POLICY ISSUE 

NOTATION VOTE 

May 4, 2012 SECY-12-0069

FOR: The Commissioners 

FROM: R. W. Borchardt 

 Executive Director for Operations 

SUBJECT: PROCESS FOR ADDRESSING LATE-BREAKING ISSUES 

DURING A COMBINED LICENSE APPLICATION REVIEW 

PURPOSE: 

The purpose of this paper is to provide the Commission with recommendations regarding the 

U.S. Nuclear Regulatory Commission’s (NRC’s) process for addressing post-Fukushima or 

other late-breaking issues that could impact the findings in Title 10 of the Code of Federal 

Regulations (10 CFR) 52.97, “Issuance of combined licenses” during a combined license (COL) 

application review. This paper does not address any new commitments or resource 

implications. 

SUMMARY: 

Within the current COL licensing process, there are three approaches for issuing a COL when 

addressing post-Fukushima or other late-breaking issues that could impact the findings in 

10 CFR 52.97. Approach 1 is the current COL licensing process, Approach 2 is the license 

condition process, and Approach 3 is the post-COL order issuance process, which amends an 

already issued COL. The staff recommends following Approach 1 (the current COL licensing 

process – status quo) for addressing issues that arise prior to the staff issuing its Commission 

paper (SECY) providing the staff’s testimony for the uncontested hearing.1

 This approach is 

predictable, follows Commission procedures, provides a clear basis to make findings necessary 

for decisions on the COL, and is proven through the staff’s use in similar situations when issues 

CONTACTS: R. Frederick Schofer, NRO/DARR 

 301-415-5682

 

1

 Under the Commission’s Internal Procedures, the staff’s SECY paper is to be issued “concurrently” 

with the issuance of the latter of the FSER or FEIS. 
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arise late in the licensing process. For issues that arise after issuance of the SECY, the staff 

recommends addressing those issues on a case-by-case basis. The staff will provide specific 

recommendations to the Commission on how to treat those issues via a Commission notification 

as part of the uncontested hearing. 

This paper also addresses the legal and policy implications of using a general license condition 

to require future compliance with all applicable regulations and orders promulgated after the 

date of issuance of the COL related to Fukushima. Such a condition would be in addition to 

Approaches 1 through 3 and would not be an alternative to them. While Commission precedent 

does allow such a condition, there are difficulties. Specifically a sufficient basis must be 

supplied for such a condition, the condition must be specific enough so that the determination 

whether it is met is ministerial, and the staff must be able to make the findings in 10 CFR 52.97 

prior to issuance of the COL. 

Staff will continue to request COL applicants to provide the information required by the issued 

orders and request for information letters through the review process. In addition, the staff will 

proceed with the review of the Levy County COL application. Upon receipt of the Commission’s 

direction in response to this paper, the staff will notify the Commission of any needed changes 

to the Levy schedule. The staff intends to implement the Commission–directed approach when 

addressing future late-breaking issues. 

BACKGROUND: 

As of March 2011, the NRC had several COL applications under various stages of review 

although no COLs had yet been issued. The COL application most advanced in the licensing 

process was Southern Company’s application for the proposed addition of two new units at its 

Vogtle site in Georgia. The staff’s advanced safety evaluation report (SER) for the Vogtle COL 

application was issued in December 2010. Finalization of this advanced SER (i.e., the Final 

Safety Evaluation Report (FSER)) awaited only staff approval of an amendment of the AP1000 

certified design, which Southern Company referenced in its Vogtle COL application. An 

amendment of the AP1000 certified design was also under review at that time, with the FSER 

for the Vogtle COL application expected in late fall 2011. The next most advanced COL 

application in the licensing process was South Carolina Electric & Gas Company’s (SCE&G) 

application for the proposed addition of two new units at its V.C. Summer site in South Carolina. 

The Summer COL application also referenced the amended AP1000 certified design. Following 

the Vogtle and Summer COL applications in the licensing schedule was the Levy County COL 

application to build two AP1000 units at a new site in Levy County, Florida, which also 

referenced the amended AP1000 certified design. 

