ESBWR Design Certification, 16549-16570 [2011-6839]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 76, Number 57 (Thursday, March 24, 2011)]
[Proposed Rules]
[Pages 16549-16570]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-6839]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 76, No. 57 / Thursday, March 24, 2011 / 
Proposed Rules

[[Page 16549]]



NUCLEAR REGULATORY COMMISSION

10 CFR Part 52

[NRC-2010-0135]
RIN 3150-AI85


ESBWR Design Certification

AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC or Commission) 
proposes to amend its regulations to certify the Economic Simplified 
Boiling-Water Reactor (ESBWR) standard plant design. This action is 
necessary so that applicants or licensees intending to construct and 
operate an ESBWR design may do so by referencing this design 
certification rule (DCR). The applicant for certification of the ESBWR 
design is GE-Hitachi Nuclear Energy (GEH). The public is invited to 
submit comments on this proposed DCR, the generic design control 
document (DCD) that would be incorporated by reference into the DCR, 
and the environmental assessment (EA) for the ESBWR design.

DATES: Submit comments on the DCR, DCD and/or EA by June 7, 2011. 
Submit comments specific to the information collections aspects of this 
rule by April 25, 2011. Comments received after the above dates will be 
considered if it is practical to do so, but assurance of consideration 
cannot be given to comments received after these dates.

ADDRESSES: Please include Docket ID NRC-2010-0135 in the subject line 
of your comments. For instructions on submitting comments and accessing 
documents related to this action, see Section I, ``Submitting Comments 
and Accessing Information'' in the SUPPLEMENTARY INFORMATION section of 
this document. You may submit comments by any one of the following 
methods.
     Federal rulemaking Web site: Go to https://www.regulations.gov and search for documents filed under Docket ID NRC-
2010-0135. Address questions about NRC dockets to Carol Gallagher, 
telephone: 301-492-3668; e-mail: Carol.Gallagher@nrc.gov.
     Mail comments to: Secretary, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001, ATTN: Rulemakings and 
Adjudications Staff.
     E-mail comments to: Rulemaking.Comments@nrc.gov. If you do 
not receive a reply e-mail confirming that we have received your 
comments, contact us directly at 301-415-1966.
     Hand Deliver comments to: 11555 Rockville Pike, Rockville, 
Maryland 20852 between 7:30 a.m. and 4:15 p.m. during Federal workdays 
(telephone: 301-415-1966).
     Fax comments to: Secretary, U.S. Nuclear Regulatory 
Commission at 301-415-1101.

FOR FURTHER INFORMATION CONTACT: George M. Tartal, Office of New 
Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555-
0001; telephone: 301-415-0016; e-mail: george.tartal@nrc.gov; or Bruce 
M. Bavol, Office of New Reactors, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001; telephone: 301-415-6715; e-mail: 
bruce.bavol@nrc.gov.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Submitting Comments and Accessing Information
II. Background
III. Regulatory and Policy Issues
IV. Technical Evaluation of the ESBWR
V. Section-by-Section Analysis
    A. Introduction (Section I)
    B. Definitions (Section II)
    C. Scope and Contents (Section III)
    D. Additional Requirements and Restrictions (Section IV)
    E. Applicable Regulations (Section V)
    F. Issue Resolution (Section VI)
    G. Duration of This Appendix (Section VII)
    H. Processes for Changes and Departures (Section VIII)
    I. Inspections, Tests, Analyses, and Acceptance Criteria (ITAAC) 
(Section IX)
    J. Records and Reporting (Section X)
VI. Agreement State Compatibility
VII. Availability of Documents
VIII. Procedures for Access to Proprietary Information, Sensitive 
Unclassified Non-Safeguards Information (Including Proprietary 
Information) and Safeguards Information for Preparation of Comments 
on the Proposed ESBWR Design Certification Rule
IX. Plain Language
X. Voluntary Consensus Standards
XI. Finding of No Significant Environmental Impact: Availability
XII. Paperwork Reduction Act Statement
XIII. Regulatory Analysis
XIV. Regulatory Flexibility Certification
XV. Backfitting

I. Submitting Comments and Accessing Information

    Comments submitted in writing or in electronic form will be posted 
on the NRC Web site and on the Federal rulemaking Web site, https://www.regulations.gov. Because your comments will not be edited to remove 
any identifying or contact information, the NRC cautions you against 
including any information in your submission that you do not want to be 
publicly disclosed. The NRC requests that any party soliciting or 
aggregating comments received from other persons for submission to the 
NRC inform those persons that the NRC will not edit their comments to 
remove any identifying or contact information, and therefore, they 
should not include any information in their comments that they do not 
want publicly disclosed.
    Documents that are not publicly available because they are 
considered to be either Sensitive Unclassified Non-Safeguards 
Information (SUNSI) (including SUNSI constituting ``proprietary 
information'' \1\) or Safeguards Information (SGI) may be available to 
interested persons who may wish to comment on the proposed design 
certification. Such persons shall follow the procedures described in 
the Supplementary Information section of this notice, under the 
heading, ``VIII. Procedures for Access to SUNSI (Including Proprietary 
information) and Safeguards Information for Preparation of Comments on 
the Proposed ESBWR Design Certification Rule.''
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    \1\ For purposes of this discussion, ``proprietary information'' 
constitutes trade secrets or commercial or financial information 
that are privileged or confidential, as those terms are used under 
the Freedom of Information Act (FOIA) and the NRC's implementing 
regulation at Title 10 of the Code of Federal Regulations (10 CFR), 
part 9.
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    You can access publicly available documents related to this 
document, including the following documents, using the following 
methods:
     NRC's Public Document Room (PDR): The public may examine 
and have copied, for a fee, publicly available documents at the NRC's 
PDR, Room O-1F21, One White Flint North, 11555

[[Page 16550]]

Rockville Pike, Rockville, Maryland 20852.
     NRC's Agencywide Documents Access and Management System 
(ADAMS): Publicly available documents created or received at the NRC 
are available electronically at the NRC's Electronic Reading Room at 
https://www.nrc.gov/reading-rm/adams.html. From this page, the public 
can gain entry into ADAMS, which provides text and image files of NRC's 
public documents. If you do not have access to ADAMS or if there are 
problems in accessing the documents located in ADAMS, contact the NRC's 
PDR reference staff at 1-800-397-4209, or 301-415-4737, or by e-mail to 
PDR.Resource@nrc.gov.
     Federal Rulemaking Web Site: Public comments and 
supporting materials related to this proposed rule can be found at 
https://www.regulations.gov by searching on Docket ID NRC-2010-0135.

