Part of a Special Section covering the Nuclear Construction Summit USA 2009, October 26-27 – Washington DC
The Nuclear Construction Summit, USA 2009 was attended by professionals who finance, plan and develop next nuclear projects. Professionals delivered information that will form blueprints for successful financing and construction risk assessment and management at every phase of the construction cycle. From government and regulatory bodies to operator insight and in-depth contractor experience.
- Presented by Antonio Fernández, Senior Attorney, Florida Power & Light Company –
The attached pdf presentation from the NCS meeting details the Federal Licensing Process for New Nuclear Plants
AGENDA
• Nuclear Power - Statutory and Regulatory Overview
• New Nuclear Plant Licensing Process
• Licensing Issues
The U.S. Nuclear Regulatory Commission
• Commercial nuclear activities in the U.S. are regulated by the U.S. Nuclear Regulatory Commission
• NRC is headed by a 5-member commission and run by a technical staff of 3000
– President designates Chairman. President appoints members with advice and consent of Senate to serve 5 year terms
– NRC is an independent regulatory agency
– Not part of executive branch, does not report to the President
– NRC derives its authority solely from statutes enacted by Congress and ultimately answers to Congress
U.S. Nuclear Regulatory Commission Statutory Authority
• Atomic Energy Act of 1954, as amended
– Gives NRC broad authority to regulate nuclear power facilities to protect the public health and safety and the common defense and security – not a promotional function
• Siegel v. AEC, 400 F.2d 778, 782 (D.C. Cir. 1968)
• Baltimore Gas & Electric v. NRDC, 462 U.S. 87 (1983)
• Vermont Yankee v. NRDC, 435 U.S. 519 (1978)
– Requires a license prior to possession of radioactive material and operation of a nuclear plant
– Standard for granting license – “adequate protection”
• Zero Risk not required
– Courts unanimously defer to NRC’s technical expertise in determining whether “adequate protection” exists
– NRC has virtually unbounded authority to take action if it believes that adequate protection of public health and safety is threatened, without regard to cost
– Authority preempts any state regulation of commercial nuclear energy
• Northern States Power Co. v. Minnesota, 447 F.2d 1143, 1153-54 (8th Cir. 1971), aff'd, 405 U.S. 1035 (1972); Pacific Gas & Elec. Co. v. State Energy Conservation and Dev. Comm’n, 461 U.S. 190, 208 (1983)
– Certain regulatory functions can be relinquished to state
• Energy Reorganization Act of 1974, as amended
– Provides protection for employees who raise nuclear safety concerns
– Requires reporting of plant defects
• Nuclear Waste Policy Act of 1982, as amended
– Defines obligations for disposal of spent nuclear fuel by the U.S. Government
– Defines licensing standards for national spent fuel repository
• National Environmental Policy Act
– Requires NRC environmental reviews of major licensing actions
NRC Adjudicatory Process
• Section 189 of Atomic Energy Act requires NRC to hold mandatory adjudicatory hearings in certain cases, and to provide hearing opportunities in certain cases.
• Mandatory Adjudicatory Hearings
– Construction Permit
– Early Site Permit Application
– Combined License Application
• Opportunities for Adjudicatory Hearings
– License Amendments
– License Renewal Applications
• NRC handles other proceedings by notice and comment rulemaking
– Reactor Design Certification
– Spent Fuel Cask Certification
– Issuance of new and amended Regulations
• If a hearing is held, NRC’s Atomic Safety & Licensing Board (3 administrative law judge panel) presides.
• Intervenors must demonstrate standing and plead at least 1 contention that meets NRC admissibility requirements.
• ASLB historically have been very lenient in enforcing NRC’s rules of practice and hearings have been lengthy.