On March 11, 2011, a magnitude 9.0 earthquake struck off the coast of the Japanese island of 

Honshu. The earthquake resulted in a large tsunami that is estimated to have exceeded 

14 meters (45 feet) in height, which inundated the Fukushima Dai-ichi Nuclear Power Plant site. 

The earthquake and tsunami produced widespread devastation across northeastern Japan, and 

significantly affected the infrastructure and industry in the northeastern coastal areas of Japan. 

In the days following the Fukushima Dai-ichi nuclear accident in Japan, the NRC Chairman 

directed the staff to establish a senior-level agency task force to conduct a methodical and 

systematic review of the NRC's processes and regulations to determine whether the agency 

should make additional improvements to its regulatory system and to make recommendations to 

the Commission for its policy direction. This direction was provided in a tasking memorandum 

dated March 23, 2011, from the NRC Chairman to the NRC Executive Director for Operations 
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(COMGBJ-11-0002). The following provides a timeline for how the significant policy and 

technical issues from the Fukushima accident relevant to the COLs under review were 

addressed. 

The Fukushima Near-Term Task Force (NTTF) completed the near-term review required by the 

Chairman’s tasking memorandum of March 23, 2011 (COMGBJ-11-0002) and documented its 

recommendations for agency actions in SECY-11-0093, “Near-Term Report and 

Recommendations for Agency Actions Following the Events in Japan,” dated July 12, 2011. 

Included in this report was the NTTF’s consideration of the applicability and implementation 

strategy of these recommendations for new reactors. The approaches recommended by the 

NTTF were issue specific, timing dependent, and subject to the maturity of the issue and the 

detail available regarding its resolution. 

With regard to near-term COL reviews, the staff discussed options in SECY-11-0110, “Staff 

Statement in Support of the Uncontested Hearing for Issuance of Combined Licenses and 

Limited Work Authorizations for Vogtle Electric Generating Plant (Vogtle), Units 3 and 4 (Docket 

Nos. 52-025 and 52-026),” dated August 9, 2011, and SECY-11-0115, “Staff Statement in 

Support of the Uncontested Hearing for Issuance of Combined Licenses for the Virgil C. 

Summer Nuclear Station (Summer), Units 2 and 3 (Docket Nos. 52-027 and 52-028),” dated 

August 19, 2011. In these papers, the staff stated that the Commission has options associated 

with a decision to proceed with licensing Summer and Vogtle in light of the recommendations 

from the NTTF. In SECY-11-0110, the staff stated the following: 

Prior to issuance of the COLs, the Commission could choose to adopt some or 

all of these recommendations and implement them in the COLs through license 

conditions. Alternatively, the Commission could issue the COLs and later modify, 

add, or delete any terms or conditions of the COLs to reflect any new 

Commission requirements in accordance with the regulatory provisions found in 

10 CFR 52.83, 52.98, and 50.109, depending on whether the conditions address 

matters within the scope of the referenced ESP [early site permit] or certified 

design. Under this approach, the criteria for implementation of any Commission 

decisions on the Task Force recommendations generally would be comparable 

for both the near-term COLs and for operating reactors. 

A similar statement was included in SECY-11-0115. 

In SECY-11-0124, “Recommended Actions To Be Taken Without Delay from the Near-Term 

Task Force Report,” dated September 9, 2011, the staff reviewed the NTTF recommendations 

within the context of the NRC’s existing framework and considered the various regulatory 

approaches available to the NRC to implement the recommendations. The staff also endorsed 

the NTTF recommended approach that should be taken for construction permit holders 

(including construction permits in active or deferred status such as Watts Bar Unit 2 and 

Bellefonte Units 1 and 2). The staff stated in SECY-11-0124 that “those operating license 

reviews and the licensing itself [new license reviews] should include all of the recommended 

regulatory actions and rule changes that have been completed at the time of licensing. Any 

additional rule changes would be imposed on the plants in the same manner as for other 

operating reactors.” 

The staff’s approach is to resolve issues as early as possible in the license review process. 