II. Background

    Subpart B to 10 CFR part 52 sets forth the process for obtaining 
standard design certifications. On August 24, 2005 (70 FR 56745), GEH 
tendered its application for certification of the ESBWR standard plant 
design with the NRC. The GEH submitted this application in accordance 
with Subpart B of 10 CFR part 52. The NRC formally accepted the 
application as a docketed application for design certification (Docket 
No. 52-010) on December 1, 2005 (70 FR 73311). The pre-application 
information submitted before the NRC formally accepted the application 
can be found in ADAMS under Docket No. PROJ0717 (Project No. 717).
    The application for design certification of the ESBWR design has 
been referenced in the following combined license (COL) application as 
of the date of this document:
    Detroit Edison Company, Fermi Unit 3, Docket No. 52-033 (73 FR 
73350; December 2, 2008).

III. Regulatory and Policy Issues

Human Factors Operational Programs

    The NRC is implementing existing Commission policy, that 
operational programs should be excluded from finality except where 
necessary to find design elements acceptable, in a manner different 
from other existing design certification rules. This policy is 
described in the December 6, 1996, staff requirements memorandum (SRM) 
to SECY-96-077, ``Certification of Two Evolutionary Designs,'' dated 
April 15, 1996. The NRC proposes to exclude the two Human Factors 
Engineering (HFE) operational program elements in Chapter 18 of the 
ESBWR DCD from the scope of the design approved in the rule. There are 
12 elements in the HFE program. Two of the elements concern operational 
programs (procedures and training) that are not used to assess the 
adequacy of the HFE design. However, the GEH description of these two 
HFE operational programs addresses existing NRC guidelines in NUREG-
0711, Revision 2, ``Human Factors Engineering Program Review Model,'' 
which are comprehensive, and go beyond the operational program 
information needed as input to the HFE design. In addition, the 
training and procedure elements included in the HFE program are 
redundant to what is reviewed as part of the operational programs 
described in Chapter 13 of the Standard Review Plan (NUREG-0800). 
Accordingly, the NRC is revising the HFE regulatory guidance in NUREG-
0711 to address this overlap, but the revised guidance is not expected 
to be completed until late 2011. In keeping with the established 
Commission policy of not approving operational program elements through 
design certification except where necessary to find design elements 
acceptable, the NRC proposes to exclude the two HFE operational program 
elements in the ESBWR DCD from the scope of the design approved in the 
rule. This would be done explicitly in Section VI, Issue Resolution, of 
the rule, by excluding the two HFE operational program elements from 
the finality accorded to the design. This exclusion would be unique to 
the ESBWR design because all other DCDs for the previously certified 
designs do not include operational program descriptions of HFE training 
and procedures and the respective DCRs did not include specific 
exclusions from finality for it.

Access to SUNSI and SGI in Connection With License Applications

    In the four currently approved design certifications (10 CFR part 
52, Appendices A through D), paragraph VI.E sets forth specific 
directions on how to obtain access to proprietary information and SGI 
on the design certification in connection with a license application 
proceeding referencing that design certification rule. These provisions 
were developed before the events of September 11, 2001. After September 
11, 2001, Congress has changed the statutory requirements governing 
access to SGI, and the NRC has revised its rules, procedures, and 
practices governing control of and access to SUNSI and SGI. The NRC now 
believes that generic direction on obtaining access to SUNSI and SGI is 
no longer appropriate for newly approved DCRs. Accordingly, the 
specific requirements governing access to SUNSI and SGI contained in 
paragraph VI.E of the four currently approved DCRs should not be 
included in the design certification rule for the ESBWR. Instead, the 
NRC should specify the procedures to be used for obtaining access at an 
appropriate time in the COL proceeding referencing the ESBWR DCR. The 
NRC intends to include this change in any future amendment or renewal 
of the existing DCRs. However, the NRC is not planning to initiate 
rulemaking to change paragraph VI.E of the existing DCRs, in order to 
minimize unnecessary resource expenditures by both the original DCR 
applicant and the NRC.

IV. Technical Evaluation of the ESBWR

    The NRC issued a final safety evaluation report (FSER) for the 
ESBWR design in March 2011. The FSER provides the basis for issuance of 
a design certification under Subpart B to 10 CFR part 52 and a final 
design approval under Subpart E to 10 CFR part 52. The GEH has 
requested the NRC provide its design approval for the ESBWR design 
under Subpart E. The final design approval for the ESBWR design will be 
issued before publication of a final rule.
    The significant technical issues that were resolved during the 
review of the ESBWR design are the regulatory treatment of non-safety 
systems (RTNSS), containment performance, control room cooling, steam 
dryer methodology, feedwater temperature (FWT) domain, aircraft impact 
assessment and the use of Code Case N-782.

Regulatory Treatment of Non-Safety Systems

    The ESBWR relies on passive systems to perform safety functions 
credited in the design basis for 72 hours following an initiating 
event. After 72 hours, non-safety systems, either passive or active, 
replenish the passive systems in order to keep them operating or 
perform post-accident recovery functions directly. The ESBWR design 
also uses nonsafety-related active systems to provide defense-in-depth 
capabilities for key safety functions provided by passive systems. The 
challenge during the review was to identify the non-safety systems, 
structures and components (SSCs) that should receive enhanced 
regulatory treatment and to identify the appropriate regulatory 
treatment to be applied to these SSCs. Such SSCs are denoted as ``RTNS 
SSCs.'' As a result of

[[Page 16551]]

the NRC's review, the applicant added Appendix 19A to the DCD to 
identify the nonsafety systems that perform these post-72 hour or 
defense-in-depth functions and the basis for their selection. The 
applicant's selection process was based on the guidance in SECY-94-084, 
``Policy and Technical Issues Associated with the Regulatory Treatment 
of Non-Safety Systems in Passive Plant Designs.''
    To provide reasonable assurance that RTNSS SSCs will be available 
if called upon to function, the applicant established availability 
controls in DCD Tier 2, Appendix 19ACM, and Technical Specifications 
(TS) in DCD Tier 2, Chapter 16, when required by 10 CFR 50.36. The 
applicant also included all RTNSS SSCs in the reliability assurance 
program described in Chapter 17 of DCD Tier 2 and applied augmented 
design standards as described in DCD Tier 2, Section 19A.8.3. The NRC 
finds the applicant's implementation of the RTNSS process described in 
the DCD acceptable.

