UNITED STATES OF AMERICA 

NUCLEAR REGULATORY COMMISSION 

COMMISSIONERS: 

Stephen G. Burns, Chairman 

Kristine L. Svinicki 

William C. Ostendorff 

Jeff Baran 

 

In the Matter of 

 

NUCLEAR INNOVATION NORTH AMERICA LLC Docket Nos. 52-012-COL 

 52-013-COL 

(South Texas Project Units 3 and 4) 

 

CLI-16-02 

MEMORANDUM AND ORDER 

On November 19, 2015, we held a hearing on the combined license application of 

Nuclear Innovation North America LLC (NINA) to construct and operate two new nuclear 

reactors at the South Texas Project site in Matagorda County, Texas.1 The purpose of the 

hearing was to consider the sufficiency of the NRC Staff’s review of NINA’s application. As 

discussed below, we conclude that the Staff’s review has been adequate to support the findings 

set forth in 10 C.F.R. §§ 52.97(a) and 51.107(a). We authorize issuance of the combined 

licenses. 

 

1 See In the Matter of Nuclear Innovation North America LLC, Combined Licenses for South 

Texas Project, Units 3 and 4; Notice of Hearing, 80 Fed. Reg. 61,492 (Oct. 13, 2015) (Notice of 

Hearing); In the Matter of Nuclear Innovation North America LLC, Combined Licenses for South 

Texas Project, Units 3 and 4; Notice of Hearing; Correction, 80 Fed. Reg. 69,986 (Nov. 12, 

2015); Tr. at 1-225 (attached as Appendix B to Order of the Secretary (Adopting Proposed 

Transcript Corrections, Admitting Post-Hearing Exhibits, and Closing the Record of the 

Proceeding) (Dec. 21, 2015) (unpublished)). 
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 BACKGROUND 

A. Proposed Action 

NINA seeks to build two Advanced Boiling Water Reactors (ABWRs) at the South Texas 

Project site in Matagorda County, Texas. Two units are currently operating at the site: Unit 1 

began operation in 1988, and Unit 2 began operation in 1989. NINA’s predecessor, South 

Texas Project Nuclear Operating Company (STPNOC), submitted a combined license 

application for Units 3 and 4 in September 2007.2 The Staff accepted the application for review 

shortly thereafter.3 NINA became the lead applicant for STP Units 3 and 4, with STPNOC 

remaining as the proposed operator, in January 2011.4

 

2 The Staff published a hearing notice on December 27, 2007, but later withdrew that notice. 

See South Texas Project Nuclear Operating Company; Notice of Hearing and Opportunity To 

Petition for Leave To Intervene on a Combined License for the South Texas Project Units 3 and 

4, 72 Fed. Reg. 73,381 (Dec. 27, 2007); Letter from David Matthews, Office of New Reactors, 

NRC, to Mark McBurnett, STPNOC (Jan. 30, 2008) (ADAMS accession no. ML080230721) 

(suspending review of certain portions of the combined license application pursuant to 

STPNOC’s request); South Texas Project Nuclear Operating Co. (South Texas Project Units 3 

and 4) Order (Feb. 13, 2008) (unpublished) (withdrawing the hearing notice). The hearing 

notice was re-published early the next year. South Texas Project Nuclear Operating Company 

Application for the South Texas Project Units 3 and 4; Notice of Order, Hearing, and Opportunity 

To Petition for Leave To Intervene, 74 Fed. Reg. 7934 (Feb. 20, 2009). 

3 South Texas Project Nuclear Operating Company; Acceptance for Docketing of an Application 

for Combined License for South Texas Project Units 3 and 4, 72 Fed. Reg. 68,597 (Dec. 5, 

2007). 

4 The applicants are NINA; STPNOC; City Public Service Board of the City of San Antonio, 

Texas; NINA Texas 3 LLC; and NINA Texas 4 LLC. See Ex. NRC-001, “The Staff’s Statement 

in Support of the Uncontested Hearing for Issuance of Combined Licenses for the South Texas 

Project, Units 3 and 4,” Commission Paper SECY-15-0123 (Sept. 30, 2015), at 2 (Staff 

Information Paper) (citing Letter from Mark McBurnett, STPNOC, to NRC Document Control 

Desk (Jan. 19, 2011) (ML110250369)). 
- 3 - 

Consistent with 10 C.F.R. § 52.73, NINA’s application references the ABWR standard 

design certification, which was adopted as a final rule in May 1997.5 Subsequently, the agency 

issued an amendment to the ABWR design certification rule to comply with the NRC’s aircraft 

impact assessment regulations.6 Currently, the NRC is reviewing a renewal application for the 

ABWR design certification submitted by GE Hitachi Nuclear Energy; the STP combined license 

application does not reference this renewal application.7

 

5 See 10 C.F.R. pt. 52, app. A; Standard Design Certification for the U.S. Advanced Boiling 

Water Reactor Design, 62 Fed. Reg. 25,800 (May 12, 1997). 