With respect to design certifications, in SECY-11-0137, “Prioritization of Recommended Actions 
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To Be Taken in Response to Fukushima Lessons Learned,” dated October 3, 2011, the staff 

stated the following: 

For new reactor designs currently under review, safety issues should be resolved 

at the design stage, to the extent practical. Consistent with the Commission 

policy encouraging standardization, it would be prudent to implement safety 

enhancements prior to certification or design certification renewal. As such, the 

staff intends to begin interactions with new reactor stakeholders in the near term 

to allow sufficient opportunity for design certification applicants and design 

certification renewal applicants to address recommended design-related safety 

enhancements prior to completion of the staff’s review. It should be noted that 

imposition of new requirements as part of a design certification renewal is 

governed by 10 CFR 52.59. The staff [has encouraged] reactor vendors to 

provide enhanced safety features and safety margins consistent with the 

Commission policy on advanced reactors. 

The NRC has held public meetings with new reactor stakeholders to discuss their proposals2

. 

The COLs for Vogtle were issued on February 10, 2012. Subsequently, in SECY-12-0025, 

“Proposed Orders and Requests for Information in Response to Lessons Learned from Japan’s 

March 11, 2011, Great Tohoku Earthquake and Tsunami,” dated February 17, 2012, the staff 

recommended issuing orders to the Vogtle licensees, and in the staff requirements 

memorandum (SRM) to SECY-12-0025, the Commission approved issuance of these orders 

with some modifications. On March 12, 2012, the NRC issued orders to modify the Vogtle 

COLs (Nuclear Power Facility (NPF)-91 and -92) with regard to reliable spent fuel pool 

instrumentation (Agencywide Documents Access and Management System (ADAMS) 

Accession No. ML12054A679) and requirements for mitigation strategies for 

beyond-design-basis external events (ADAMS Accession No. ML12054A735). As also 

discussed in SECY-12-0025 and the related SRM, requests for information pursuant to 

10 CFR 50.54(f), regarding Recommendation 9.3 of the NTTF review of insights from the 

Fukushima Dai-ichi accident, were submitted to Vogtle Units 3 and 4 on March 12, 2012 

(ADAMS Accession No. ML12073A348). 

Concurrent with SECY-12-0025, the staff filed with the Commission in the uncontested hearing 

proceeding for the Summer COL a notification stating that if the Commission agreed that the 

orders in SECY-12-0025 were necessary to ensure adequate protection of the public health and 

safety, then those orders should be included as license conditions in the Summer Units 2 and 3 

COLs. In the Commission’s Memorandum and Order authorizing the issuance of the Summer 

COLs (CLI-12-09), the Commission directed the staff to include in the Summer COLs a license 

condition requiring the development of mitigation strategies for beyond-design-basis external 

events. This license condition is based on Order EA-12-049, “Issuance of Order To Modify 

Licenses With Regard To Requirements For Mitigation Strategies For Beyond-Design-Basis 

External Events,” issued to the Vogtle COL licensee following the Commission’s SRM to 

SECY-12-0025 and was necessary for adequate protection. The Commission directed the 

Director of the Office of New Reactors to issue Order EA-12-063, “Order Modifying Licenses 

 

2

 Public meetings were held on December 7, 2011 (U.S. Evolutionary Power Reactor); 

February 7, 2012 (U.S. Advanced Pressurized-Water Reactor); and March 28, 2012 (South Texas 

Project 3 & 4 Advanced Boiling-Water Reactor). 
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with Regard to Reliable Spent Fuel Pool Instrumentation,” to SCE&G concurrent with the COL. 

Order EA-12-063 was issued pursuant to an administrative exemption from the Backfit Rule and 

the issue finality requirements in 10 CFR 52.63 and 10 CFR Part 52, Appendix D, 

paragraph VIII. In addition, the Commission directed the staff to issue a 10 CFR 50.54(f) 

request for information letter to SCE&G relative to NTTF Recommendation 9.3 regarding 

emergency preparedness, similar to that sent to the Vogtle COL licensee. 

In SECY-12-0025 the staff stated that it would “request all COL applicants to provide the 

information required by the orders and request for information letters ...through the review 

process.” Accordingly, for COL applications under active review, the staff has begun issuing 

requests for additional information (RAIs) to COL applicants asking them to address the 

recommendations in SECY-12-0025 that were approved by SRM-SECY-12-0025. The first of 

these RAI letters was submitted to Progress Energy Florida, Inc. (PEF) regarding the COL 

application for the Levy County Nuclear Power Plant, dated March 15, 2012 (ADAMS Accession 

No. ML120550146). 