Containment Performance

    The passive containment cooling system (PCCS) maintains the 
containment within its design pressure and temperature limits for 
design-basis accidents. The system is passive and does not rely upon 
moving components or external power for initiation or operation for 72 
hours following a loss-of-coolant accident (LOCA). The PCCS and its 
design basis are described in detail in Section 6.2.2 of the DCD Tier 
2. The NRC identified a concern regarding the PCCS long-term cooling 
capability for the period from 72 hours to 30 days following a LOCA. To 
address this concern, the applicant proposed additional design features 
credited after 72 hours to reduce the long-term containment pressure. 
The features are the PCCS vent fans and passive autocatalytic 
recombiners as described in DCD Tier 2, Section 6.2.1. These SSCs have 
been indentified in DCD Appendix 19A as RTNSS SSCs.
    The applicant provided calculation results to demonstrate that the 
long-term containment pressure would be acceptable and that the design 
complies with general design criterion (GDC) 38. The NRC's independent 
calculations confirmed the applicant's conclusion and the NRC accepts 
the proposed design and licensing basis. The NRC also raised a concern 
regarding the potential accumulation of high concentrations of hydrogen 
and oxygen in the PCCS and isolation condenser system (ICS), which 
could lead to combustion following a LOCA. The applicant modified the 
design of the PCCS and ICS heat exchangers to withstand potential 
hydrogen detonations. The NRC concludes that the design changes to the 
PCCS and ICS are acceptable and meet the applicable requirements.

Control Room Cooling

    The ESBWR primarily relies on the mass and structure of the control 
building to maintain acceptable temperatures for human and equipment 
performance for up to 72 hours on loss of normal cooling. The NRC had 
not previously approved this approach for maintaining acceptable 
temperatures in the control building. The applicant proposed acceptance 
criteria for the evaluation of the control building structure's thermal 
performance based on industry and NRC guidelines. The applicant 
incorporates by reference an analysis of the control building 
structure's thermal performance as described in Tier 2, Sections 3H, 
6.4, and 9.4. The applicant also proposed ITAAC to confirm that an 
updated analysis of the as-built structure continues to meet the 
thermal performance acceptance criteria. The NRC finds that the 
applicant's acceptance criteria are consistent with the advanced light-
water reactor control room envelope atmosphere temperature limits in 
NUREG-1242, ``NRC Review of Electric Power Research Institute's 
Advanced Light Water Reactor Utility Requirements Document,'' and the 
use of the wet bulb globe temperature index in evaluation of heat 
stress conditions as described in NUREG-0700, ``Human-System Interface 
Design Review Guidelines.'' The NRC finds the control building 
structure thermal performance analysis and ITAAC acceptable based on 
the analysis using bounding environmental assumptions which will be 
confirmed by the ITAAC. Accordingly, the NRC finds that the acceptance 
criteria, control building structure thermal performance analysis, and 
the ITAAC, provide reasonable assurance that acceptable temperatures 
will be maintained in the control building for 72 hours. Therefore, the 
NRC finds that the control building design in regard to thermal 
performance conforms to the guidelines of Standard Review Plan Section 
6.4 and complies with the requirements of the general design criteria 
of 10 CFR part 50, Appendix A, GDC 19.

Feedwater Temperature Operating Domain

    In operating boiling-water reactors the recirculation pumps are 
used in combination with the control rods to control and maneuver 
reactor power level during normal power operation. The ESBWR design is 
unique in that the core is cooled by natural circulation during normal 
operation, and there are no recirculation pumps. In Chapter 15 of the 
DCD, GEH references the licensing topical report (LTR) NEDO-33338, 
Revision 1, ``ESBWR Feedwater Temperature Operating Domain Transient 
and Accident Analysis.'' This LTR describes a broadening of the ESBWR 
operating domain, which allows for increased flexibility of operation 
by adjusting the FWT. This increased flexibility accommodates the so-
called ``soft'' operating practices, which reduce the duty (mechanical 
stress) to the fuel and minimize the probability of pellet-clad 
interactions and associated fuel failures.
    By adjusting the FWT, the operator can control the reactor power 
level without control blade motion and with minimum impact on the fuel 
duty. Control blade maneuvering can also be performed at lower power 
levels.
    To control the FWT, the ESBWR design includes a seventh feedwater 
heater with high-pressure steam. FWT is controlled by either 
manipulating the main steam flow to the No. 7 feedwater heater to 
increase FWT above the temperature normally provided by the feedwater 
heaters with turbine extraction steam (normal FWT) or by directing a 
portion of the feedwater flow around the high-pressure feedwater 
heaters to decrease FWT below the normal FWT. An increase in FWT 
decreases reactor power, and a decrease in FWT increases reactor power. 
The applicant provided analyses that demonstrated ample margin to 
acceptance criteria. The NRC concludes that the applicant has 
adequately accounted for the effects of the proposed FWT operating 
domain extension on the nuclear design. Further, the applicant has 
demonstrated that the fuel design limits will not be exceeded during 
normal or anticipated operational transients and that the effects of 
postulated transients and accidents will not impair the capability to 
cool the core. Based on this evaluation, the NRC concludes that the 
nuclear design of the fuel assemblies, control systems, and reactor 
core will continue to meet the applicable regulatory requirements.

Steam Dryer Design Methodology

    As a result of reactor pressure vessel (RPV) steam dryer issues at 
operating BWRs, the NRC issued revised guidance concerning the 
evaluation of steam dryers. The guidance requested analysis to show 
that the dryer will maintain its structural integrity during plant 
operation in spite of or in the face of

[[Page 16552]]

acoustic and hydrodynamic fluctuating pressure loads. This 
demonstration of RPV steam dryer structural integrity consists of three 
steps:
    (1) Predict the fluctuating pressure loads on the dryer,
    (2) Use these fluctuating pressure loads in a structural analysis 
to qualify the steam dryer design, and
    (3) Implement a startup test program for confirming the steam dryer 
design analysis results during the initial plant power ascension 
testing.
    The Plant Based Load Evaluation (PBLE) methodology is an analytical 
tool developed by GEH to predict fluctuating pressure loads on the 
steam dryer. Section 3.9.5 of the DCD references the GEH LTR NEDE-
33313P, ``ESBWR Steam Dryer Structural Evaluation,'' which references 
LTR NEDE-33312P, ``ESBWR Steam Dryer Acoustic Load Definition,'' which 
references the PBLE load definition method. The PBLE method is 
described in LTR NEDC-33408P, ``ESBWR Steam Dryer-Plant Base Load 
Evaluation Methodology.'' This LTR provides the theoretical basis for 
determining the fluctuating loads on the ESBWR steam dryer, describes 
the PBLE analytical model, determines the biases and uncertainties of 
the PBLE formulation, and describes the application of the PBLE method 
to the evaluation of the ESBWR steam dryer.
    The NRC's review of the PBLE methodology concludes that it is 
technically sound and provides a conservative analytical approach for 
definition of flow-induced acoustic pressure loading on the ESBWR steam 
dryer. The application of the PBLE load definition process together 
with the design criteria from the American Society of Mechanical 
Engineers (ASME) Code, Section III, Article NG-3000 in combination with 
the proposed start up test program provide assurance of the structural 
integrity of the steam dryer. Implementation of the analytical, design, 
and testing methodology for the ESBWR steam dryer demonstrate 
conformance with the general design criteria of 10 CFR part 50, 
Appendix A, GDCs 1, 2, and 4.

