POLICY ISSUE 

NOTATION VOTE 

April 4, 2013 SECY-13-0033

FOR: The Commissioners 

FROM: R. W. Borchardt 

Executive Director for Operations 

SUBJECT: ALLOWING INTERIM OPERATION UNDER TITLE 10 OF THE CODE 

OF FEDERAL REGULATIONS SECTION 52.103 

PURPOSE: 

In response to the Staff Requirements Memorandum (SRM) dated May 11, 2012, on 

SECY-12-0030, “Final Rule: Requirements for Maintenance of Inspections, Tests, Analyses, 

and Acceptance Criteria [RIN 3150-A177],” dated February 23, 2012 (Agencywide Documents 

Access and Management System (ADAMS) Accession No. ML113390369) this paper informs 

the Commission of issues associated with interim operation while Inspections, Tests, Analyses, 

and Acceptance Criteria (ITAAC) hearings are pending. This paper also provides options on a 

policy matter related to interim operation under Title 10 of the Code of Federal Regulations 

(10 CFR) Section 52.103(c) “Operation under a combined license” and seeks Commission 

approval for the staff’s recommended option. This paper does not address any new 

commitments or resource implications. Concurrent with this paper, The Office of General 

Counsel (OGC) is transmitting a separate memorandum to the Commission regarding issues 

associated with interim operation. 

SUMMARY: 

Subpart C of 10 CFR Part 52 sets forth the process for issuing a combined license (COL) for a 

nuclear power facility. A COL authorizes both the construction of the facility and, subject to the 

satisfaction of conditions set forth in the COL, the operation of the facility. A COL includes 

ITAAC to ensure that the facility has been constructed and will be operated in accordance with 

CONTACT: Earl R. Libby, NRO/DARR 

 301-415-0522 
The Commissioners -2- 

the COL, the Atomic Energy Act of 1954, as amended (AEA), and U.S. Nuclear Regulatory 

Commission (NRC) rules and regulations. A licensee cannot operate the facility until the 

Commission finds, in accordance with AEA § 185b. and 10 CFR 52.103(g), that the acceptance 

criteria in the ITAAC are met. 

10 CFR 52.103 provides an opportunity for interested persons to request a hearing on the 

licensee’s conformance with the acceptance criteria in the ITAAC. The contention admissibility 

standards include a requirement that the petitioner show, prima facie, (1) that one or more of the 

acceptance criteria have not been or will not be met, and (2) that the specific operational 

consequences of nonconformance with the acceptance criteria would be contrary to reasonable 

assurance of adequate protection of the public health and safety. If the NRC grants the hearing 

request, the Commission must then determine whether interim operation may be allowed 

pending the completion of that hearing. The AEA and NRC regulations provide that interim 

operation shall be allowed if the Commission determines that there is reasonable assurance of 

adequate protection of the public health and safety during an interim period of operation. The 

term “interim operation” is used throughout this paper to describe that time during which the 

plant is operating pending the completion of a hearing granted under 10 CFR 52.103(c). 

This paper describes how adequate protection during interim operation is to be determined. As 

explained below, Congress did not intend that the Commission would rule on the merits of the 

petitioner’s prima facie showing when making this adequate protection determination. Instead, 

interim operation was intended for situations in which the petitioner’s prima facie showing 

relates to alleged safety consequences that will not arise during the interim operation allowed, 

or in which mitigation measures can be taken to preclude potential safety consequences during 

interim operation. This paper also presents options that the NRC may take in order to make the 

10 CFR 52.103(g) finding that the acceptance criteria in the ITAAC are met, regardless of the 

pendency of a hearing. For reasons described in this paper, the staff recommends that the 

Commission delegate to the staff the 10 CFR 52.103(g) finding that the acceptance criteria in 

the ITAAC are met. 

This paper also informs the Commission of four other matters related to interim operation. One, 

if interim operation is allowed, the staff intends to rely on the environmental evaluation of 

operational impacts performed in the COL Environmental Impact Statement (EIS) unless the 

approval of interim operation would present new and significant Information that calls for a 

separate environmental analysis. Two, for operational programs specified as being 

implemented on a 10 CFR 52.103(g) finding, these programs would also be implemented in the 

event that the Commission allows interim operation. Three, ITAAC maintenance activities 

would no longer be necessary or required after a 10 CFR 52.103(g) finding is made, regardless 

of the pendency of a hearing. Four, if a petition to modify the terms and conditions of the COL 

is received pursuant to 10 CFR 52.103(f), the review of this petition needs to be coordinated 

with decisions having the effect of allowing operation, including interim operation. 