This paper discusses three approaches that could be used by the staff when reviewing or 

amending a COL that addresses post-Fukushima or other late-breaking issues that impact the 

10 CFR 52.97 findings. The staff intends to implement the Commission–directed approach 

when addressing future late-breaking issues. 

DISCUSSION: 

As stated in 10 CFR 52.97(c), a COL “shall contain the terms and conditions...as the 

Commission deems necessary and appropriate.” Although the ability to impose license 

conditions on COLs to address newly arising issues can provide a mechanism for possible 

issuance of a COL, such license conditions cannot replace necessary safety findings and they 

must be specific and concrete. 

The staff stated the following in its response to posthearing questions in the Vogtle and Summer 

uncontested hearings: 

While Commission precedent does allow for reliance on license conditions, such 

conditions must be “precisely drawn so that the verification of compliance 

becomes a largely ministerial rather than an adjudicatory act.” See Private Fuel 

Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-00-13, 

52 NRC 23, 34 (2000). The Commission has further stated that “the mechanism 

of post-hearing resolution must not be employed to obviate the basic findings 

prerequisite to an operating license—including a reasonable assurance that the 

facility can be operated without endangering the health and safety of the public.” 

Consolidated Edison Co. (Indian Point Station, Unit 2), CLI-74-23, 7 AEC 947 

(1974). Thus, any license condition must be drafted in such a way that the 

means of compliance with it can be objectively determined at the time the license 

is issued. [Staff Post Hearing Responses, “NRC Staff’s Supplemental 

Responses and Post-Hearing Questions to the October 6, 2011 Commission 

Order (Oct. 17, 2011) (ADAMS Accession No. ML11290A298)]. 

As required by 10 CFR 52.97, “Issuance of Combined Licenses,” when considering whether to 

authorize issuance of a COL, the NRC is required to determine, among other things, that (1) the 

applicable regulations have been met, (2) there is reasonable assurance that these new 
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reactors will be constructed and will operate in conformity with NRC regulations, and 

(3) issuance of these licenses will not be inimical to the health and safety of the public. 

Further, the results of the staff’s review should be documented in the SER prior to providing the 

SECY paper in support of the mandatory hearing. Internal Commission Procedures dated 

May 12, 2011 (see http://www.nrc.gov/about-nrc/policy-making/internal.html), “Conduct of 

Mandatory Hearings on Applications for Combined Licenses,” state that the staff in its prefiled 

information paper, “(1) Address each of the findings in §§ 52.97(a) and 51.107(a), and provide 

an adequate basis for the Commission to conclude whether each of these findings can be 

made.” In order to meet this requirement the staff must have sufficient information to allow it to 

make the findings at the time it issues the SECY paper. The Commission procedures also state 

that the staff’s SECY paper in support of the uncontested hearing should summarize the staff’s 

review, and focus on non-routine matters or unique features of the facility. Therefore, to meet 

the plain language of the Internal Commission Procedures, the staff’s SECY paper should not 

introduce new review items, but should be a summary of the already completed staff review. 

APPROACHES: 

The approaches described below discuss the benefits and disadvantages of various licensing 

processes for addressing post-Fukushima or other late-breaking issues that could impact the 

findings in 10 CFR 52.97. The staff concludes that the approaches are consistent with the 

agency’s public health and safety objectives, and are all legally defensible. The staff expects 

that all licensees will comply with all applicable post-Fukushima requirements in a timely fashion 

independent of the regulatory vehicle (including imposition of a specific order or license 

condition, or promulgation of a generally applicable rule) chosen to implement new 

requirements arising from the review of the Fukushima accident. The mechanisms used have 

no bearing on the intended result—the imposition of binding requirements upon the affected 

licensees to provide reasonable assurance of adequate protection of the public health and 

safety. 

The approaches differ with respect to the openness, transparency, and predictability; the degree 

of stakeholder participation; the degree to which the staff’s evaluation is documented before the 

uncontested hearing; and the impact on licensing schedules. 