6 See U.S. Advanced Boiling Water Reactor Aircraft Impact Design Certification Amendment, 

76 Fed. Reg. 78,096 (Dec. 16, 2011). STPNOC was the applicant for this amendment. 

Ex. NRC-001, Staff Information Paper, at 3. The reference ABWR Design Control Document is 

Revision 4 of the ABWR Design Control Document submitted by General Electric Nuclear 

Energy (GE) in March 1997, as codified in 10 C.F.R. Part 52, Appendix A, and as modified by 

the September 2010 STP application to amend the ABWR Design Certification Rule. 

Ex. STP-002, Applicants’ Pre-Filed Testimony of Scott M. Head for the Mandatory Hearing on 

Uncontested Issues for South Texas Project Units 3 and 4, at 14 (Nov. 12, 2015) (NINA Prefiled Testimony) (citing “ABWR Design Control Document,” Rev. 4 (Mar. 1997) 

(ML11126A129)).

7 While the ABWR renewal application does not directly affect the combined license application 

for STP Units 3 and 4, GE Hitachi Nuclear Energy recently discovered an issue that is relevant 

to the STP combined license application. In January 2016, GE Hitachi informed the Staff of an 

inconsistency between Tier 1 and Tier 2 information in the ABWR certified design related to the 

Containment Overpressure Protection System (COPS), which is a subsystem of the non-safety 

related Atmospheric Control System. Letter from Michael Spencer, NRC Staff, to the 

Commission (Jan. 19, 2016) (Staff Notification). GE Hitachi informed the Staff that “during the 

process of confirming the detailed design of the COPS pipe diameter in an ABWR under 

construction, it was determined that the [Tier 1] required minimum capacity COPS flow 

rate . . . could not be achieved with the current Tier 2 design information.” Id., Attachment 1, at 

1. As a result, GE Hitachi proposed changes to Tier 2 information that would increase the 

diameter of the COPS piping and the rupture disk size to maintain the flow rate required by 

Tier 1. Id. 

As the Staff noted, where there is a conflict between Tier 1 and Tier 2 of a Design Control 

Document, Tier 1 controls. 10 C.F.R. pt. 51, app. A, § III.C; Staff Notification Letter, Attachment 

1, at 2. “Thus, the constructed plant must satisfy the Tier 1 COPS flow rate notwithstanding the 

Tier 2 pipe and rupture disk sizes.” Staff Notification Letter, Attachment 1, at 2. Further, the 

Staff noted that a licensee must confirm that the Tier 1 COPS flow rate requirement is met in the 
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Issues resolved in the ABWR design certification rulemaking or the contested portion of 

this combined license proceeding are closed and will not be revisited here; however, a brief 

discussion of these matters is included to provide context for today’s decision. We also provide 

a brief history of this proceeding. 

Over the past eight years, the Staff has spent approximately 157,000 hours on the safety 

and environmental reviews for the application to determine whether it complies with the Atomic 

Energy Act of 1954, as amended (AEA), the National Environmental Policy Act of 1969 (NEPA), 

and the NRC’s regulations.8 During this time, the Staff conducted more than 150 public 

meetings and conference calls, and NINA responded to over 1,700 questions from the Staff.9 In 

addition, the Staff considered approximately 380 comments on the draft environmental impact 

statement.10

The Office of New Reactors led the NRC’s review, with support from the Office of 

Nuclear Security and Incident Response, the Office of Nuclear Material Safety and Safeguards, 

the Office of Nuclear Reactor Regulation, the Office of the General Counsel, and NRC Regions I 

 

as-built design to complete inspections, tests, analyses, and acceptance criteria (ITAAC) 2.14.6-

04. Id. If NINA were to change any Tier 2 information with respect to the COPS design, such 

changes would be subject to the change process in Part 52, Appendix A. Id.; 10 C.F.R. pt. 52, 

app. A, § VII.B. In the Staff’s view, this inconsistency does not impact the issuance of combined 

licenses for STP Units 3 and 4 because it has low safety significance, the existing Tier 1 

requirement for the flow rate controls, an ITAAC requires confirmation that the detailed as-built 

design meets the Tier 1 flow rate, and a process for changing Tier 2 information exists. Staff 

Notification, Attachment 1, at 2. We agree with the Staff’s assessment. 