BACKGROUND: 

On July 28, 2011, the Nuclear Energy Institute (NEI), in response to the staff’s request for 

comments on the proposed rule, “Requirements for Maintenance of Inspections, Tests, 

Analyses, and Acceptance Criteria” published in the Federal Register (FR) (76 FR 27925; 

May 13, 2011), recommended that the NRC revisit the proposed rule changes and 

supplementary information concerning 10 CFR 2.340(j), “Issuance of Finding on Acceptance 
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Criteria under 10 CFR 52.103.” NEI stated its belief that the staff, in developing this part of the 

rulemaking, may not have adequately considered the effect of 10 CFR 52.103(c), which allows a 

period of interim operation pending the completion of a hearing on one or more ITAAC provided 

there is reasonable assurance of adequate protection to the public health and safety. 

Specifically, NEI requested that the NRC clarify the relationship between the interim operation 

provision in 10 CFR 52.103(c) and the finding in 10 CFR 52.103(g) that the acceptance criteria 

in the COL are met. As explained in the final rule, “Requirements for Maintenance of 

Inspections, Tests, Analysis, and Acceptance Criteria” (77 FR 51882; August 28, 2012), the 

NRC disagreed with NEI’s comment because the relationship between 10 CFR 52.103(c) and 

(g) was outside the scope of the rulemaking, and AEA § 189a.(1)(B)(iii) clearly provides the 

Commission with the authority to allow interim operation while an ITAAC hearing proceeds. In 

SECY-12-0030, which forwarded the draft final rule to the Commission for its consideration, the 

staff stated it would provide the Commission with a future paper addressing issues associated 

with interim operation. In the SRM for SECY-12-0030 (SRM- M120511A), dated May 11, 2012 

(Accession No. ML121320208) the Commission directed the staff to proactively identify issues 

and bring them to the attention of the Commission, as full implementation of the ITAAC program 

and processes are carried out for the first time. Furthermore, the Commission stated that it 

looked forward to the staff’s paper addressing issues associated with an interim operation 

determination during a pending ITAAC hearing. This paper is the staff’s response to the SRM 

on SECY-12-0030. 

DISCUSSION: 

In accordance with AEA § 185b. and 10 CFR 52.97(b), ITAAC are included in a COL to be used 

to verify whether the facility has been constructed and will be operated in conformance with the 

license, the AEA, and NRC rules and regulations. Operation of the facility cannot begin until the 

Commission finds that the acceptance criteria for all ITAAC are met as required by 10 CFR 

52.103(g). Once that 10 CFR 52.103(g) finding is made, the licensee may proceed to the 

operational phase, which includes initial fuel load. In accordance with 10 CFR 52.103(h), the 

ITAAC no longer constitute regulatory requirements after the finding required by 10 CFR 

52.103(g) has been made. 

There is an opportunity for a hearing on conformance with the acceptance criteria, and the 

Federal Register notice of intended operation announcing this hearing opportunity must be 

published at least 180 days before scheduled initial fuel load. Among other things, a petitioner’s 

hearing request must, as mandated by AEA § 189a.(1)(B)(ii), contain a prima facie showing 

(1) that one or more of the acceptance criteria have not been or will not be met, and (2) that the 

specific operational consequences of nonconformance would be contrary to providing 

reasonable assurance of adequate protection of the public health and safety. If a hearing 

request is granted, AEA § 189a.(1)(B)(iii) provides that the Commission shall allow interim 

operation if it determines, after considering the petitioner’s prima facie showing and any 

answers thereto, that there will be reasonable assurance of adequate protection of the public 

health and safety during an interim period of operation. In accordance with 10 CFR 52.103(c), 

the Commission will make this determination acting as the presiding officer. 
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Interim Operation 

Interim operation is that time during which the plant is operating pending the completion of 

activities associated with a hearing granted under 10 CFR 52.103(c). There are two key issues 

associated with interim operation: (1) how adequate protection during interim operation is to be 

determined and (2) who will make the finding under 10 CFR 52.103(g) in support of interim 

operation. 

