence process (NCP)-2018-003, "Non-concurrence Related to Federal Register Notice of Availability for Comment of Letter Titled "Clarification of Regulatory Approaches for Lead Test Assemblies." The response to the non-concurrence dated May 31, 2018, stated that the positions contained in the draft letter do not necessarily represent a new interpretation of STS 4.2.1, as many licensees have inserted LTAs into their reactors without the need for an amendment. The response also provides a partial list of plants that inserted LTAs with new clad material without requesting an amendment. My review of the NRC staff's Safety Evaluation (SE) for Hatch's transition from custom TS to STS, dated March 3, 1995, Section 2.4.0.2, "Less Restrictive Requirements," supports the ornclal ~sc 8: :ly 861 nit" : Int rel lnfos:r.:Ratign Official Use 9AI) M. Markley iORGiti••& IRl&rRal IRformatiao 9 interpretation that the last sentence of STS 4.2.1 provides limited authority beyond the specific requirements of the preceding sentences. It states: "The licensee ... proposed the following requirement that is less restrictive than requirements given in the CTS [Custom Technical Specifications]." Improved TS 4.2.1, "Fuel Assemblies," contains the following new provision, consistent with the STS: "A limited number of lead test assemblies that have not completed representative testing may be placed in nonlimiting core regions." This allowance gives recognition to a specific kind of special test with lead test assemblies that may be performed. This is intended to avoid confusion regarding whether a TS change is required to conduct this test." This section of the Hatch SE further states: "The requirements of 10 CFR 50.59 regarding the conduct of special tests remain applicable, and are sufficient to ensure that a limited number of lead test assemblies placed in nonlimiting core regions will not have a significant impact on safety. This change is also in conformance with Supplement 1 of Generic Letter 90-02, "Alternative Requirements for Fuel Assemblies in the Design Features Section of Technical Specifications," July 31, 1992." As noted in the DPO Panel report, the Panel reviewed records related to the development of the current language in Supplement 1 to Generic Letter 90-02. There was not a definitive discussion of lead test assemblies, because much of the history related to the generic letter and its supplement concerned reconstitution of assemblies. The response to NCP 2018-003 provides a more in-depth discussion of the history of the STS. In January 1991, the first version of NUREG-1431, "Standard Technical Specifications: Westinghouse Plants," was published in draft form for public comment and contained the "LTA provision": "A limited number of lead test assemblies that have not completed representative testing may be placed in nonlimiting core regions." The same version of NUREG-1431 remains in use today. Publication of this paragraph occurred after GL 90-02 (February 1, 1990), but before GL 90-02 Supplement 1 (July 31, 1992). Moreover, GL 90-02 Supplement 1 references the draft STS when it discusses the LTA provision. The GL supplement did not introduce any changes to the STS, but instead quoted the STS that the NRC had previously published. Neither the GL nor its supplement provided any specific discussion of LTAs. The draft STS sent to NUMARC 1 in 1990 contained allowances for reconstituted fuel, but not for LTAs, indicating that they are in fact two different types of fuel assemblies. In order to become reconstituted fuel, a fuel assembly must be in the reactor and contain rods that are found to be leaking or are determined to be probable sources of future leakage and those rods are then replaced. LTAs are fuel assemblies that 1 That was the name of NEI back then. effieiel Wu 'iil111l5 ii111111it' I IAIUAII I f r1onli11D Oftieial , lee ORiy Sersithce lotecoal lotocrnation M. Markley 10 contain new design features or materials for which additional data may be needed to support batch loading. My review of the NRC staff's Hatch SE for STS conversion, in concert with a markup of the licensee's custom TS 2 , tends to support that the last sentence in STS 4.2.1 was specifically added as a new provision to the Hatch TS to provide the licensee flexibility within bounds. The NRC staff's Hatch SE stated that this new provision was added as a less restrictive requirement. Furthermore, the Hatch custom TS at the time was similar to the STS 4.2.1 provision in most other respects, and any other changes were noted in the Hatch SE as administrative changes. In addition, the Hatch SE used the term LTA without restrictions to its definition. Also, though the wording in the Hatch SE is plant-specific, a limited search by NRC staff found several other NRC staff SEs for STS conversions from the same era, for example, those for Grand Gulf and Perry, that contain similar justifications for the "LTA provision," both stating: 'This allowance gives recognition to a specific kind of special test with lead test assemblies that may be performed. This is intended to avoid confusion regarding whether a TS change is required to conduct