Approach 1—COL Licensing Process (Status Quo)

This is the current review process and is most readily supported from a legal and policy 

perspective. This approach would observe all of the agency’s procedures thereby resulting in 

documented staff findings in a safety evaluation report (SER) based on a transparent and 

predictable process. When new issues arise during a COL review, prior to issuance of the 

FSER, the staff engages with the applicant, which may include submitting an RAI to the 

applicant, based on the new information. Specifically for the NTTF recommendations, the staff 

would include the applicable requests for information addressed by the previously issued orders 

and 10 CFR 50.54(f) letters. In other situations, this is the approach the staff follows when 

reviewing late-breaking information prior to issuing the SER. For example, during the review of 

the Vogtle COLs, the staff issued RAIs very close to the scheduled SER issuance date 

regarding questions that arose during review of the licenses being issued under 10 CFR 

Parts 30, 40 and 70. Despite this information arising late in the review, the staff followed its 

normal process by issuing the RAIs, the applicant made changes to its final safety analysis 

report (FSAR), the staff reviewed these changes and documented its safety conclusions in its 
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FSER, and the staff was able to describe the resolution of these issues in detail in the SECY 

paper supporting the uncontested hearing. The resolution of some of these issues resulted in 

proposed license conditions following the normal review process. The basis for imposing these 

license conditions was documented in the FSER. 

This approach for addressing new requirements, including issuing RAIs, has the advantage of 

gathering input from the applicant, and allows the applicant to make changes to its licensing 

basis documents, such as the FSAR. The staff then reviews the applicant’s response and any 

associated FSAR changes. The staff’s current process also includes input from the Advisory 

Committee on Reactor Safeguards (ACRS). After the staff issues its SER, the ACRS in 

conformance with 10 CFR 52.87, “Referral to the Advisory Committee on Reactor Safeguards,” 

typically reviews the staff’s findings on applications for COLs; and the ACRS reports on those 

portions of the applications to the Commission. After the ACRS report, the SER is complete 

and the staff statement in support of the uncontested hearing can address each of the findings 

in 10 CFR 52.97(a) to provide an adequate basis for the Commission to conclude that the staff’s 

review has been sufficient to support each of the findings. Because the basis for the staff’s 

findings is in the SER, the staff’s SECY paper can follow the Internal Commission Procedures 

by summarizing the staff’s review. The staff need not introduce new information in the SECY 

paper that was not considered as part of the review, and the necessary basis to support any 

license condition will already be clearly specified in the SER. 

As the review of the remaining recommended actions associated with lessons learned from the 

Fukushima events is ongoing, other Fukushima-related requirements could be imposed at any 

time during the COL licensing process. As such, the timing of and the regulatory basis for a 

requirement could present a unique circumstance similar to the one presented with the Summer 

COL issuance and the two applicable Fukushima orders presented to Vogtle. During the period 

between issuance of the SECY and COL, the resolution of the issue would be addressed on a 

case-by-case basis. Once the staff has submitted its SECY paper in support of the uncontested 

hearing, the staff is under an obligation to notify the Commission if any new information arises 

that affects the staff’s findings. In these instances, as in the Summer uncontested hearing, the 

staff will prepare a Commission notification. In some instances the staff will recommend a 

license condition or order, but there may be situations where the staff finds a supplemental SER 

necessary. The staff’s final decision on the regulatory vehicle used will depend on the specific 

issue presented. 

The status quo COL licensing process has several benefits: 

• It provides a predictable and thorough licensing process that is open and transparent. 

• It resolves and documents issues, including new requirements, before the uncontested 

hearing begins and, for unique circumstances, when new requirements arise during the 

period between issuance of the SECY and the decision to issue the COL. 

• It allows the applicant to describe how it will handle the issue; which is part of the normal 

process and can provide insight. 

• It provides the agency with the ability to use an established process to determine the 

best suited regulatory tool necessary to support a reasonable assurance finding. For 
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example, certain design issues may be more appropriately resolved as an inspections, 

tests, analyses, and acceptance criteria (ITAAC). 

• It complies with existing agency procedures and processes including the Commission’s 

uncontested hearing procedures. 

The disadvantage of implementing the status quo approach is the following: 

• For late-breaking issues, this approach can delay the issuance of the staff’s FSER and 

SECY, and thus delay the start of the uncontested hearing. 