Aircraft Impact Assessment

    Under 10 CFR 50.150, which became effective on July 13, 2009, 
designers of new nuclear power reactors are required to perform an 
assessment of the effects on the designed facility of the impact of a 
large, commercial aircraft. An applicant for a new design certification 
rule is required to submit a description of the design features and 
functional capabilities identified as a result of the assessment (key 
design features) in its DCD together with a description of how the 
identified design features and functional capabilities show that the 
acceptance criteria in 10 CFR 50.150(a)(1) are met.
    To address the requirements of 10 CFR 50.150, GEH completed an 
assessment of the effects on the designed facility of the impact of a 
large, commercial aircraft. The GEH also added Appendix 19D to DCD Tier 
2 to describe the design features and functional capabilities of the 
ESBWR identified as a result of the assessment that ensure the reactor 
core remains cooled and the spent fuel pool integrity is maintained.
    The NRC finds that the applicant has performed an aircraft impact 
assessment using NRC-endorsed methodology that is reasonably formulated 
to identify design features and functional capabilities to show, with 
reduced use of operator action, that the acceptance criteria in 10 CFR 
50.150(a)(1) are met. The NRC finds that the applicant adequately 
describes the key design features and functional capabilities credited 
to meet 10 CFR 50.150, including descriptions of how the key design 
features and functional capabilities show that the acceptance criteria 
in 10 CFR 50.150(a)(1) are met. Therefore, the NRC finds that the 
applicant meets the applicable requirements of 10 CFR 50.150(b).

Code Case N-782

    Under 10 CFR 50.55a(a)(3), GEH requested NRC approval for the use 
of Code Case N-782 as a proposed alternative to the rules of Section 
III Subsection NCA-1140 regarding applied Code Editions and Addenda 
required by 10 CFR 50.55a(c), (d), and (e). Code Case N-782 provides 
that the Code Edition and Addenda endorsed in a certified design or 
licensed by the regulatory authority may be used for systems and 
components subject to ASME Code, Section III requirements. These 
alternative requirements are in lieu of the requirements that base the 
Edition and Addenda on the date of the COL or manufacturing license, or 
the application for a construction permit, standard design approval, or 
standard design certification. Reference to Code Case N-782 will be 
included in component and system design specifications and design 
reports to permit certification of these specifications and reports to 
the Code Edition and Addenda cited in the DCD. The NRC's bases for 
approving the use of Code Case N-782 as a proposed alternative to the 
requirements of Section III Subsection NCA-1140 under 10 CFR 
50.55a(a)(3) for the ESBWR are described in Section 5.2.1.1.3 of the 
FSER.

Exemptions

    The NRC is proposing to approve an exemption from 10 CFR 
50.34(f)(2)(iv) as it relates to the safety parameter display system. 
This provision requires an applicant to provide a plant safety 
parameter display console that will display to operators a minimum set 
of parameters defining the safety status of the plant, capable of 
displaying a full range of important plant parameters and data trends 
on demand and indicating when process limits are being approached or 
exceeded. The ESBWR design integrates the safety parameter display 
system into the design of the non-safety related distribution control 
and information system, rather than use a stand-alone console. The 
NRC's bases for providing the exemption are described in Section 
18.8.3.2 of the FSER.

V. Section-by-Section Analysis

    The following discussion sets forth the purpose and key aspects of 
each section and paragraph of the proposed ESBWR DCR. All section and 
paragraph references are to the provisions in the proposed Appendix E 
to 10 CFR part 52 unless otherwise noted. The NRC has modeled the ESBWR 
DCR on the existing DCRs, with certain modifications where necessary to 
account for differences in the ESBWR design documentation, design 
features, and EA (including severe accident mitigation design 
alternatives (SAMDAs)). As a result, the DCRs are standardized to the 
extent practical.

A. Introduction (Section I)

    The purpose of Section I of proposed Appendix E to 10 CFR part 52 
(this appendix) is to identify the standard plant design that would be 
approved by this DCR and the applicant for certification of the 
standard design. Identification of the design certification applicant 
is necessary to implement this appendix for two reasons. First, the 
implementation of 10 CFR 52.63(c) depends on whether an applicant for a 
COL contracts with the design certification applicant to provide the 
generic DCD and supporting design information. If the COL applicant 
does not use the design certification applicant to provide the design 
information and instead uses an alternate nuclear plant vendor, then 
the COL applicant must meet the requirements in 10 CFR 52.73. The COL 
applicant must demonstrate that the alternate supplier is qualified to 
provide the standard plant design information.

[[Page 16553]]

Second, paragraph X.A.1 would require the design certification 
applicant to maintain the generic DCD throughout the time this appendix 
may be referenced. Thus, it is necessary to identify the entity to 
which the requirement in paragraph X.A.1 applies.