this test." Furthermore, the remainder of the supporting evaluation for these SEs are different but reach the same conclusion that the changes provide reasonable assurance of public health and safety. In fact, Hatch, Unit 2, has inserted LTAs with new clad material without requesting a license amendment several times including 2008 (ADAMS Accession No. ML081230661), 2010 (ADAMS Accession No. ML091170253), 2014 (ADAMS Accession Nos. ML 13115A480 and ML 13115A473), and 2018 (ADAMS Accession Nos. ML 18012A057,-058,-059). Notably, since 2008, no TS amendments have been requested by licensees for LTA campaigns. In our meeting on February 7, 2019, you expressed a concern that if TS 4.2.1 is interpreted too broadly, licensees may be able to load fuel in reactors with greater than 5% enrichment without prior NRC approval. This concern is addressed by NRC's regulation in 50.68(b)(7) which states: "The maximum nominal U-235 enrichment of the fresh fuel assemblies is limited to five (5.0) percent by weight." Therefore, an exemption to the regulations would be needed for procurement and receipt of LTAs with enrichment greater than 5.0%. Furthermore, STS have enrichment limits slightly more conservative than the regulatory limit in 50.68(b)(7). For example, Section 4.3.1.1 of NUREG-1431, the Standard Technical Specifications for Westinghouse designed plants states: "The spent fuel storage racks are designed and shall be maintained with: a. fuel assemblies having a maximum U-235 enrichment of (4.5] weight percent, ... " Therefore, in addition to an exemption from the regulations, most licensees would also need a license amendment to increase fuel enrichment. The Georgia Power Company's license amendment application for the Hatch Improved STS, dated February 25, 1995, included a markup of the Hatch Custom TS. 2 Sffieial •&11 QAI) fi'oositit:c loteroal lrfncroafiM Official I Isa Drl\r Secsithre lrteroal lofocrnafion M. Markley 11 3. 10 CFR 50.59 Evaluations 1O CFR 50.59 is a change control mechanism to allow licensees to manage their facilities while ensuring the appropriate level of NRC involvement needed to maintain reasonable assurance of adequate protection of public health and safety. The regulation in 10 CFR 50.59 provides authority for licensees to implement changes, tests, and experiments without prior approval NRC approval provided that two considerations are met. The first consideration is whether a change to the technical specifications incorporated in the license is not required. For the reasons discussed above, I conclude that a licensee may conclude within reasonable bounds, that an LTA campaign may be implemented without requiring a change to its technical specifications. The second consideration involves eight specified criteria against which the licensee must evaluate the effects of the change under consideration. You expressed a view in the DPO that the criteria in 10 CFR 50.59 (c)(2)(vii) or (c)(2)(viii) could never be satisfied to support a conclusion that use of both cases of Hatch LTAs (chromium coated zircaloy and FeCrAI alloy) may be implemented without prior NRC approval through a license amendment. The criterion in 10 CFR 50.59(c)(2)(vii) states that a licensee shall obtain a license amendment prior to implementing a change, test, or experiment that would "result in a design basis limit for a fission product barrier as described in the FSAR (as updated) being exceeded or altered." The NRC staff endorsed NEI 96-07, Revision 1, "Guidelines for 10 CFR 50.59 Implementation," in Regulatory Guide 1.187, "Guidance for Implementation of 10 CFR 50.59, Changes, Tests, and Experiments," which states that NEI 96-07, Revision 1, provides methods that are acceptable to the NRC staff for complying with the provisions of 10 CFR 50.59. NEI 96-07, Revision 1, Section 4.3.7 states, in part, that "[i]f an engineering evaluation demonstrates that the analysis presented in the UFSAR [updated final safety analysis report) remains bounding, then the licensee may not meet this criterion" (and therefore may not require a license amendment because of this criterion). A licensee would be expected to demonstrate compliance with the STS LTA provision which restricts LTAs to a "limited number" in "nonlimiting core regions," with an evaluation using analytical codes and methods that reflect well-established engineering practices, and by conservatively addressing uncertainties in input parameters and models using the current state of knowledge and all available data to the extent practical. Historically, LTA campaigns have ranged from a few rods within a single assembly to eight fuel assemblies, depending on the nature of the design and the degree of prior characterization of the LTA's performance. Regarding the design, U.S. power reactor cores range in size from 121 to 800 fuel assemblies. "Degree of characterization" refers to the amount and quality of the data that support the expected material or design performance. If a licensee's evaluation can confirm that the updated U safety analyses and core operating limits report limits remain applicable and bounding, they could satisfy 10 CFR 50.59(c)(2)(vii) such