In summary, this approach is consistent with the staff’s licensing process and has the best 

alignment with the principles of regulatory consistency and transparency. However, this 

approach may delay the staff’s SER and SECY paper, and thus delay the start of the 

uncontested hearing and resultant COL decision. 

Approach 2—COL License Condition Process

This approach utilizes a process wherein license conditions are placed in the COL to address 

new issues that were not described in the applicant’s FSAR or the staff’s FSER. There are two 

options within Approach 2. One, the staff could provide a basis for implementing a license 

condition in its SECY paper supporting the uncontested hearing or in response to Commission 

questions at the uncontested hearing, or two, (as was done for the Summer COL proceeding) 

the Commission could impose the condition in its decision on the uncontested hearing. 

The COL license condition process for addressing new requirements has some benefits: 

• Approach 2 achieves an equivalent measure of safety as Approach 1. 

• It is expeditious. 

There are generally fewer regulatory and administrative requirements to follow in imposing 

license conditions BEFORE issuing a license versus imposing similar requirements AFTER a 

license is issued. For example, after the license is issued, any new requirement must meet the 

backfit and finality requirements in 10 CFR 50.109, 10 CFR 52.63, and 10 CFR 52.983

. 

However, the COL application references a certified design, elements of the licensing basis 

have already been established and, as required by 10 CFR 52.63, the NRC would have to 

establish a regulatory basis for any change to the established design, prior to the COLs being 

issued. 

The disadvantages of implementing the COL license condition process are the following: 

• The staff’s FSER would not provide an evaluation of those issues before the 

uncontested hearing begins. 

 

3 In rare situations the Commission has chosen to administratively exempt itself from these backfit 

issue finality provisions. For more information on this approach, see the February 22, 2012, 

memorandum from Stephen G. Burns, General Counsel, to the Commissioners, “Post Fukushima 

Orders Under the Backfit Rule and Issue-Finality Provisions of 10 CFR Part 52.” 
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• The staff would not be following the Commission’s uncontested hearing procedures. 

• The approach would provide limited stakeholder engagement. 

While the license condition approach is viable, there is a concern that in order to develop robust 

license conditions, more information from the applicant may be needed and, in some cases, that 

information may not be available. Depending on the issue, a license condition developed 

without going through the normal review process described in Approach 1 may not meet the 

Commission’s requirements that license conditions be precisely drawn so that the verification of 

compliance becomes largely a ministerial act. Further, Approach 2 is less desirable than 

Approach 1 because it shifts the burden for an acceptable solution from the applicant to the 

NRC, and the proof of the acceptability of the licensee’s implementation to the NRC’s inspection 

and enforcement process. 

In summary, this approach will likely proceed more quickly than in Approach 1 assuming that 

sufficient information is known to draft a legally defensible license condition. The primary 

drawbacks are that under this approach (1) the staff’s basis for recommending issuance of the 

COL will not be found in any of the staff’s review documents, (2) the applicant will not have 

had a chance to make any changes to its licensing basis, and (3) this approach appears 

inconsistent with the Internal Commission Procedures because the staff may no longer be 

summarizing its full review in the SECY paper. 

If the Commission chooses this approach, the staff recommends that, at a minimum, COL 

conditions be included whenever the Commission determines that an order is necessary for 

issued COLs to meet new requirements. This approach would provide adequate mechanisms 

to address regulatory changes the Commission directs before COL issuance. 

Approach 3—Post-COL Order Issuance Process

In this approach, the NRC would issue the COL without conditions and issue either a concurrent 

or later order, under the applicable regulations of 10 CFR 50.109, 10 CFR 52.63, or 

10 CFR 52.98, to amend the license to modify, add, or delete any terms or conditions of the 

COLs to reflect any new Commission requirements. 

The post-COL issuance order process for addressing new requirements has some benefits: 

• Approach 3 achieves an equivalent measure of safety as Approach 1. 

• The requirements imposed through orders are equivalent to those imposed on the 

operating fleet. 

As discussed in Approach 2, there are generally fewer regulatory and administrative 

requirements to follow in imposing new requirements prior to issuing a license than in imposing 

similar requirements after COL issuance. Therefore, it is more difficult to issue an order after 

the COL is granted than it is to include a condition at the time of licensing. 
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The disadvantages to implementing the post-COL order issuance process are the following: 

• The staff’s FSER would not provide an evaluation of late-breaking issues. 