8 Tr. at 53 (Dr. Uhle). 

9 Id. at 54 (Dr. Uhle); Ex. NRC-001, Staff Information Paper, at 4. 

10 Ex. NRC-005-R, NRC Staff Responses to Commission Pre-Hearing Questions (Oct. 29, 

2015), Attachment: Staff Responses to Commission Pre-Hearing Questions, at 42 (Staff 

Answers to Pre-Hearing Questions). 
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and IV.11 In its environmental review, the Staff worked closely with the U.S. Army Corps of 

Engineers, a cooperating agency.12 Other federal agencies, including the U.S. Department of 

Homeland Security, the U.S. Fish and Wildlife Service, and the National Marine Fisheries 

Service, also contributed to the Staff’s review of NINA’s application.13 In addition, the Staff 

consulted with state, local, and tribal organizations concerning a variety of issues, including 

issues arising under the National Historic Preservation Act.14 The Advisory Committee on 

Reactor Safeguards (ACRS), a committee of technical experts advising the Commission, 

provided an independent assessment of the safety aspects of the application.15

 

11 Tr. at 53-54 (Dr. Uhle). 

12 See id. at 63-64 (Mr. Delligatti). 

13 See Ex. NRC-001, Staff Information Paper, at 5; Tr. at 65 (Mr. Delligatti). 

14 Tr. at 64-65 (Mr. Delligatti). 

15 AEA § 182b., 42 U.S.C. § 2232(b); 10 C.F.R. §§ 1.13, 52.87; see Letter from John Stetkar, 

Chairman, ACRS, to Stephen Burns, Chairman, NRC (Feb. 19, 2015) (ML15039A006) (ACRS 

Letter). The ACRS concluded that “[t]here is reasonable assurance that STP Units 3 and 4 can 

be built and operated without undue risk to the health and safety of the public” and 

recommended that the combined license application “be approved following its final revision.” 

Id. at 1. It also found that “[t]here is reasonable assurance that the ABWR design and the STP 

Units 3 and 4 site satisfy” NRC requirements that were imposed as part of the agency’s lessons 

learned from the March 11, 2011 Fukushima Dai-ichi accident. Id. at 2. The ACRS identified 

two issues that the Staff should address “with the issuance” of the combined licenses. Id. 

These issues related to NINA’s turbine missile analysis: (1) “The final plant-specific turbine 

missile [analysis] should explicitly evaluate each turbine control and protection system including 

the turbine speed sensors, all component failure modes, all required support systems and the 

measured material toughness properties for the STP Units 3 and 4 monoblock rotors”; and (2) 

“Rather than imposing a requirement for weekly testing of turbine valves until the turbine missile 

analysis is submitted, the staff should incorporate a risk-informed analysis to determine the 

appropriate test frequency.” Id. The Staff agreed that these two issues would be addressed 

upon applicant submittal and NRC Staff approval, of a plant-specific turbine missile analysis. 

Letter from Mark Satorius, EDO, NRC, to John Stetkar, Chairman, ACRS (Apr. 2, 2015), at 2 

(ML15072A109) (Staff Response to ACRS); Ex. NRC-001, Staff Information Paper, at 11-12. 

The ACRS also identified two generic issues that relate to (1) acceptance criteria in NUREG0800, the Standard Review Plan, for Charpy V-notch energy and fracture appearance transition 
- 6 - 

NINA did not pursue an early site permit for STP Units 3 and 4.16 Therefore, all relevant 

site characteristics, including site geology, hydrology, seismology, and man-made hazards, as 

well as the potential environmental impacts of the project, were considered as part of the Staff’s 

combined license review and are within the scope of our decision today. 

B. Review Standards 

The AEA, section 189a., requires that we hold a hearing on each application to construct 

a nuclear power plant, regardless of whether an interested member of the public requests a 

hearing on the application.17 Our Notice of Hearing for the “uncontested” or “mandatory” portion 

of this proceeding outlines the standards for our review.18 On the safety side, we must 

determine whether: 

(1) the applicable standards and requirements of the AEA and the Commission’s 

regulations have been met; 

(2) any required notifications to other agencies or bodies have been duly made; 

(3) there is reasonable assurance that the facility will be constructed and will operate 

in conformity with the license, the provisions of the AEA, and the Commission’s 

regulations; 

 

temperature, and (2) “fire-induced spurious actuations that may result from heat or fire damage 

to digital instrumentation and control signal cabinets, when external connections to those 

cabinets are made via fiber optic cables.” ACRS Letter at 2; Staff Response to ACRS at 2-3. 

As to the Standard Review Plan issue, the Staff indicated that NINA’s assessment of this issue 

was acceptable, but that it would consider developing specific guidance in the next revision of 

the SRP. Ex. NRC-001, Staff Information Paper, at 12. As to the fire hazard issue, the Staff 

noted that the STP 3 and 4 design is adequate, but as a generic matter, the Staff continues to 

work with stakeholders and committed to update the ACRS in the future. Id.

16 Ex. STP-002, NINA Pre-filed Testimony, at 4. See generally 10 C.F.R. pt. 52 subpt. A

(describing the process for obtaining an early site permit). 