• Practice improved in license renewal proceedings
– Result of Congressional and Commission attention to issues
New Nuclear Plant Licensing and Construction NRC’s Former Approach to the Licensing of New Reactors
• Existing fleet of nuclear power plants were licensed under two-step process described in 10 CFR Part 50
• This process requires both a construction permit (CP) and an operating license (OL)
• Under the two-step licensing process, a mandatory hearing is held before a CP is issued for a new nuclear power plant. Interested parties may intervene
• As plant construction approaches completion, the owner must file an application for an operating license (OL)
• A hearing is not mandatory at the OL stage, but plant opponents sought one in virtually every case
New Nuclear Plant Licensing and Construction NRC’s Former Approach to the Licensing of New Reactors
• Two-step licensing process broke down after Three Mile Island accident in 1979
– After TMI new plants faced heavily contested hearings to obtain an operating license
– Plants under construction had to be redesigned to address lessons learned from TMI, at significant cost
– Increased NRC scrutiny lead to massive reinspections, rework,and plant cancellations
– The results of the changed environment included:
• Delays as long as a decade
• Massive cost overruns
• Punitive “prudence” proceedings before PUCs
• Litigation between participants (e.g., utilities v. vendors)
• No new plant orders
Nuclear Economics – Cost Overruns Brought Down Utilities
“Beleaguered by the controversy surrounding the Seabrook nuclear power plant, the Public Service
Company of New Hampshire filed for bankruptcy protection yesterday, the first major public utility to
take that step since the Depression.”
New York Times – January 28, 1988
“The NRC yesterday approved the transfer of the Shoreham nuclear plant from its builder, LILCO, to
the Long Island Power Authority, which plans to dismantle it. The approval is a postscript to a 25 -
year saga of tooth-and-nail combat between LILCO, which spent $5.5 billion to build the plant, and
opponents who swore from the start that it would never run.”
New York Times – February 27, 1992
"WPPSS once ambitious plan to build five nuclear power plants in Washington state collapsed into
what was then the largest municipal bond default in history - $2.25 billion. A ratepayers revolt swept
across the region as the $25 billion price tag for the plants skyrocketed. Only one of the five plants
was ever finished. The others were abandoned. Ratepayers are still paying for the unfinished
ones."
Bellingham (Washington) Herald, June 14, 2009
NRC’s Current Approach to New Reactor Licensing
• In 1989, following amendments to the Atomic Energy Act, the NRC issued regulations (10 CFR 52) that allow parties seeking to license new reactors to apply for a single, combined construction/operating license (COL)
– Upheld in Nuclear Information Resource Service v. NRC, 969 F.2d 1169 (D.C. Cir. 1992)
• One phase that can be pursued in advance of the filing of the COLapplication is an “early site permit” (ESP) for the intended location of the facility
• Another phase that can be pursued in advance of filing the COL application is the NRC’s certification of the reactor design
• These phases can be undertaken consecutively or overlap
Early Site Permits
• Site Characterization and Suitability
– Addresses the “ologies” to define site characteristics and releases due to postulated events
– Need to show no impediments to security
– Need to show that implementation of emergency preparedness plan is feasible
• Environmental Review
– Need not address need for power, alternative energy sources, etc. – but those have to be addressed in COLA anyway
• ESPs issued by NRC for Clinton, Grand Gulf, North Anna and Vogtle sites
– ESP pending for Vogtle site
– ESPs are valid for up to 20 years and can be renewed for up to 20 years
Design Certification Process
• The reactor design certification process is intended to facilitate the development of new reactors by resolving design issues prior to construction
• The design certification process involves three sets of activities:
– Pre-application review of a proposed new design
– Final design approval by the NRC staff
– Notice and Comment Rulemaking to certify the reactor’s standard design, known as “final design certification”
• Whatever portion of the design has undergone final design certification is not subject to examination or challenge in the COL application review process
• Current Design Certifications
– Westinghouse AP1000 has been certified
– Certification applications are pending for GE, Areva, and Mitsubishi advanced reactor designs
Combined Construction/Operating License Application
• A COLA may reference an ESP and/or a certified design
• If the COLA does not reference an ESP or a certified design, it must contain the information that would have been provided in the ESP and design certification proceedings