B. Definitions (Section II)

    During development of the first two DCRs, the Commission decided 
that there would be both generic (master) DCDs maintained by the NRC 
and the design certification applicant, as well as individual plant-
specific DCDs maintained by each applicant and licensee that reference 
this appendix. This distinction is necessary in order to specify the 
relevant plant-specific requirements to applicants and licensees 
referencing the appendix. In order to facilitate the maintenance of the 
master DCDs, the NRC proposes that each application for a standard 
design certification be updated to include an electronic copy of the 
final version of the DCD. The final version would be required to 
incorporate all amendments to the DCD submitted since the original 
application as well as any changes directed by the NRC as a result of 
its review of the original DCD or as a result of public comments. This 
final version would become the master DCD incorporated by reference in 
the DCR. The master DCD would be revised as needed to include generic 
changes to the version of the DCD approved in this design certification 
rulemaking. These changes would occur as the result of generic 
rulemaking by the Commission, under the change criteria in Section 
VIII.
    The Commission would also require each applicant and licensee 
referencing this appendix to submit and maintain a plant-specific DCD 
as part of the COL Final Safety Analysis Report (FSAR). This plant-
specific DCD would include or incorporate by reference the information 
in the generic DCD. The plant-specific DCD would be updated as 
necessary to reflect the generic changes to the DCD that the Commission 
may adopt through rulemaking, plant-specific departures from the 
generic DCD that the Commission imposed on the licensee by order, and 
any plant-specific departures that the licensee chooses to make in 
accordance with the relevant processes in Section VIII. Thus, the 
plant-specific DCD would function like an updated FSAR because it would 
provide the most complete and accurate information on a plant's design 
basis for that part of the plant within the scope of this appendix. 
Therefore, this appendix would define both a generic DCD and a plant-
specific DCD.
    Also, the Commission decided to treat the TS in Chapter 16 of the 
generic DCD as a special category of information and to designate them 
as generic TS in order to facilitate the special treatment of this 
information under this appendix. A COL applicant must submit plant-
specific TS that consist of the generic TS, which may be modified under 
paragraph VIII.C, and the remaining plant-specific information needed 
to complete the TS. The FSAR that is required by 10 CFR 52.79 will 
consist of the plant-specific DCD, the site-specific portion of the 
FSAR, and the plant-specific TS.
    The terms Tier 1, Tier 2, Tier 2*, and COL action items (license 
information) are defined in this appendix because these concepts were 
not envisioned when 10 CFR part 52 was developed. The design 
certification applicants and the NRC used these terms in implementing 
the two-tiered rule structure that was proposed by representatives of 
the nuclear industry after issuance of 10 CFR part 52. Therefore, 
appropriate definitions for these additional terms are included in this 
appendix. The nuclear industry representatives requested a two-tiered 
structure for the DCRs to achieve issue preclusion for a greater amount 
of information than was originally planned for the DCRs, while 
retaining flexibility for design implementation. The Commission 
approved the use of a two-tiered rule structure in its SRM, dated 
February 14, 1991, on SECY-90-377, ``Requirements for Design 
Certification under 10 CFR Part 52,'' dated November 8, 1990. This 
document and others are available in the Regulatory History of Design 
Certification (see Section VII of this document).
    The Tier 1 portion of the design-related information contained in 
the DCD would be certified by this appendix and, therefore, subject to 
the special backfit provisions in paragraph VIII.A. An applicant who 
references this appendix would be required to include or incorporate by 
reference and comply with Tier 1, under paragraphs III.B and IV.A.1. 
This information consists of an introduction to Tier 1, the system 
based and non-system based design descriptions and corresponding ITAAC, 
significant interface requirements, and significant site parameters for 
the design (refer to Section C.I.1.8 of Regulatory Guide 1.206 for 
guidance on significant interface requirements and site parameters). 
The design descriptions, interface requirements, and site parameters in 
Tier 1 were derived from Tier 2, but may be more general than the Tier 
2 information. The NRC staff's evaluation of the Tier 1 information is 
provided in Section 14.3 of the FSER. Changes to or departures from the 
Tier 1 information must comply with Section VIII.A.
    The Tier 1 design descriptions serve as requirements for the 
lifetime of a facility license referencing the design certification. 
The inspection, test, analysis, and acceptance criterion/criteria 
(ITAAC) verify that the as-built facility conforms to the approved 
design and applicable regulations. Under 10 CFR 52.103(g), the 
Commission must find that the acceptance criteria in the ITAAC are met 
before authorizing operation. After the Commission has made the finding 
required by 10 CFR 52.103(g), the ITAAC do not constitute regulatory 
requirements for licensees or for renewal of the COL. However, 
subsequent modifications to the facility within the scope of the design 
certification must comply with the design descriptions in the plant-
specific DCD unless changes are made under the change process in 
Section VIII. The Tier 1 interface requirements are the most 
significant of the interface requirements for systems that are wholly 
or partially outside the scope of the standard design. Tier 1 interface 
requirements must be met by the site-specific design features of a 
facility that references this appendix. An application that references 
this appendix must demonstrate that the site characteristics at the 
proposed site fall within the site parameters (both Tier 1 and Tier 2) 
(refer to paragraph IV.D of this document).
    Tier 2 is the portion of the design-related information contained 
in the DCD that would be approved by this appendix but not certified. 
Tier 2 information would be subject to the backfit provisions in 
paragraph VIII.B. Tier 2 includes the information required by 10 CFR 
52.47(a) and 52.47(c) (with the exception of generic TS and conceptual 
design information) and the supporting information on inspections, 
tests, and analyses that will be performed to demonstrate that the 
acceptance criteria in the ITAAC have been met. As with Tier 1, 
paragraphs III.B and IV.A.1 would require an applicant who references 
this appendix to include or incorporate by reference Tier 2 and to 
comply with Tier 2, except for the COL action items, including the 
availability controls in Appendix 19ACM of the generic DCD. The 
definition of Tier 2 makes clear that Tier 2 information has been 
determined by the Commission, by virtue of its inclusion in this 
appendix and its designation as Tier 2 information, to be an approved 
sufficient method for meeting Tier 1 requirements. However,

[[Page 16554]]

there may be other acceptable ways of complying with Tier 1 
requirements. The appropriate criteria for departing from Tier 2 
information would be specified in paragraph VIII.B. Departures from 
Tier 2 information would not negate the requirement in paragraph III.B 
to incorporate by reference Tier 2 information.
    A definition of ``combined license action items'' (COL 
information), which is part of the Tier 2 information, would be added 
to clarify that COL applicants who reference this appendix are required 
to address COL action items in their license application. However, the 
COL action items are not the only acceptable set of information. An 
applicant may depart from or omit COL action items, provided that the 
departure or omission is identified and justified in the FSAR. After 
issuance of a construction permit or COL, these items would not be 
requirements for the licensee unless they are restated in the FSAR. For 
additional discussion, see Section IV.D of this document.
    The availability controls, which are set forth in Appendix 19ACM of 
the generic DCD, would be added to the information that is part of Tier 
2 to clarify that the availability controls are not operational 
requirements for the purposes of paragraph VIII.C. Rather, the 
availability controls are associated with specific design features. The 
availability controls may be changed if the associated design feature 
is changed under paragraph VIII.B. For additional discussion, see 
Section IV.C of this document.
    Certain Tier 2 information has been designated in the generic DCD 
with brackets and italicized text as ``Tier 2*'' information and, as 
discussed in greater detail in the section-by-section analysis for 
Section H, a plant-specific departure from Tier 2* information would 
require prior NRC approval. However, the Tier 2* designation expires 
for some of this information when the facility first achieves full 
power after the finding required by 10 CFR 52.103(g). The process for 
changing Tier 2* information and the time at which its status as Tier 
2* expires is set forth in paragraph VIII.B.6. Some Tier 2* 
requirements concerning special preoperational tests are designated to 
be performed only for the first plant or first three plants referencing 
the ESBWR DCR. The Tier 2* designation for these selected tests would 
expire after the first plant or first three plants complete the 
specified tests. However, a COL action item requires that subsequent 
plants also perform the tests or justify that the results of the first-
plant-only or first-three-plants-only tests are applicable to the 
subsequent plant.
    The regulations at 10 CFR 50.59 set forth thresholds for permitting 
changes to a plant as described in the FSAR without NRC approval. 
Inasmuch as 10 CFR 50.59 is the primary change mechanism for operating 
nuclear plants, the Commission believes that future plants referencing 
the ESBWR DCR should use thresholds as close to 10 CFR 50.59 as is 
practicable and appropriate for new reactors. Because of some 
differences in how the change control requirements are structured in 
the DCRs, certain definitions contained in 10 CFR 50.59 are not 
applicable to 10 CFR part 52 and are not being included in this 
proposed rule. The Commission is including a definition for a 
``departure from a method of evaluation'' (paragraph II.G), which is 
appropriate to include in this rulemaking so that the eight criteria in 
paragraph VIII.B.5.b will be implemented for new reactors as intended.