that prior NRC approval is not required. The criterion in 10 CFR 50.59(c)(2)(viii) provides that a licensee shall obtain a license amendment prior to implementing a change, test, or experiment that would "result in a departure from a method of evaluation described in the FSAR (as updated) used in establishing the design bases or in the safety analyses." NEI 96-07, Revision 1, Section 4.3.8.1 states, in part; The definition of "departure ... " provides licensees with the flexibility to make changes under 1O CFR 50.59 to methods of evaluation whose results are "conservative" or that Offiei11l l:Jse ORiy SeR&itiva lr:itarr:ial IRfgi!i:;Jatigr:i Offieiel Use 01"11) M. Markley Sertsiti\e IAl8FABl 1Af8Fffl8tieA 12 are not important with respect to the demonstrations of performance that the analyses provide. Changes to elements of analysis methods that yield conservative results, or results that are essentially the same, would not be departures from approved methods. To meet the TS LTA provision of "nonlimiting core region" a licensee should perform an evaluation that demonstrates that the LTAs' core location, combined with their operating parameters (e.g., power density}, ensures that the new design features maintain more thermal and mechanical margin to their respective design, performance, and safety limits relative to the co-resident fuel during normal operation, anticipated operational occurrences, and postulated accidents. As such, the performance of the LTAs will not impact the ability of safety-related structures, systems, and components to perform their intended safety functions. LTAs inserted in nonlimiting locations will, by definition, be within the bounds of the core operating limits. Therefore, the method of evaluation used in establishing the design basis would remain the same. In your DPO, you also express a concern that NRC is placing the regulatory burden on the regional inspection program that lacks the technical expertise and programs to evaluate these first-of-a-kind materials. Further, in your DPO Appeal, you raised concerns that the DPO Panel did not examine the Reactor Oversight Process (ROP) evaluation of LTAs, and Hatch in particular, in its consideration of 10 CFR 50.59. I agree with you that the NRC Regions may need support from the NRC Headquarters technical experts to conduct inspections of LTA 10 CFR 50.59 evaluations. Therefore, I am directing NRR, in a separate tasking memorandum, to ensure the inspections of licensee ATF LTA 50.59 evaluations receive the appropriate Headquarters support and that documentation is in accordance with the ROP. After weighing the resource implications against the need to demonstrate effective coordination between the Regions and Headquarters staff in these reviews, I am also directing that NRR, in concert with affected Regions, ensures that two 10 CFR 50.59 evaluations for ATF LTA campaigns be inspected by midyear 2020 and documented in quarterly reports. In addition, I am requesting a briefing of the results. 4. Exemptions to the Regulations In your DPO you contend that an exemption to the regulations would be required for non-zirconium fuel designs, and that both cases of Hatch LTAs would trigger exemptions to 10 CFR 50.46, "Acceptance criteria for emergency core cooling systems for light-water nuclear power reactors," as a means to meet 1O CFR Part 50 Appendix A, "General Design Criteria for Nuclear Power Plants," 35, "Emergency Core Cooling." 10 CFR 50.46 states, in relevant part: (a)(1 )(i) Each boiling or pressurized light-water nuclear power reactor fueled with uranium oxide pellets within cylindrical zircaloy or ZIRLO cladding must be provided with an emergency core cooling system (ECCS) that must be designed so that its calculated cooling performance following postulated loss-of-coolant accidents conforms to the criteria set forth in paragraph (b) of this section. The LTA exemptions that have been issued for 10 CFR 50.46 are unusual in that they provide an exemption to the applicability statement in the rule, rather than an exemption from the rule itself. For example, a plant using MS cladding would typically request an exemption to the 10 CFR 50.46 applicability statement, allowing the application of the acceptance criteria in 10 CFR 50.46(b) (i.e. peak cladding temperature, maximum cladding oxidation, and maximum Offieiel Use 011ly 6e11eiti 11e l11tefAiiil IAfeH¥1atieA Offieial U:,e Orail~ Sensitiwe h1tc11ml lr1fcrr11etiel't 13 M. Markley hydrogen generation) as applicable or bounding for M5. Meeting these criteria would demonstrate compliance with GDC 35. In the case where a limited number of LTAs are inserted into a core for which 1O CFR 50.46 applies, either intrinsically or by exemption, the acceptance criteria of 10 CFR 50.46(b) still apply to the core. I conclude that an exemption is not required to insert the LTAs because a limited number of LTAs inserted in non-limiting core regions will not impact the acceptability of the ECCS for that plant. If a licensee were to determine that the LTAs may impact the ECCS acceptability, then the LTAs would not be considered to fit the limited number and non-limiting core regions provision of the TS, and both an exemption to the regulations and a license amendment may be required. 