Determination of Adequate Protection During Interim Operation 

Section 52.103(c) states: 

If the Commission grants the [hearing] request, the Commission, acting as the 

presiding officer, shall determine whether during a period of interim operation 

there will be reasonable assurance of adequate protection to the public health 

and safety. The Commission’s determination must consider the petitioner’s 

prima facie showing and any answers thereto. If the Commission determines 

there is such reasonable assurance, it shall allow operation during an interim 

period under the combined license. 

A key question associated with interim operation is how the Commission could make the 

adequate protection determination allowing interim operation even though the petitioner has 

made a prima facie showing that operation is contrary to reasonable assurance of adequate 

protection of the public health and safety. The legislative history of the interim operation 

provision sheds light on Congressional intent. The interim operation language in the enacted 

statute is the result of an amendment made in the Senate to a previous version of the interim 

operation provision. In introducing this amendment and in explaining the amendment just 

before its adoption, Senator Johnston stated that the situation envisioned for interim operation is 

“where there is no question about the safe operation of the plant, but there might be, for 

example, a long term implication for safety” (138 Cong. Rec. S1143 (Feb. 6, 1992)). Senator 

Johnston gave the following explanation: 

The authority to allow interim operation is limited. It could be used where, 

although a petitioner has raised a question about the long-term safety of the plant 

and the NRC has decided a hearing on the issue is warranted, the NRC is able to 

determine that the plant is safe to operate during an interim period. This could 

occur, for example, where the safety problem will not occur for several years or 

where mitigating measures can be taken to avoid the problem during a period of 

interim operation. 

(138 Cong. Rec. S1173 (Feb. 6, 1992)). Therefore, Congress did not intend that the 

Commission would rule on the merits of the petitioner’s prima facie showing. Instead, interim 

operation was intended for situations in which the petitioner’s prima facie showing relates to 

alleged safety consequences that will not arise during the interim operation allowed, or in which 

mitigation measures can be taken to preclude potential safety consequences during interim 

operation. These mitigation measures could be addressed in the answers to the hearing 

request, since both the petitioner’s prima facie showing and the answers filed in response to the 

petition must be considered in making the interim operation determination. The Commission’s 

decision allowing interim operation could be appropriately limited or conditioned to ensure that 
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there will be reasonable assurance of adequate protection of the public health and safety during 

interim operation notwithstanding the petitioner’s prima facie showing. 

In its answer to the hearing request, the staff would address whether the petitioner’s prima facie

showing has been made, as well as whether the other standing and contention admissibility 

requirements of 10 CFR 2.309, “Hearing Requests, Petitions to Intervene, Requirements for 

Standing, and Contentions,” have been satisfied. Participating as a party would allow the staff 

to actively contribute to the development of the hearing record on contested issues, but this 

would preclude the staff from advising the Commission on contested issues, including the 

10 CFR 52.103(c) adequate protection determination on interim operation. Therefore, the 

Commission may want to designate specific staff as Commission adjudicatory employees to 

provide technical support to the Commission on contested issues, especially the determination 

on whether there will be reasonable assurance of adequate protection of the public health and 

safety during interim operation. 

Relationship Between the 10 CFR 52.103(g) Finding and the 10 CFR 52.103(c) Interim 

Operation Determination 

The second key issue associated with interim operation concerns the requirement that operation 

not begin until the Commission finds under 10 CFR 52.103(g) that the acceptance criteria in the 

ITAAC are met. Because interim operation involves operation during the pendency of an ITAAC 

hearing, making the 52.103(g) finding in support of a decision allowing interim operation 

involves making a pre-hearing finding that the acceptance criteria that are the subject of the 

contested hearing are met. The staff considered various scenarios to address how a 10 CFR 

52.103(g) finding could be made, both within and outside of the hearing context, but only two 

options merited further evaluation. 