C. Scope and Contents (Section III)

    The purpose of Section III is to describe and define the scope and 
contents of this design certification and to set forth how 
documentation discrepancies or inconsistencies are to be resolved. 
Paragraph III.A is the required statement of the Office of the Federal 
Register (OFR) for approval of the incorporation by reference of Tier 
1, Tier 2, and the generic TS into this appendix. Paragraph III.B 
requires COL applicants and licensees to comply with the requirements 
of this appendix. The legal effect of incorporation by reference is 
that the incorporated material has the same legal status as if it were 
published in the Code of Federal Regulations. This material, like any 
other properly-issued regulation, has the force and effect of law. Tier 
1 and Tier 2 information, as well as the generic TS, have been combined 
into a single document called the generic DCD, in order to effectively 
control this information and facilitate its incorporation by reference 
into the rule. The generic DCD was prepared to meet the technical 
information contents of application requirements for design 
certifications under 10 CFR 52.47(a) and the requirements of the OFR 
for incorporation by reference under 1 CFR part 51. One of the 
requirements of the OFR for incorporation by reference is that the 
design certification applicant must make the generic DCD available upon 
request after the final rule becomes effective. Therefore, paragraph 
III.A would identify a GEH representative to be contacted in order to 
obtain a copy of the generic DCD.
    Paragraphs III.A and III.B would also identify the availability 
controls in Appendix 19ACM of the generic DCD as part of the Tier 2 
information. During its review of the ESBWR design, the NRC determined 
that residual uncertainties associated with passive safety system 
performance increased the importance of non-safety-related active 
systems in providing defense-in-depth functions that back-up the 
passive systems. As a result, GEH developed administrative controls to 
provide a high level of confidence that active systems having a 
significant safety role are available when challenged. The GEH named 
these additional controls ``availability controls.'' The Commission 
included this characterization in Section III to ensure that these 
availability controls would be binding on applicants and licensees that 
reference this appendix and would be enforceable by the NRC. The NRC's 
evaluation of the availability controls is provided in Chapter 22 of 
the FSER.
    The generic DCD (master copy) for this design certification is 
electronically accessible under ADAMS Accession No. ML103440266; at the 
OFR; and at https://www.regulations.gov by searching under Docket ID 
NRC-2010-0135. Copies of the generic DCD would also be available at the 
NRC's PDR. Questions concerning the accuracy of information in an 
application that references this appendix will be resolved by checking 
the master copy of the generic DCD in ADAMS. If the design 
certification applicant makes a generic change (rulemaking) to the DCD 
under 10 CFR 52.63 and the change process provided in Section VIII, 
then at the completion of the rulemaking the NRC would request approval 
of the Director, OFR, for the revised master DCD. The Commission would 
require that the design certification applicant maintain an up-to-date 
copy of the master DCD that includes any generic changes it has made 
under paragraph X.A.1 because it is likely that most applicants 
intending to reference the standard design would obtain the generic DCD 
from the design certification applicant. Plant-specific changes to and 
departures from the generic DCD would be maintained by the applicant or 
licensee that references this appendix in a plant-specific DCD under 
paragraph X.A.2.
    In addition to requiring compliance with this appendix, paragraph 
III.B would clarify that the conceptual design information and GEH's 
evaluation of SAMDAs are not considered to be part of this appendix. 
The conceptual design information is for those portions of the plant 
that are outside the scope of the standard design and are contained in

[[Page 16555]]

Tier 2 information. As provided by 10 CFR 52.47(a)(24), these 
conceptual designs are not part of this appendix and, therefore, are 
not applicable to an application that references this appendix. 
Therefore, the applicant would not be required to conform with the 
conceptual design information that was provided by the design 
certification applicant. The conceptual design information, which 
consists of site-specific design features, was required to facilitate 
the design certification review. Conceptual design information is 
neither Tier 1 nor Tier 2. Section 1.8.2 of Tier 2 identifies the 
location of the conceptual design information. The GEH's evaluation of 
various design alternatives to prevent and mitigate severe accidents 
does not constitute design requirements. The Commission's assessment of 
this information is discussed in Section X of this document.
    Paragraphs III.C and III.D would set forth the way potential 
conflicts are to be resolved. Paragraph III.C would establish the Tier 
1 description in the DCD as controlling in the event of an 
inconsistency between the Tier 1 and Tier 2 information in the DCD. 
Paragraph III.D would establish the generic DCD as the controlling 
document in the event of an inconsistency between the DCD and the FSER 
for the certified standard design.
    Paragraph III.E would clarify that design activities that are 
wholly outside the scope of this design certification may be performed 
using actual site characteristics, provided the design activities do 
not affect Tier 1 or Tier 2, or conflict with the interface 
requirements in the DCD. This provision would apply to site-specific 
portions of the plant, such as the administration building. Because 
this statement is not a definition, this provision has been located in 
Section III.