17 AEA § 189a., 42 U.S.C. § 2239(a). 

18 See Notice of Hearing, 80 Fed. Reg. at 61,493. 
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(4) the applicant is technically and financially qualified to engage in the activities 

authorized by the license; and 

(5) issuance of the license will not be inimical to the common defense and security 

or to the health and safety of the public.19

On the environmental side, we must: 

(1) determine whether the requirements of NEPA section 102(2)(A), (C), and (E), 

and the applicable regulations in 10 C.F.R. Part 51 (the NRC regulations 

implementing NEPA), have been met; 

(2) independently consider the final balance among conflicting factors contained in 

the record of the proceeding with a view to determining the appropriate action to 

be taken; 

(3) determine, after weighing the environmental, economic, technical, and other 

benefits against environmental and other costs, and considering reasonable 

alternatives, whether the combined licenses should be issued, denied, or 

appropriately conditioned to protect environmental values; and 

(4) determine whether the NEPA review conducted by the NRC Staff has been 

adequate.20

We do not review NINA’s application de novo; rather, we consider the sufficiency of the 

Staff’s review of the application—that is, whether the Staff’s review was sufficient to support the 

required findings.21

 

 

19 10 C.F.R. § 52.97(a). 

20 Id. § 51.107(a). 

21 See, e.g., DTE Electric Co. (Fermi Nuclear Power Plant, Unit 3), CLI-15-13, 81 NRC 555, 

560-61 (2015). 
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C. Contested Proceeding 

After the Staff docketed the combined license application for STP Units 3 and 4, it 

provided interested persons an opportunity to challenge the application in a contested 

proceeding, in accordance with AEA section 189a.22 A group of organizations and individuals 

filed an intervention petition opposing the application.23 The Atomic Safety and Licensing Board 

granted the initial hearing request of Sustainable Energy and Economic Development Coalition 

(SEED Coalition), the South Texas Association for Responsible Energy, and Public Citizen 

(collectively, Intervenors) and admitted five environmental contentions in 2009.24 While the 

Board was considering the initial petition, the Intervenors submitted seven new contentions 

challenging the completeness of the information contained in the application’s Mitigative 

 

22 See supra note 2. 

23 Petition for Intervention and Request for Hearing (Apr. 21, 2009). 

24 The Board ruled on the initial petition in two decisions. In LBP-09-21, 70 NRC 581, 638 

(2009), the Board admitted one contention relating to the impacts that a severe accident at one 

of the units would have on the other three. The same decision rejected eighteen proposed 

contentions and deferred ruling on nine proposed contentions to a later order. Id. STPNOC 

sought an extension to appeal LBP-09-21; we denied that request on the ground that the appeal 

had not yet come due: where the Board had ruled only partially on the initial intervention 

petition, the appeal right under 10 C.F.R. § 2.311 did not accrue until the Board had ruled on the 

entire petition. CLI-09-18, 70 NRC 859 (2009). In LBP-09-25, 70 NRC 867, 896-97 (2009), the 

Board admitted four of the remaining contentions and rejected the remaining five proposed 

contentions. The four contentions admitted in LBP-09-25 related to the impacts of increased 

radiological discharges to the shared main cooling reservoir, the potential increase of tritium in 

the groundwater, the effects of seepage from the main cooling reservoir to the groundwater, and 

the effects of increased groundwater withdrawal due to operation of two additional units. Id. at 

896. 
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Strategies Report.25 In January 2010, the Board rejected all of the mitigative strategies 

contentions.26

In July 2010, the Board admitted a new contention, based on a supplement to 

STPNOC’s environmental report, challenging the applicant’s analysis of cost-beneficial severe 

accident mitigation design alternatives (SAMDAs).27 In that contention, designated CL-2, the 

Intervenors argued that STPNOC had underestimated the costs of replacement power should 

an accident at one unit necessitate the shutdown of the other units on the site.28 In the same 

decision, the Board ruled that STPNOC’s November 2009 environmental report supplement had 

cured the previous deficiencies forming the bases of the five contentions admitted in LBP-09-21 

and LBP-09-25 and granted STPNOC’s motion for summary disposition relating to those 

contentions.29

In February 2011, the Board admitted a new contention, based on the Staff’s draft 

environmental impact statement (DEIS) and designated DEIS-1-G, in which the Intervenors 

argued that the Staff’s need for power analysis was incomplete because it failed to consider 

reduced demand resulting from energy efficiency.30 In the same ruling, the Board rejected five 

 

25 Intervenors’ Contentions Regarding Applicant’s Submittal Under 10 C.F.R. § 52.80 and 

10 C.F.R. § 50.54(hh)(2) and Request for Subpart G Hearing (Aug. 14, 2009) (non-public). 

26 LBP-10-2, 71 NRC 190 (2010). 

27 LBP-10-14, 72 NRC 101, 127-29 (2010); see also Memorandum and Order (Ruling on Motion 

for Reconsideration of Contention CL-2) (Aug. 10, 2010) (unpublished). 