5. Thorough and Impartial Review In your DPO appeal, you noted several concerns about the DPO process implementation which led you to believe that your DPO failed to receive an impartial review. Your DPO appeal elaborates on concerns you had regarding several conversations and e-mail exchanges with your second-level supervisor. You state that his role in the DPO had a chilling effect. As discussed in the OD's statement of views regarding your appeal, the process and bias and prejudice assertions have been referred to the Office of the Inspector General, and therefore, I will not be addressing those concerns in my response. In your DPO appeal, you expressed a concern that during the DPO process implementation, you objected to the Acting NRR Director serving as the senior official responsible for dispositioning the DPO, as he was a named individual in the DPO. The DPO process is set up for the OD or Regional Administrator (RA) to issue the DPO decision specifically because she/he is the program owner and therefore has the authority for the issues under contention. One objective of the DPO review is to ensure that the cognizant OD or RA has the benefit of diverse perspectives in his or her decision-making. Impartiality in the DPO process is facilitated by confering the responsibility for establishing the DPO panel to the DPO PM who is outside the OD's chain of command. With regard to your specific DPO, I note that the OD, in his decision, followed the recommendations of the DPO Panel. With regard to potential bias of the DPO panel, your DPO appeal also states that you objected to the selection of an NRR Division Director as the Chair of the DPO Panel because of his prior service on differing views panels and your perception of his outcomes on these panels. Further, you note that the selection of an NRR Division Director, who is a direct report of the NRR Office Director, is inconsistent with MD 10.159, Directive Handbook Section E.4 (considerations for appointing DPO panel members) part (a) which states, "The chairperson must be a Senior Executive Service (SES) manager normally from an office other than the office assigned action on the DPO." To explore this concern, my assigned staff member met with the DPO PM to inquire about the chairperson selection for your DPO panel and was informed that the basis for his selection was his knowledge and expertise in this specific technical area. MD 10.159 Section E.4(d) states that a DPO Panel member should have the knowledge and skills necessary to evaluate the DPO. Nevertheless, I agree with you that this selection was not consistent with all considerations in MD 10.159 Section E.4. In the DPO process, impartiality, as well as the appearance of impartially, are important considerations. Therefore, after consultation with the EDO and the Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs, I am tasking OE to change MD 10.159 to include obtaining OEDO approval when deviating from MD 10.159 Section E.4 (a-d). I am directing this change be included as part of the ongoing DVP 0ffieiel Use ORiy Sw, i'I' e I ,le al I 6 , etiorl Offieial Yee ORiy i&R&iti••& 1Rt8J:Ral IRfeF~atiQR M. Markley 14 improvement project changes, which is discuss further in this memo. While this change will improve the process going forward, I acknowledge that it does not address the issue of impartiality or the appearance of impartiality for your DPO. The selection of the panel members for your DPO notwithstanding, I, along with the assigned OEDO ETA, have independently reviewed your DPO, DPO appeal, and case file, as well as the documents referenced above. To further address the question of impartiality of your DPO, my assigned ETA met separately with the member of the DPO panel that you proposed to serve on the panel. The subject of whether bias or partiality had an impact on the collective panel conclusions and recommendations was discussed during this meeting, and the panel member indicated that he did not believe bias was a factor during panel deliberations, discussions or conclusions. The concerns discussed in this section relate to the potential for bias to be introduced through implementation of DPO process. Among your concerns were issues related to potential bias that could exist in the initial DPO decision as a result of having the line organization involved in DPO review, as well as the selection of the Panel Chairperson within the same line organization. Although not initiated as a result of this particular engagement, the NRC's OE enacted a Differing Views Program Improvement Project which assembled a working group to assess the Agency's Non-Concurrence Process and DPO Program. Per the project charter, the working group delivered a set of practical recommendations to Senior Management designed to increase the effectiveness and efficiency of the NCP and the DPO Program. This was accomplished through analysis of existing information combined with information obtained through recurring communications with former program participants, affected line management, the