D. Additional Requirements and Restrictions (Section IV)

    Section IV would set forth additional requirements and restrictions 
imposed upon an applicant who references this appendix. Paragraph IV.A 
would set forth the information requirements for these applicants. This 
paragraph would distinguish between information and/or documents which 
must actually be included in the application or the DCD, versus those 
which may be incorporated by reference (i.e., referenced in the 
application as if the information or documents were included in the 
application). Any incorporation by reference in the application should 
be clear and should specify the title, date, edition, or version of a 
document, the page number(s), and table(s) containing the relevant 
information to be incorporated.
    Paragraph IV.A.1 would require an applicant who references this 
appendix to incorporate by reference this appendix in its application. 
The legal effect of such an incorporation by reference is that this 
appendix would be legally binding on the applicant or licensee. 
Paragraph IV.A.2.a would require that a plant-specific DCD be included 
in the initial application to ensure that the applicant commits to 
complying with the DCD. This paragraph would also require the plant-
specific DCD to either include or incorporate by reference the generic 
DCD information. Further, this paragraph would also require the plant-
specific DCD to use the same format as the generic DCD and reflect the 
applicant's proposed exemptions and departures from the generic DCD as 
of the time of submission of the application. The plant-specific DCD 
would be part of the plant's FSAR, along with information for the 
portions of the plant outside the scope of the referenced design. 
Paragraph IV.A.2.a would also require that the initial application 
include the reports on departures and exemptions as of the time of 
submission of the application.
    Paragraph IV.A.2.b would require that an application referencing 
this appendix include the reports required by paragraph X.B for 
exemptions and departures proposed by the applicant as of the date of 
submission of its application. Paragraph IV.A.2.c would require 
submission of plant-specific TS for the plant that consists of the 
generic TS from Chapter 16 of the DCD, with any changes made under 
paragraph VIII.C, and the TS for the site-specific portions of the 
plant that are either partially or wholly outside the scope of this 
design certification. The applicant must also provide the plant-
specific information designated in the generic TS, such as bracketed 
values (refer to guidance provided in Interim Staff Guidance DC/COL-
ISG-8, ``Necessary Content of Plant-Specific Technical 
Specifications'').
    Paragraph IV.A.2.d would require the applicant referencing this 
appendix to provide information demonstrating that the proposed site 
characteristics fall within the site parameters for this appendix and 
that the plant-specific interface requirements have been met as 
required by 10 CFR 52.79(d). If the proposed site has a characteristic 
that does not fall within one or more of the site parameters in the 
DCD, then the proposed site would be unacceptable for this design 
unless the applicant seeks an exemption under Section VIII and provides 
adequate justification for locating the certified design on the 
proposed site. Paragraph IV.A.2.e would require submission of 
information addressing COL action items, identified in the generic DCD 
as COL information in the application. The COL information identifies 
matters that need to be addressed by an applicant who references this 
appendix, as required by Subpart C of 10 CFR part 52. An applicant may 
differ from or omit these items, provided that the difference or 
omission is identified and justified in its application. Based on the 
applicant's difference or omission, the NRC may impose additional 
licensing requirement(s) on the COL applicant as appropriate. Paragraph 
IV.A.2.f would require that the application include the information 
specified by 10 CFR 52.47(a) that is not within the scope of this rule, 
such as generic issues that must be addressed or operational issues not 
addressed by a design certification, in whole or in part, by an 
applicant that references this appendix. Paragraph IV.A.3 would require 
the applicant to physically include, not simply reference, the SUNSI 
(including proprietary information) and SGI referenced in the DCD, or 
its equivalent, to ensure that the applicant has actual notice of these 
requirements.
    Paragraph IV.A.4 would indicate requirements that must be met in 
cases where the COL applicant is not using the entity that was the 
original applicant for the design certification (or amendment) to 
supply the design for the applicant's use. Proposed paragraph IV.A.4 
would require that a COL applicant referencing this appendix include, 
as part of its application, a demonstration that an entity other than 
GEH Nuclear Energy is qualified to supply the ESBWR certified design 
unless GEH Nuclear Energy supplies the design for the applicant's use. 
In cases where a COL applicant is not using GEH Nuclear Energy to 
supply the ESBWR certified design, the required information would be 
used to support any NRC finding under 10 CFR 52.73(a) that an entity 
other than the one originally sponsoring the design certification or 
design certification amendment is qualified to supply the certified 
design.
    Paragraph IV.B would reserve to the Commission the right to 
determine in what manner this appendix may be referenced by an 
applicant for a construction permit or operating license under 10 CFR 
part 50. This determination may occur in the context of a subsequent 
rulemaking modifying 10 CFR part 52 or this design

[[Page 16556]]

certification rule, or on a case-by-case basis in the context of a 
specific application for a 10 CFR part 50 construction permit or 
operating license. This provision is necessary because the previous 
DCRs were not implemented in the manner that was originally envisioned 
at the time that 10 CFR part 52 was promulgated. The Commission's 
concern is with the way ITAAC were developed and the lack of experience 
with design certifications in license proceedings. Therefore, it is 
appropriate that the Commission retain some discretion regarding the 
way this appendix could be referenced in a 10 CFR part 50 licensing 
proceeding.

E. Applicable Regulations (Section V)

    The purpose of Section V is to specify the regulations that would 
be applicable and in effect at the time this proposed design 
certification is approved (i.e., as of the date specified in paragraph 
V.A, which would be the date that this appendix is approved by the 
Commission and signed by the Secretary of the Commission). These 
regulations would consist of the technically relevant regulations 
identified in paragraph V.A, except for the regulations in paragraph 
V.B that would not be applicable to this certified design.
    In paragraph V.B, the Commission would identify the regulations 
that do not apply to the ESBWR design. The Commission has determined 
that the ESBWR design should be exempt from portions of 10 CFR 50.34 as 
described in the FSER (NUREG-XXXX) and/or summarized below:
(1) Paragraph (f)(2)(iv) of 10 CFR 50.34--Contents of Construction 
Permit and Operating License Applications: Technical Information
    This paragraph requires an applicant to provide a plant safety 
parameter display console that will display to operators a minimum set 
of parameters defining the safety status of the plant, capable of 
displaying a full range of important plant parameters and data trends 
on demand, and capable of indicating when process limits are being 
approached or exceeded. The ESBWR design integrates the safety 
parameter display system into the design of the non-safety related 
distribution control and information system, rather than use a stand-
alone console. The safety parameter display system is described in 
Section 7.1.5 of the DCD.
    The Commission has also determined that the ESBWR design is 
approved to use the following alternative. Under 10 CFR 50.55a(a)(3), 
GEH requested NRC approval for the use of Code Case N-782 as a proposed 
alternative to the rules of Section III, Subsection NCA-1140, regarding 
applied Code Editions and Addenda required by 10 CFR 50.55a(c), (d), 
and (e). Code Case N-782 provides that the Code Edition and Addenda 
endorsed in a certified design or licensed by the regulatory authority 
may be used for systems and components constructed to ASME Code, 
Section III requirements. These alternative requirements are in lieu of 
the requirements that base the Edition and Addenda on the construction 
permit date. Reference to Code Case N-782 will be included in component 
and system design specifications and design reports to permit 
certification of these specifications and reports to the Code Edition 
and Addenda cited in the DCD. The NRC's bases for approving the use of 
Code Case N-782 as a proposed alternative to the requirements of 
Section III Subsection NCA-1140 under 10 CFR 50.55a(a)(3) for ESBWR are 
described in Section 5.2.1.1.3 of the FSER.