28 LBP-10-14, 72 NRC at 122-29. 

29 Id. at 147. 

30 LBP-11-7, 73 NRC 254, 289-94, 314 (2011). The Board rejected the other seven bases 

proposed to support the contention. Id. at 285. 
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other proposed contentions and denied the Staff’s and NINA’s motions for summary disposition 

of Contention CL-2.31 The Board rejected the Staff’s argument that the Commission had 

resolved all environmental issues regarding SAMDAs in this proceeding by rule (the ABWR 

design certification) because it found that the STP site characteristics were not bounded by the 

site parameters in the Technical Support Document for the ABWR and, therefore, that SAMDA 

issues were not resolved by rule.32

The Board held evidentiary hearings on Contentions CL-2 and DEIS-1-G in August 2011 

and October 2011, respectively.33 In December 2011, the Board resolved Contention CL-2 in 

the Staff’s and NINA’s favor, finding that NINA and the Staff reasonably accounted for the 

economic factors raised by the Intervenors and demonstrated that no cost-beneficial SAMDAs 

exist for the combined license application.34 Shortly thereafter, the Board resolved Contention 

DEIS-1-G in the Staff’s and NINA’s favor, finding that the Final Environmental Impact Statement 

adequately accounts for reduced demand caused by the adoption of energy-efficient building 

codes in Texas and demonstrates a need for power from the proposed units.35

 

31 Id. at 314. The five rejected contentions challenged the DEIS discussion of (1) global 

warming; (2) comparison of greenhouse gas emissions; (3) greenhouse gas mitigation; 

(4) climate change; and (5) water needs. See also Intervenors’ Motion for Leave to File New 

Contentions Based on the Draft Environmental Impact Statement (May 19, 2010). 

32 LBP-11-7, 73 NRC at 274-76. 

33 LBP-11-38, 74 NRC 817, 821 (2011) (First Partial Initial Decision); LBP-12-5, 75 NRC 227, 

233 (2012) (Second Partial Initial Decision). 

34 LBP-11-38, 74 NRC at 821, 860. 

35 LBP-12-5, 75 NRC at 254-55. 
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The third and final contention to be adjudicated on the merits was Contention FC-1, in 

which the Intervenors argued that NINA (by that point the lead applicant) was subject to foreign 

control and domination.36 Toshiba Corporation, which is the vendor for the project as well as the 

Japanese “grandparent” corporation of one partner in the joint venture, had agreed to provide all 

the financing to complete the licensing process after another partner discontinued its financial 

support of the project. 37 In December 2011, after reviewing NINA’s foreign ownership Negation 

Action Plan and responses to requests for additional information, the Staff concluded that the 

combined license application did not meet the requirements of 10 C.F.R. § 50.38 related to 

foreign ownership, control, or domination.38 In April 2014, after an evidentiary hearing, the 

Board resolved FC-1 in NINA’s favor.39 The Board found that NINA’s ownership and 

management had been structured to ensure that Toshiba could not influence operations or any 

 

36 See LBP-11-25, 74 NRC 380 (2011) (admitting the proposed contention); Intervenors’ Motion 

for Leave to File a New Contention Based on Prohibitions Against Foreign Control (May 16, 

2011). 

37 LBP-14-3, 79 NRC 267, 283-84 (2014) (Third Partial Initial Decision). NINA has overall 

responsibility for the combined license application and the construction of STP Units 3 and 4 

until lead licensee responsibilities are transferred to STPNOC at the operation stage. Id. at 283 

n.77, 284. At the time of the Board’s decision, NRG Energy owned approximately ninety 

percent of NINA and Toshiba America Nuclear Energy Corporation owned approximately ten 

percent of NINA. Id. at 284. Toshiba America Nuclear Energy Corporation is a wholly-owned 

subsidiary of Toshiba America, Inc., which, in turn, is a wholly-owned subsidiary of Toshiba 

Corporation. Id.

38 Id. at 274 (citing Letter from David Matthews, Office of New Reactors, NRC to Mark 

McBurnett, NINA (Dec. 13, 2011), at 1 (ML14028A332)). 

39 Id. at 312. 
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decision relating to safety or security.40 The Intervenors petitioned for review, with the Staff 

filing an answer in support of elements of the Intervenors’ appeal.41 We denied review.42

Also during the pendency of the contested proceeding, the U.S. Court of Appeals for the 

District of Columbia Circuit vacated and remanded our 2010 Waste Confidence Decision and 

Temporary Storage Rule, which for this and other NRC licensing actions served as part of the 

environmental analysis of the impacts of spent fuel storage after the end of a reactor’s license 

term pending ultimate disposal in a repository.43 In light of the D.C. Circuit’s vacatur and 

remand of the rule, and in response to a number of suspension petitions filed on multiple 

dockets (including this one), we held in abeyance the issuance of final licensing decisions for 

affected matters while we addressed the court’s remand.44 To address the court’s remand and 

provide comprehensive analysis of the environmental impacts of continued storage, we issued a 

final Continued Storage Rule and supporting Generic Environmental Impact Statement.45 

 

40 Id.

41 Intervenors’ Petition for Review of Licensing Board Memorandum and Order LBP-14-03 (May 

5, 2014); NRC Staff Answer to Intervenors’ Petition for Review of the Licensing Board’s Partial 

Initial Decision on Contention FC-1 (May 30, 2014). 