The Staff evaluated two options for making the 52.103(g) finding in support of a decision 

allowing interim operation: 

1. The first option is that the Commission makes the 10 CFR 52.103(g) finding on all 

acceptance criteria. In the context of a 10 CFR 52.103(g) finding in support of interim 

operation, this option would require the Commission to find that the contested 

acceptance criteria are met prior to the completion of the hearing. 

2. The second option is that the Commission delegates the 10 CFR 52.103(g) finding on all 

acceptance criteria to the staff, whether there is a hearing pending or not. This option 

allows the finding to be made by the staff based on the staff’s inspection activities and its 

review of ITAAC notifications received from the licensee. The staff’s determination that 

all ITAAC acceptance criteria are met will be communicated to the Commission with a 

paper to that effect before the staff would issue a 10 CFR 52.103(g) finding. 

 

In both options, the Commission would determine under 10 CFR 52.103(c) whether there is 

reasonable assurance of adequate protection of the public health and safety during a period of 

interim operation. 

The staff recommends that the Commission approve the second option delegating the 10 CFR 

52.103(g) finding to the staff. Given the Commission’s role as the ultimate arbiter of contested 

issues in NRC adjudications, practical difficulties would arise if the Commission itself were to 
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make the 10 CFR 52.103(g) finding prior to the completion of the hearing, as discussed in the 

OGC memorandum transmitted concurrently with this paper. Delegation of the 10 CFR 

52.103(g) finding to the staff would avoid these practical difficulties. The possibility that the 

Commission might delegate the 10 CFR 52.103(g) finding to the staff is at present recognized in 

the regulations at 10 CFR 2.340(j), “Issuance of finding on acceptance criteria under 10 CFR 

52.103,” which states that “The Commission, the Director of the Office of New Reactors, or the 

Director of the Office of Nuclear Reactor Regulation, as appropriate, shall make the finding 

under 10 CFR 52.103(g) that acceptance criteria in a combined license are met....” The basis 

for the staff making the 10 CFR 52.103(g) acceptance criteria finding is that the 10 CFR 

52.103(g) finding is the culmination of the staff’s construction inspection program and ITAAC 

notification reviews. There are several current examples from Commission practice which 

support the delegation of the 10 CFR 52.103(g) acceptance criteria finding to the Office of New 

Reactors (NRO). One example is the COL, which governs both construction and operation and 

is issued by the NRO Office Director. Furthermore, the 52.103(g) finding is comparable to 

10 CFR Part 50 “Domestic Licensing of Production and Utilization Facilities,” operating licenses 

which authorize operation and are issued by the Director of the Office of Nuclear Reactor 

Regulation (NRR). A recent additional supporting example is the action taken by NRR 

pertaining to the restart of North Anna Power Station Units 1 and 2 (Accession No. 

ML11308B405) following the August 2011 earthquake, in which the NRR Office Director 

concluded that the licensee had demonstrated that there was no functional damage to those 

features necessary for continued operation of the North Anna units, a conclusion required by 

10 CFR Part 100, Appendix A before the resumption of operation. 

In implementing this option, the staff intends to inform the Commission of the staff’s 

determination that all acceptance criteria are met prior to the staff making the finding under 

10 CFR 52.103(g). The staff’s 52.103(g) finding would be based on the ITAAC-related 

inspection activities performed during construction and the staff’s independent ITAAC closure 

verification activities, which would be summarized in a basis document to be enclosed with a 

paper to the Commission. The basis document would describe the ITAAC construction 

inspection and closure verification processes and will reference information pertaining to the 

verification of completion of all ITAAC for a specific COL. In addition to the staff’s inspection 

activities, the staff relies on the licensee’s submittals in accordance with: 

(1) 10 CFR 52.99(c)(1), which requires the licensee to submit for every ITAAC a notification 

containing sufficient information to demonstrate that the ITAAC was successfully 

completed; 

(2) 10 CFR 52.99(c)(2), which requires the licensee to report new information materially 

altering the basis for determining either that the inspections, tests, and analyses were 

performed as required or that the acceptance criteria are met; and 

(3) 10 CFR 52.99(c)(4), which requires the licensee to notify the NRC that all ITAAC are 

complete. 