F. Issue Resolution (Section VI)

    The purpose of Section VI is to identify the scope of issues that 
would be resolved by the Commission in this rulemaking and, therefore, 
are ``matters resolved'' within the meaning and intent of 10 CFR 
52.63(a)(5). The section is divided into five parts: paragraph A 
identifies the Commission's safety findings in adopting this appendix, 
paragraph B identifies the scope and nature of issues which are 
resolved by this rulemaking, paragraph C identifies issues which are 
not resolved by this rulemaking, paragraph D identifies the backfit 
restrictions applicable to the Commission with respect to this 
appendix, and paragraph E identifies the availability of secondary 
references.
    Paragraph VI.A would describe the nature of the Commission's 
findings in general terms and make the findings required by 10 CFR 
52.54 for the Commission's approval of this DCR. Furthermore, paragraph 
VI.A would explicitly state the Commission's determination that this 
design provides adequate protection of the public health and safety.
    Paragraph VI.B would set forth the scope of issues that may not be 
challenged as a matter of right in subsequent proceedings. The 
introductory phrase of paragraph VI.B clarifies that issue resolution 
as described in the remainder of the paragraph extends to the 
delineated NRC proceedings referencing this appendix. The remainder of 
paragraph VI.B describes the categories of information for which there 
is issue resolution. Specifically, paragraph VI.B.1 would provide that 
all nuclear safety issues arising from the Atomic Energy Act of 1954, 
as amended, that are associated with the information in the NRC staff's 
FSER (NUREG-XXXX), the Tier 1 and Tier 2 information (including the 
availability controls in Appendix 19ACM of the generic DCD), and the 
rulemaking record for this appendix are resolved within the meaning of 
10 CFR 52.63(a)(5). These resolved issues include the information 
referenced in the DCD that are requirements (i.e., ``secondary 
references''), as well as all issues arising from proprietary 
information and SGI that are intended to be requirements, but does not 
include the HFE processes for procedure development and training 
program development identified in Sections 18.9 and 18.10 of the 
generic DCD.
    Paragraph VI.B.2 would provide for issue preclusion of SUNSI 
(including proprietary information) and SGI. Paragraphs VI.B.3, VI.B.4, 
VI.B.5, and VI.B.6 would clarify that approved changes to and 
departures from the DCD, which are accomplished in compliance with the 
relevant procedures and criteria in Section VIII, continue to be 
matters resolved in connection with this rulemaking. Paragraphs VI.B.4, 
VI.B.5, and VI.B.6, which would characterize the scope of issue 
resolution in three situations, use the phrase ``but only for that 
plant.'' Paragraph VI.B.4 would describe how issues associated with a 
design certification rule are resolved when an exemption has been 
granted for a plant referencing the design certification rule. 
Paragraph VI.B.5 would describe how issues are resolved when a plant 
referencing the DC rule obtains a license amendment for a departure 
from Tier 2 information. Paragraph VI.B.6 would describe how issues are 
resolved when the applicant or licensee departs from the Tier 2 
information on the basis of paragraph VIII.B.5, which would waive the 
requirement for NRC approval. In all three situations, after a matter 
(e.g., an exemption in the case of paragraph VI.B.4) is addressed for a 
specific plant referencing a design certification rule, the adequacy of 
that matter for that plant is resolved and would constitute part of the 
licensing basis for that plant. Therefore, that matter would not 
ordinarily be subject to challenge in any subsequent proceeding or 
action for that plant (e.g., an enforcement action) listed in the 
introductory portion of paragraph IV.B. By contrast, there would be no 
legally binding issue resolution on that subject matter for any other 
plant, or in

[[Page 16557]]

a subsequent rulemaking amending the applicable design certification 
rule. However, the NRC's consideration of the safety, regulatory or 
policy issues necessary to the determination of the exemption or 
license amendment may, in appropriate circumstances, be relied upon as 
part of the basis for NRC action in other licensing proceedings or 
rulemaking.
    Paragraph VI.B.7 would provide that, for those plants located on 
sites whose site characteristics fall within the site parameters 
assumed in the GEH evaluation of SAMDAs, all issues with respect to 
SAMDAs arising under the National Environmental Policy Act of 1969, as 
amended (NEPA), associated with the information in the EA for this 
design and the information regarding SAMDAs in NEDO-33306, Revision 4, 
``ESBWR Severe Accident Mitigation Design Alternatives'' are also 
resolved within the meaning and intent of 10 CFR 52.63(a)(5). If a 
deviation from a site parameter is granted, the deviation applicant has 
the initial burden of demonstrating that the original SAMDA analysis 
still applies to the actual site characteristics; but, if the deviation 
is approved, requests for litigation at the COL stage must meet the 
requirements of 10 CFR 2.309 and present sufficient information to 
create a genuine controversy in order to obtain a hearing on the site 
parameter deviation.
    Paragraph VI.C would reserve the right of the Commission to impose 
operational requirements on applicants that reference this appendix. 
This provision would reflect the fact that only some operational 
requirements, including portions of the generic TS in Chapter 16 of the 
DCD, and no operational programs, such as operational QA, were 
completely or comprehensively reviewed by the NRC in this design 
certification rulemaking proceeding. Therefore, the special backfit and 
finality provisions of 10 CFR 52.63 would apply only to those 
operational requirements that either the NRC completely reviewed and 
approved, or formed the basis for an NRC safety finding of the adequacy 
of the ESBWR, as documented in the NRC's safety evaluation report for 
the ESBWR. This is consistent with the currently approved design 
certifications in 10 CFR part 52, Appendices A through D. Although 
information on operational matters is included in the DCDs of each of 
these currently approved designs, for the most part these design 
certifications do not provide approval for operational information, and 
none provide approval for operational ``programs'' (e.g., emergency 
preparedness programs, operational quality assurance programs). Most 
operational information in the DCD simply serves as ``contextual 
information'' (i.e., information necessary to understand the design of 
certain SSCs and how they would be used in the overall context of the 
facility). The NRC did not use contextual information to support the 
NRC's safety conclusions, and such information does not constitute the 
underlying safety bases for the adequacy of those SSCs. Thus, 
contextual operational information on any particular topic would not 
constitute one of the ``matters resolved'' under paragraph VI.B.
    The NRC notes that operational requirements may be imposed on 
licensees referencing this design certification through the inclusion 
of license conditions in the license, or inclusion of a description of 
the operational requirement in the plant-specific FSAR.\2\ The NRC's 
choice of the regulatory vehicle for imposing the operational 
requirements will depend upon, among other things: (1) Whether the 
development and/or implementation of these requirements must occur 
prior to either the issuance of the COL or the Commission finding under 
10 CFR 52.103(g), and (2) the nature of the change controls which the 
NRC believes are appropriate given the regulatory, safety, and security 
significance of each operational requirement.
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    \2\ Certain activities, ordinarily conducted following fuel load 
and therefore considered ``operational requirements'' but which may 
be relied upon to support a Commission finding under 10 CFR 
52.103(g), may themselves be the subject of ITAAC to ensure their 
implementation prior to the 10 CFR 52.103(g) finding.
---------------------------------------------------------------------------

    Paragraph VI.C would allow the NRC to impose future operational 
requirements (distinct from design matters) on applicants who reference 
this design certification. Also, license conditions for portions of the 
plant within the scope of this design certification (e.g., start-up and 
power ascension testing), are not restricted by 10 CFR 52.63. The 
requirement to perform these testing programs is contained in Tier 1 
information. However, ITAAC cannot be specified for these subjects 
because the matters to be addressed in these license conditions cannot 
be verified prior to fuel load and operation, when the ITAAC are 
satisfied. Therefore, another regulatory vehicle is necessary to ensure 
that licensees comply with the matters contained in the license 
conditions