42 CLI-15-7, 81 NRC 481, 499 (2015). 

43 See New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012). See generally Final Rule: 

Consideration of Environmental Impacts of Temporary Storage of Spent Fuel After Cessation of 

Reactor Operation, 75 Fed. Reg. 81,032 (Dec. 23, 2010); Waste Confidence Decision Update, 

75 Fed. Reg. 81,037 (Dec. 23, 2010). 

44 Calvert Cliffs 3 Nuclear Project, LLC, and UniStar Nuclear Operating Services, LLC (Calvert 

Cliffs Nuclear Power Plant, Unit 3), CLI-12-16, 76 NRC 63, 67-69 (2012); see Petition to 

Suspend Final Decisions in All Pending Reactor Licensing Proceedings Pending Completion of 

Remanded Waste Confidence Proceedings (June 18, 2012). 

45 Calvert Cliffs Nuclear Project, LLC, and UniStar Nuclear Operating Services, LLC (Calvert 

Cliffs Nuclear Power Plant, Unit 3), CLI-14-8, 80 NRC 71, 77 (2014). See generally Final Rule, 

Continued Storage of Spent Nuclear Fuel, 79 Fed. Reg. 56,238 (Sept. 19, 2014); Generic 
- 13 - 

Concurrent with this action, we lifted the licensing suspension and dismissed, or directed 

licensing boards to dismiss, proposed contentions that had been filed with the multi-docket 

suspension petitions and held in abeyance.46 The Board dismissed the Intervenors’ continued 

storage contention consistent with our direction and terminated the contested portion of the 

proceeding.47

Separately, the Staff considered whether the Continued Storage Rule and the 

associated Generic Environmental Impact Statement presented new and significant information 

such that a supplement to the FEIS was required.48 The Staff compared the fuel cycle impacts 

analysis in the FEIS with the analysis in the Generic Environmental Impact Statement for 

Continued Storage and determined that the information in the Generic Environmental Impact 

Statement did not present a seriously different picture of the environmental impacts of the 

proposed action when compared to the impacts that were described in the FEIS.49 The Staff 

concluded that the new information related to the impacts of the continued storage of spent fuel 

 

Environmental Impact Statement for Continued Storage of Spent Nuclear Fuel, 79 Fed. Reg. 

56,263 (Sept. 19, 2014); “Generic Environmental Impact Statement for Continued Storage of 

Spent Nuclear Fuel,” NUREG-2157, Vols. 1 and 2, (Sept. 2014) (ML14196A105 and 

ML14196A107). Several groups, including SEED Coalition, have filed a petition for review in 

the D.C. Circuit challenging the Continued Storage Rule. New York v. NRC, Nos. 14-1210, 

14-1212, 14-1216, and 14-1217 (consolidated). 

46 Calvert Cliffs, CLI-14-8, 80 NRC at 79-81. 

47 LBP-14-14, 80 NRC 144, 145 (2014). 

48 See Ex. NRC-005-R, Staff Answers to Pre-Hearing Questions, at 41 (citing Consideration of 

New Information Regarding the Impacts of the Continued Storage of Spent Fuel for the South 

Texas Project Electric Generating Station Units 3 and 4 Combined License Application (July 

2015) (ML15096A156)). 

49 Id.
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would not have changed the Staff’s conclusions in the FEIS regarding the alternatives or the 

benefit-cost balance.50

SEED Coalition, a party to the contested proceeding, joined a group of petitioners in a 

multi-docket petition requesting a supplement to the environmental impact statements for a 

number of applications, including NINA’s combined license application for STP Units 3 and 4, to 

incorporate by reference the analysis in the Generic Environmental Impact Statement for 

Continued Storage.51 SEED Coalition also filed a new contention, accompanied by a motion to 

reopen the record, as a “placeholder” to permit it to challenge the Staff’s FEIS for STP Units 3 

and 4 assuming that separate challenges to the Continued Storage Rule filed in the D.C. Circuit 

are successful.52 We denied the petition to supplement and declined to admit SEED Coalition’s 

“placeholder” contention.53

Additionally, SEED Coalition and Public Citizen, together with several other petitioners, 

raised issues related to the accident at the Fukushima Dai-ichi Nuclear Power Station. In 

CLI-11-5, the Commission denied petitions filed on multiple dockets to suspend licensing 

 

50 Id.

51 See Petition to Supplement Reactor-Specific Environmental Impact Statements to Incorporate 

by Reference the Generic Environmental Impact Statement for Continued Spent Fuel Storage 

(Jan. 28, 2015). 