• The approach would provide limited stakeholder engagement. 

• The staff would not be following the Commission’s uncontested hearing procedures. 

• If the basis of an order is “adequate protection” and it is applicable to the applicant, then 

the NRC would be unable to make the adequate protection findings necessary to issue a 

COL in the first place. 

This situation is similar to Approach 2 in that in the unique circumstance that the Commission 

directs an order be implemented to resolve a post-Fukushima recommendation, the staff 

anticipates that preparing an order to be issued concurrently with the COL would be a relatively 

straightforward process. Further, the benefits and disadvantages for this approach are similar 

to Approach 2. However, one distinction between this approach and Approach 2 depends on 

the basis for issuing the orders. The staff does not find this approach viable for “adequate 

protection” orders because the staff’s review would not support the requisite safety findings 

required under 10 CFR 52.97 to issue a COL. In these circumstances, the staff recommends 

that a license condition as described in Approach 2 be included in the COL or that the staff 

follow Approach 1. Another disadvantage to this approach is that it does not include input from 

the applicant. In addition, orders issued after the date of COL issuance can be more difficult to 

impose than license conditions because the backfit provisions of 10 CFR 50.109 apply to new 

requirements imposed on information outside of the scope of any referenced certified design. 

General License Condition Requiring Compliance with Fukushima-Related

Regulations and Orders

If the Commission wishes to include a condition that requires compliance with all applicable 

regulations and orders promulgated after the date of issuance of the COL related to Fukushima 

it could do so. This option could potentially be applied in addition to all the approaches 

discussed above, but does not replace any of the approaches. Such a condition, as further 

discussed below, might be used to avoid the need to comply with 10 CFR 50.109 for issues not 

within the scope of a referenced design certification or early site permit. Such a condition could 

possibly specify upcoming activities that the NRC is taking, such as rulemakings associated with 

the NTTF, and state that the licensee must submit a report certifying compliance with any new 

requirements arising from these activities by a certain date, for example 30 days before fuel 

load. To the extent the Commission desires, at the time of COL issuance, to avoid applying 

10 CFR 50.109 to a set of issues, such as those related to the accident at Fukushima, a 

condition could be inserted into the license to exempt the COL from 10 CFR 50.109 for these 

issues.4

 Similarly, a condition could be written that would require the licensee to respond to any 

letters issued pursuant to 10 CFR 50.54(f) to that licensee by a certain number of days before 

fuel load. Under either scenario, a technical justification would need to be established. 

 

4 For purposes of this option, we are only considering a license condition that prospectively does not 

apply the backfit rule in 10 CFR 50.109. Some requirements may also affect the certified design, 

which has finality under 10 CFR 52.63. This finality is in place even before the COL is issued, so the 

analysis on whether it would be possible to exempt a COL from the issue finality provisions in 10 CFR 

52.63 is more complex and would have to be analyzed on a case-by-case basis. 
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However, in all circumstances the findings in 10 CFR 52.97 must be made at the time of COL 

issuance without the need for future requirements or further evaluation and approval. It would 

not be appropriate to use a license condition to obviate a finding that is necessary to issue the 

license. For example, if the staff or Commission finds that the information requested in the 

license condition is necessary to make the finding that there is adequate protection, then that 

information should be reviewed and evaluated prior to issuing the COL; the NRC must make all 

of the findings in 10 CFR 52.97 at the time it issues a COL. 

The benefits to such a license condition are that it would make it publicly clear that we are 

aware of Fukushima-related activities, that those activities may result in new requirements, and 

that new licensees will have to comply with such requirements. In addition, currently, if a 

licensee is not able to comply with the implementation timeframe in a new rule, the licensee 

must seek an exemption to the rule. By making compliance with future rules a condition, if the 

licensee was not able to comply with the implementation timeframe it would have to seek a 

license amendment as well as an exemption. Such an amendment would provide an 

opportunity for members of the public to request a hearing. Exemption requests generally do 

not provide for such opportunities. 