• The COLA must include or reference essentially the same information as is required of an application for an OL under the previous process, plus a detailed set of inspections, tests, analyses and acceptance criteria (ITAAC) needed to verify that the facility, as constructed, meets the design specifications
Combined Construction/Operating License Application
The COLA must describe:
• The identity and financial/technical qualifications of the owner and operator
• All FSAR information that is site-specific (if no ESP)
• The detailed design of the plant (to the extent not certified)
• All operational programs
• Decommissioning funding assurance plan
• Integrated plans for addressing radiological emergencies at the facility, unless provided in the ESP application
• Physical security plan
• The Inspections, Tests, Analysis, and Acceptance Criteria (ITAAC)needed to verify that the facility, as constructed, meets the design requirements and is in conformance with the COL once it is granted
Combined Operating License Process
• Submission of Combined Construction and Operating License Application (COLA)
• NRC Staff Acceptance Review (60 days)
• Docketing of Application
• Notice of Hearing (within 60 days of docketing)
• Petitions to Intervene and Proposed Contentions for Litigation due within 60 days of Notice of Hearing
• Atomic Safety and Licensing Board appointed to rule on Petitions to Intervene
• NRC Staff Completes Safety Evaluation Report (SER) and Issues Draft SER with Open Items
• NRC Staff Completes and Issues Draft EIS
• Motions for Summary Disposition of Admitted Contentions
• NRC Staff Issues SER and Final EIS
• Hearing on any Admitted Contentions not Resolved by Summary Disposition or Settlement
• Decision on Admitted Contentions Mandatory Hearing
• COL Issued (Process Estimated by Commission to take 42 Months from COLA Docketing)
• Construction
• Applicant Demonstrates Compliance with Inspections, Tests, Analyses, and Acceptance Criteria (ITAAC)
• ITAAC Hearing(s)
• Decision by Commission
• Final COL with Authority to Operate Issued
Combined Construction/Operating License Application Hearings
• There is a mandatory public licensing hearing on the COLA
• The Federal Register notice of docketing of the COLA alerts interested parties that they may file petitions to intervene at the hearing and propound contentions (legal and/or factual concerns alleging deficiencies in the COLA)
• An Atomic Safety and Licensing Board (ASLB), typically comprised of one lawyer as chairman and two technical members, is appointed by the NRC to conduct the hearing and rule on petitions to intervene and proposed contentions
• The Applicant and the NRC Staff have the opportunity to respond to petitions to intervene
• The ASLB will rule on petitions to intervene and, if any intervenor contentions are found admissible, they are added to the scope of the hearing
• Intervenors are admitted as parties only if they have raised at least one admissible contention
• States and local authorities are allowed to participate at the hearing without needing to raise contentions
• NRC Staff in most cases chooses to be a party
Combined Operating Licensing Process Advantages
• One application, one mandatory hearing instead of two (but a post-construction hearing is possible)
• Referencing a certified design eliminates review and potential litigation of many design and safety issues, except those that are site-specific
• Obtaining an ESP resolves environmental issues relating to the plant site (but environmental data updates may cause reopening of issues)
• Applicants can also proceed outside the COLA by seeking a limited work authorization (LWA)
• LWA application may be filed up to 18 months before the COLA; the two applications are processed in parallel
• Whether an LWA makes sense for a project depends on several factors including plant construction schedule
COL Risks/Unknowns
• Combined Operating License process untested legally
• Discussions on ITAAC issues continue between industry and NRC
– Significant issues regarding level of detail, need for programmatic ITAAC still unresolved
• Potential intervenor challenges to whether plant construction complies with ITAAC present significant licensing risks
– Such challenges can be filed as late as 120 days prior to fuel load
• Questions remain regarding whether NRC can efficiently process a contested adjudicatory proceeding
– Private Fuel Storage, Louisiana Energy Services examples of undisciplined and untimely NRC adjudicatory proceedings
– Other examples abound in reactor licensing context (Shoreham, Seabrook, Comanche Peak)
Significant Licensing Issues for New Nuclear Plants
• Waste
• Water Use
• Emergency Planning
• Security
– Cyber Security
– Aircraft Crashes
Click here for the entire presentation in pdf of Federal Licensing Process for New Nuclear Plants