52 SEED Coalition’s Motion to Reopen the Record of Combined License Proceeding for South 

Texas Units 3 and 4 Nuclear Power Plant (Apr. 24, 2015), at 1-2; SEED Coalition’s Hearing 

Request and Petition to Intervene in Combined License Proceeding for South Texas Units 3 and 

4 Nuclear Power Plant (Apr. 24, 2015), at 1-3. 

53 DTE Electric Co. (Fermi Nuclear Power Plant, Unit 3), CLI-15-10, 81 NRC 535, 544 (2015); 

Duke Energy Carolinas, LLC (William States Lee III Nuclear Station, Units 1 and 2), CLI-15-15, 

81 NRC 803, 805 (2015), appeal docketed, No. 15-1262 (D.C. Cir. Aug. 7, 2015). 
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proceedings.54 In December 2011, the Board rejected a proposed contention arguing that the 

NRC’s Near-Term Task Force Report constituted new and significant information concerning the 

environmental risks associated with nuclear power plants that should be analyzed in a 

supplemental DEIS.55 The Near-Term Task Force Report was prepared by a team of senior 

NRC employees shortly after the accident to systematically and methodically review the 

agency’s processes and regulations and provide recommendations on whether the agency 

should make further improvements to its regulatory processes. Relatedly, in February 2014, 

several petitioners sought to suspend reactor licensing decisions pending the resolution of a 

petition for rulemaking concerning the environmental impacts of the expedited transfer of spent 

 

54 Union Electric Co. d/b/a Ameren Missouri (Callaway Plant, Unit 2), CLI-11-5, 74 NRC 141, 

175-76 (2011); see Emergency Petition to Suspend All Pending Reactor Licensing Decisions 

and Related Rulemaking Decisions Pending Investigation of Lessons Learned from Fukushima 

Daiichi Nuclear Power Station Accident (Apr. 14, 2011, corrected Apr. 18, 2011) 

(ML111091154). The petition was not filed on the South Texas docket, although the caption 

included this case and Public Citizen and SEED Coalition joined in the filing. We resolved the 

petitions in our supervisory capacity and did not address procedural irregularities. See 

Callaway, CLI-11-5, 74 NRC at 158 & n.65. The NRC also recently denied petitions for 

rulemaking, filed in multiple dockets. The Petitioners requested that the NRC rescind its 

regulations that “reach generic conclusions about the environmental impacts of severe reactor 

and/or spent fuel pool accidents and therefore prohibit considerations of those impacts in 

reactor licensing proceedings.” Environmental Impacts of Severe Reactor and Spent Fuel Pool 

Accidents; Petition for rulemaking; Denial, 80 Fed. Reg. 48,235, 48,238 (Aug. 12, 2015); see 

Rulemaking Petition to Rescind Prohibition Against Consideration of Environmental Impacts of 

Severe Reactor and Spent Fuel Pool Accidents and Request to Suspend Licensing Decision

(Aug. 11, 2011). 

55 LBP-11-39, 74 NRC 862, 871-72 (2011). 
- 16 - 

fuel from the spent fuel pool to dry cask storage.56 In July 2014, we denied the suspension 

petitions and provided direction on related requests.57

D. Uncontested Proceeding 

The scope of an uncontested proceeding is defined by the scope of the contested 

proceeding: all of the safety and environmental issues in NINA’s combined license application, 

except for the contested matters and those previously resolved as part of the ABWR design 

certification rulemaking, are subject to our review in the uncontested proceeding.58 Before we 

held the first mandatory hearings for combined license applications, we directed the Staff to 

provide us with an information paper on its review of each application concurrent with the 

completion of its final safety or environmental review document, whichever comes later.59 The 

Staff issued the FEIS for STP Units 3 and 4 in February 2011 and the final Safety Evaluation 

Report (SER) in September 2015, which triggered the start of the uncontested portion of this 

 

56 See Petition to Suspend Reactor Licensing Decisions and Reactor Re-licensing Decisions 

Pending Completion of Rulemaking Proceeding Regarding Environmental Impacts of HighDensity Pool Storage of Spent Fuel and Mitigation Measures (Feb. 27, 2014). 

57 See DTE Electric Co. (Fermi Nuclear Power Plant, Unit 3), CLI-14-7, 80 NRC 1, 10 (2014) 

(directing the Staff to deny the rulemaking petitioners’ collateral request to suspend licensing 

decisions on all other pending proceedings and directing the Staff to seek Commission approval 

if it determines that suspension of NRC rules or the environmental assessments considering 

SAMDAs is necessary). The Staff continues to evaluate the petition for rulemaking concerning 

the environmental impacts of the expedited transfer of spent fuel from the spent fuel pool to dry 

cask storage. See PRM-51-31, Docket ID NRC-2014-0055 at http://www.nrc.gov/readingrm/doc-collections/rulemaking-ruleforum/petitions-by-year/2014/. 