Disadvantages to such a license condition are that it assumes that all new requirements need to 

be implemented prior to fuel load. However, as new requirements are developed, the NRC will 

be in a better position to determine the correct implementation period for each individual 

requirement. Thus, these implementation milestones would be better supported using the 

technical basis that supports any new order or rule, rather than being set to fuel load in a license 

condition without complete information on the new requirement. 

To the extent the Commission wishes to include a condition at the time of COL issuance that 

prospectively does not apply 10 CFR 50.109 to future Fukushima-related activities, it would 

need a sound technical basis. Such a basis may be difficult to develop in the absence of a 

determination of what the new requirements should be.5

 One possible approach would be to 

address each issue from the NTTF that the Commission wishes to prospectively not apply 

10 CFR 50.109 for, and provide a basis in the Commission decision on the uncontested hearing 

for why backfit should prospectively not apply for each issue. A drawback to such a condition is 

that it appears inconsistent with the Part 52 goal of providing a more predictable licensing 

process by resolving construction and operational safety issues before COL issuance and 

according a degree of finality to the issues resolved. A license condition that removes some of 

this finality by prospectively applying future regulations appears to be inconsistent with this goal. 

While there are acceptable ways to write a general license condition, as noted above, there are 

also difficulties. If the Commission chooses to use this regulatory tool going forward, a proper 

 

 

5 The inclusion of such a license condition is not without legal risk and the degree of the risk will 

depend, in part, on the robustness of the technical basis.
The Commissioners - 12 -

basis must be supplied for such a condition, the condition must be specific enough so that the 

determination whether it is met is ministerial, and the staff must be able to make the findings in 

10 CFR 52.97 prior to issuance of the COL. 

RECOMMENDATION: 

The staff recommends that the Commission approve Approach 1. 

The NRC has well-established regulatory processes to address newly arising issues that may 

impact the 10 CFR 52.97 findings. The regulatory tool to be used to address and resolve any 

new issue is best determined when the staff’s justification is fully developed and the 

Commission evaluates both the issue and the staff’s supporting bases. Approach 1 affords 

greater certainty to the applicant/licensee and the NRC as to what the new requirements are, 

and it is subject to a well-defined, well-known, and transparent process in the NRC’s regulations 

for identifying the requirements in question. 

COORDINATION: 

The Office of the General Counsel has reviewed this paper and has no legal objection. 

 

 /RA/ 

 R. W. Borchardt 

 Executive Director 

 for Operations 
The Commissioners - 12 - 

basis must be supplied for such a condition, the condition must be specific enough so that the 

determination whether it is met is ministerial, and the staff must be able to make the findings in 

10 CFR 52.97 prior to issuance of the COL. 

RECOMMENDATION: 

The staff recommends that the Commission approve Approach 1. 

The NRC has well-established regulatory processes to address newly arising issues that may 

impact the 10 CFR 52.97 findings. The regulatory tool to be used to address and resolve any 

new issue is best determined when the staff’s justification is fully developed and the 

Commission evaluates both the issue and the staff’s supporting bases. Approach 1 affords 

greater certainty to the applicant/licensee and the NRC as to what the new requirements are, 

and it is subject to a well-defined, well-known, and transparent process in the NRC’s regulations 

for identifying the requirements in question. 

COORDINATION: 

The Office of the General Counsel has reviewed this paper and has no legal objection. 

 

 /RA/ 

 R. W. Borchardt 

 Executive Director 

 for Operations 

EDATS: NRO-2012-0002 

ADAMS Accession Number: ML120930255 *via e-mail SECY-012 

OFFICE PM:NRO/DARR/APOB LA:NRO/DARR/APOB Tech Editor BC:NRO/DARR/APOB D:NRO/DNRL 

NAME FSchofer RRobinson* 

w/comments 

JDougherty* 

w/comments 

ACubbage 

(GTartal for) 

w/comments 

DMatthews* 

DATE 04/02/12 04/03/12 04/04/12 04/03/12 04/25/12 

OFFICE OGC D:NRO/DARR D:NRO EDO 

NAME SKirkwood (NLO)* 

(JMartin for) 

MMayfield* MJohnson RWBorchardt 

DATE 04/27/12 04/25/12 04/27/12 05/04/12 

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