NCP and DPO Program Manager and Program Owner, external counterparts, and other stakeholders as needed. The project was completed in August 2018 and the final DVP improvement project report along with recommendations for improvements were transmitted to the EDO by memorandum dated December 26, 2018 (ADAMS Accession No. ML 18353A832). I will be directing OE by separate memorandum to include the changes to MD 10.159 discussed in this response regarding (1) Section E.4, considerations for appointing DPO panel members, and (2) incorporating by reference, elements of LIC-504 into the DPO process, to their implementation of the DVP Improvement Project. CONCLUSION I want to thank you for bringing your concerns to my attention. Your DPO was thoughtful and sincere. As you know, the NRC relies on employees to raise concerns regarding decisions so that they can be properly considered. Your willingness to raise these concerns demonstrates your dedication to safety, which is a critical pillar of the NRC in achieving its mission. Your feedback on our regulatory processes was in keeping with the Principles of Good Regulation, and I applaud and value your efforts in this regard. I take concerns such as the ones you raised very seriously, and hope that my interactions with you reflect my thorough and objective review of your concerns in making my decision. Several important changes have been made or will be made to our processes that ensure public health and safety as a result of your willingness to participate in this process, and I appreciate the time and energy you spent to bring your concerns forward in this process. Officie.l l:Jsc 01'11) Sel'leiti, e IAt1rn1I h1fer=1tiel'I Offieiel l::Jse Ofll) Geneiti,e lf11tePl'lel l11fe1111ntion 15 M. Markley A summary of this DPO Appeal Decision will be included in the Weekly Information Report posted on the NRC's website to advise interested employees of the outcome. cc: G. Wilson, OE F. Peduzzi, OE G. Figueroa, OE/CRB I. Gifford, OE/CRB D. Solorio, OE/CRB Official Use Onl) SeAeititso lntcrqal lotocA:12tioA Oflieial Use 01'11) Sel'lsitic e h 1ter11al l11Ec 111111iClfl 16 M. Markley SUBJECT: DIFFERING PROFESSIONAL OPINION APPEAL DECISION INVOLVING NRC RESPONSE TO NEI CONCERNING THE REGULATORY PATH FOR ACCIDENT TOLERANT FUEL LEAD TEST ASSEMBLIES (DP0-2018-002) DATED: March 14, 2019 DISTRIBUTION: MDoane, EDO DDorman, DEDR SWest, DEDM RLewis, AO DJackson, DAO SRosenberg, ETA ADAMS Accession No.: ML19070A235 OEDO/DEDR OEDO/ETA OFFICE NAME SRosenberg DDorman DATE 03/ 14 /19 03/ 14 /19 OFFICIAL RECORD COPY Offtcial l::lsc 81'11) illAllilin:e 1Bli1J1il IAfGCAlatiOP Official Use Only - Sensitive Internal Information March 1, 2019 MEMORANDUM TO: Daniel H. Dorman Deputy Executive Director for Reactor and Preparedness Programs FROM: Margaret M. Doane /RA K. Steve West Acting for/ Executive Director for Operations SUBJECT: DELEGATION OF AUTHORITY FOR ISSUANCE OF A DIFFERING PROFESSIONAL OPINION APPEAL DECISION The purpose of this memorandum is to delegate authority to Mr. Daniel H. Dorman for issuance of a differing professional opinion (DPO) appeal decision regarding DPO-2018-002 entitled, “NRC Response to NEI Concerning the Regulatory Path for Lead Test Assemblies.” As stated in Section III.D of the handbook for Management Directive (MD) 10.159, “NRC Differing Professional Opinion Program,” the Executive Director for Operations (EDO) is responsible for issuing a DPO appeal decision in a memorandum to the submitter. Consistent with Section 111.C of MD 10.159, the EDO has the discretion to conduct the review of the appeal in any manner she deems appropriate. The DPO appeal process is intended to provide an additional review and response to a submitter if they feel their differing view was not sufficiently addressed in the initial DPO decision. Given my involvement in earlier Lead Test Assembly decisions, in my previous role in the Office of the General Counsel, I believe that the intent of the DPO appeal process is better served by Mr. Dorman issuing this decision. This will allow an independent review of the issues you raise in the appeal. Mr. Dorman’s DPO appeal decision for DPO-2018-002 will be issued under the authority of the EDO and therefore, in accordance with MD 10.159, is not subject to further appeal. This delegation of authority shall remain in place until the DPO appeal decision is issued and DPO-2018-002 is closed. If you have any questions concerning this matter, please contact Stacey Rosenberg (301-415-2357). CONTACT: Stacey Rosenberg, OEDO 301-415-2357 cc: S. West, OEDO R. Lewis, OEDO G. Wilson, OE Official Use Only - Sensitive Internal Information Official Use Only - Sensitive Internal Information D. Dorman -2- SUBJECT: DELEGATION OF AUTHORITY FOR ISSUANCE OF A DIFFERING PROFESSIONAL OPINION APPEAL DECISION; DATED: March 1, 2019 DISTRIBUTION: F. Pedduzzi, OE D. Solorio, OE I. Gifford, OE G. Figueroa-Toledo, OE RidsEdoMailCenter Non-Public ADAMS Accession No.: ML19053A705 OEDO OEDO OFFICE SRosenberg SWest NAME 02/22/2019 02/27 /2019 DATE OFFICIAL RECORD COPY OEDO MDoane (KSWest for) 03 / 01 /2019 Official Use Only - Sensitive Internal Information