Whether or not the Commission delegates the 10 CFR 52.103(g) finding to the staff or decides 

that the Commission, itself, should make the 10 CFR 52.103(g) finding based on a 

recommendation from the staff, the staff will work to ensure that the NRC is able to make a 

timely 10 CFR 52.103(g) finding allowing operation. 
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In addition to the key issues described above, this paper also informs the Commission of four 

other matters related to interim operation: (1) environmental reviews of decisions allowing 

interim operation, (2) operational program implementation during interim operation, (3) ITAAC 

maintenance requirements during interim operation, and (4) receipt of a petition under 10 CFR 

52.103(f) to modify the terms and conditions of the combined license. These matters are 

described more fully below. 

Environmental Review of Decisions Allowing Interim Operation

In 2007 the Commission determined through rulemaking that the 10 CFR 52.103(g) finding can 

be categorically excluded from NEPA review and added 10 CFR 51.22(c)(23) to reflect this 

determination. The Commission stated that it never intended to make an environmental finding 

with respect to the 10 CFR 52.103(g) finding and that NEPA does not require such an 

environmental finding. The Commission justified categorically excluding the 10 CFR 52.103(g) 

finding on the basis that (1) the major Federal action with respect to facility operation is the 

issuance of the COL, because the COL authorizes both construction and operation subject to 

successful completion of the ITAAC; (2) the environmental effects of construction and operation 

are evaluated in the COL EIS; and (3) the 10 CFR 52.103(g) finding involves only a finding on 

whether the predetermined acceptance criteria are met (“Licenses, Certifications, and Approvals 

for Nuclear Power Plants” (72 FR 49428; Aug. 28, 2007)). However, NRC regulations do not 

explicitly address how the requirements of NEPA apply to decisions allowing interim operation. 

There are actions taken by the NRC for which no separate environmental review is required, but 

for which a categorical exclusion has not been established. For example, the Commission 

explained in the Shoreham Nuclear Power Station proceeding (CLI-84-9) that in the usual case 

no separate environmental analysis is needed to issue a low-power operating license, because 

the low-power license is simply an intermediate step to the full-power license, and the 

environmental evaluation for low-power operation is inherently included within the EIS for 

full-power operation. The Commission further explained that it is well-established NEPA law 

that separate environmental statements are not required for such intermediate, implementing 

steps where an EIS has been prepared for the entire proposed action. In the underlying 

precedent cited by the Commission in CLI-84-9, no new or supplemental EIS was considered 

necessary because the later implementing action did not involve any significant environmental 

impacts that were not identified and described in the previous EIS. 

Consistent with the Commission’s reasoning in Shoreham and the precedent cited therein, a 

decision allowing interim operation is an intermediate step implementing the COL’s 

authorization of construction and operation, and thus the Commission does not need to perform 

a separate environmental review of a decision allowing interim operation where the 

environmental impacts of interim operation do not significantly differ from the impacts described 

in the COL EIS. This is also consistent with the Commission’s basis for categorically excluding 

the 10 CFR 52.103(g) finding, because the COL is the major Federal action authorizing 

construction and operation, and the COL EIS describes the environmental impacts of both 

construction and operation. 

Based on the considerations discussed above, the staff intends to rely on the COL EIS 

environmental evaluation unless the approval of interim operation would present new and 

significant information that calls for a supplemental environmental evaluation. The NRC could 

make this determination on a case-by-case basis. Based on the nature of interim operation, the 
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staff believes that it would be unusual for the approval of interim operation to result in impacts 

that differ significantly from the impacts described in the COL EIS. Instead, the environmental 

impacts from interim operation will likely be bounded by the COL EIS environmental evaluation. 

Operational Program Implementation During Interim Operation

In their final safety analysis reports (FSARs), licensees describe the operational programs that 

must be implemented before or during operation. The regulatory approach to operational 

programs and their implementation was previously established in SECY-05-0197, “Review of 

Operational Programs in a Combined License Application and Generic Emergency Planning 

Inspections, Tests, Analyses, and Acceptance Criteria,” dated October 28, 2005, and approved 

by the Commission in SRM-SECY-05-0197, dated February 22, 2006. Operational programs 

considered in SECY-05-0197 include such programs as the fire protection, radiation protection, 

reactor operator training, fitness for duty, security, initial test, and maintenance rule programs. 

Operational program implementation is either specified by regulation or included as a condition 

in the license. In addition, plant operation is governed by operational requirements such as 

technical specifications. For operational programs and requirements specified as being 

implemented on a 10 CFR 52.103(g) finding, these programs and requirements would also be 

implemented in the event that the Commission allows interim operation in accordance with 

10 CFR 52.103(c), given that the 10 CFR 52.103(g) finding would be made in support of interim 

operation. A Commission decision allowing interim operation should make it clear that these 

programs must be implemented. Operational programs and requirements establish specific 

operability and surveillance requirements for structures, systems, and components that would 

remain in effect for the licensed period of operation. 

ITAAC Maintenance During Interim Operation

With respect to ITAAC maintenance, 10 CFR 52.99(c)(2) provides that ITAAC post-closure 

notifications are only required until the 10 CFR 52.103(g) finding is made. In addition, 

10 CFR 52.103(h) provides that ITAAC no longer constitute regulatory requirements after the 

10 CFR 52.103(g) finding. Therefore, ITAAC maintenance activities and associated ITAAC 

post-closure notifications would no longer be necessary or required after a 10 CFR 52.103(g) 

finding, including during interim operation. 

Receipt of a Petition Under 10 CFR 52.103(f) to Modify the Terms and Conditions of a License

In addition to hearing requests on conformance with the ITAAC acceptance criteria, members of 

the public also may submit a petition to modify the terms and conditions of the COL in 

accordance with 10 CFR 52.103(f). Such a petition might be submitted, for example, if a 

member of the public wants to raise an issue outside the scope of the ITAAC or to dispute the 

adequacy of the ITAAC, itself. Such petitions shall be filed with the Secretary of the 

Commission and processed in accordance with 10 CFR 2.206, “Requests for Action under this 

Subpart.” Furthermore, 10 CFR 52.103(f) provides that before the licensed activity purportedly 

affected by the petition begins, the Commission will determine whether any immediate action is 

required. For this reason, the NRC’s review of petitions under 10 CFR 52.103(f) needs to be 

coordinated with decisions having the effect of allowing operation; this would include interim 

operation. Section 52.103(f) also provides that if the petition is granted, an appropriate order 

will be issued, but the granting of a petition will not affect fuel loading and operation unless the 

order is made immediately effective. 
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RECOMMENDATION: 

The staff recommends that the Commission delegate to the staff the making of the 10 CFR 

52.103(g) acceptance criteria finding for all ITAAC, whether there is a hearing pending or not. 

COORDINATION: 

OGC has reviewed this paper and has no legal objection. Concurrent with this paper, OGC is 

transmitting a separate memorandum to the Commission regarding issues associated with 

interim operation. 

 /RA/ 

R. W. Borchardt 

Executive Director 

 for Operations 
The Commissioners -9- 

RECOMMENDATION: 

The staff recommends that the Commission delegate to the staff the making of the 10 CFR 

52.103(g) acceptance criteria finding for all ITAAC, whether there is a hearing pending or not. 

COORDINATION: 

OGC has reviewed this paper and has no legal objection. Concurrent with this paper, OGC is 

transmitting a separate memorandum to the Commission regarding issues associated with 

interim operation. 

 /RA/ 

R. W. Borchardt 

Executive Director 

 for Operations 

ADAMS Accession No.: ML12289A928 SECY-012

OFFICE NRO/DARR/APOB NRO/DARR/APOB NRO/DARR/APOB NRO/DCIP/CITB NRO/DCIP 

NAME ELibby BAbeywickrama ACubbage MKowal 

LDudes 

(via e-mail) 

DATE 03/07/2013 03/07/13 03/07/13 03/07/13 03/07/13 

OFFICE NRO/DSEA NRO/DARR NRO/DNRL RII/DRA QTE 

NAME 

SFlanders 

(via e-mail) 

MMayfield 

(SCoffin for via e-mail) 

DMatthews 

(via e-mail) 

FBrown 

(JYerokum for via e-mail)

CHsu 

(via email) 

DATE 03/07/13 03/07/13 03/07/13 03/07/13 03/13/13 

OFFICE OGC NRO EDO 

NAME 

MSpencer 

(via email) GTracy RBorchardt 

DATE 03/26/13 (NLO) 03/27/13 04/04/13 

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