58 See Notice of Hearing, 80 Fed. Reg. at 61,493. 

59 See generally Staff Requirements—SECY-10-0082—Mandatory Hearing Process for 

Combined License Application Proceedings Under 10 C.F.R. Part 52 (Dec. 23, 2010), at 1-2 

(ML103570203). This direction has been memorialized in our procedures. See Internal 

Commission Procedures, ch. IV, “Commission Meetings/Hearings,” at IV-13 (June 12, 2012). 
- 17 - 

proceeding.60 We received the Staff’s information paper on September 30, 2015, shortly after 

the Staff’s issuance of the SER.61

1. Pre-Hearing Activities 

We issued the Notice of Hearing on October 13, 2015, and set the schedule for the 

parties—the Staff and NINA—to file their witness lists, as well as for NINA to provide its pre-filed 

testimony.62 We also issued a number of questions on safety-related and environmental topics 

for the Staff and NINA to answer in writing before the hearing.63 In addition, we invited 

interested states, local government bodies, and federally-recognized Indian tribes to provide 

statements of issues or questions for us to consider as part of the uncontested proceeding.64 

We received one response from Matagorda County Judge Nate McDonald, expressing support 

for the issuance of the combined licenses.65

 

60 See Ex. NRC-010A and NRC-010B, “Environmental Impact Statement for Combined Licenses 

(COLs) for South Texas Project Electric Generating Station Units 3 and 4” (Final Report), 

NUREG-1937, Vols. 1-2 (Feb. 2011) (ML11049A000 and ML11049A001) (FEIS); Ex. NRC-008, 

“Final Safety Evaluation Report for the South Texas Project Units 3 and 4 Combined License 

Application” (Sept. 29, 2015) (ML15232A128) (Safety Evaluation Report); Ex. NRC-009, “Final 

Safety Evaluation Report for the South Texas Project Units 3 and 4 Combined License 

Application, Chapters with Sensitive Information—Chapter 1, Chapter 3, and Chapter 19, 

Attachment A (Sept. 29, 2015) (ML15089A104, ML15226A256, ML15132A346) (non-public). 

61 See Ex. NRC-001, Staff Information Paper, at 1. 

62 Notice of Hearing, 80 Fed. Reg. at 61,493. The Staff’s information paper serves as its prefiled testimony. 

63 See Order (Transmitting Pre-Hearing Questions) (Oct. 16, 2015) (unpublished) (Pre-Hearing 

Question Order). 

64 Notice of Hearing, 80 Fed. Reg. at 61,493-94. 

65 Letter from Nate McDonald, County Judge, Matagorda County, to Annette Vietti-Cook, 

Secretary, NRC (Oct. 7, 2015) (ML15280A414); see also Tr. at 18 (Mr. McBurnett) (describing 

Judge McDonald as the elected chief executive for Matagorda County and serving as the county 

emergency management director in that capacity). 
- 18 - 

2. The Hearing 

The Secretary of the Commission transmitted a scheduling note to NINA and the Staff 

setting the topics for and the order of presentations at the hearing.66 In the first panel, witnesses 

for NINA and the Staff provided an overview of NINA’s combined license application and the 

Staff’s review. The next three panels focused on safety-related issues, and the final panel 

focused on environmental issues. 

The Staff made available one hundred witnesses at the hearing, thirteen of whom were 

scheduled panelists.67 Ten additional witnesses answered questions on topics relating to their 

expertise at the hearing. A total of eight witnesses offered testimony on behalf of NINA on 

panels at the hearing and in pre-filed written testimony.68

a. Summary of the Overview Panels 

Mark McBurnett, Chief Executive Officer (CEO) of NINA, Dennis Koehl, President/CEO 

of STPNOC, and Scott Head, Manager of Regulatory Affairs for NINA, represented NINA on the 

overview panel.69 Mr. McBurnett provided background on the development of NINA’s license 

application, including the ownership structure for the units, the decision to pursue combined 

 

66 Scheduling Note, “Hearing on Combined Licenses for South Texas Project, Units 3 and 4: 

Section 189a. of the Atomic Energy Act Proceeding (Public Meeting),” (Scheduling Note) 

(revising the scheduling note issued on November 5, 2015) (ML16014A431). 

67 See Tr. at 12-15, 178-79; NRC Staff Witness List (Nov. 18, 2015); Scheduling Note at 2-5. 

68 See Witness List of Nuclear Innovation North America LLC for the Hearing on Uncontested 

Issues (Oct. 29, 2015); Tr. at 11; Ex. STP-002, NINA Pre-filed Testimony. 

69 Tr. at 17-18. 
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licenses, the selection of the ABWR design, and the selection of Toshiba as a vendor.70 Mr. 

Head provided additional information on the history of the development of the ABWR, some key 

aspects of the certified design, departures from the certified design, and selection of the STP 

site.71

Jennifer Uhle, Director of the Office of New Reactors, Gary Holahan, Deputy Director of 

the Office of New Reactors, Frank Akstulewicz, Director of the Division of New Reactor 

Licensing in the Office of New Reactors, and Mark Delligatti, Deputy Director of the Division of 

New Reactor Licensing in the Office of New Reactors, provided background on the Staff’s 

review of the combined license application.72 Mr. Holahan explained that the Staff focused its 

review on the plant-specific aspects of the application—operational programs, site-specific 

design features, combined license information items, and departures from the certified design.73 

He noted that this combined license application is the first to reference the ABWR design, and 

NINA’s application likewise references the Aircraft Impact Assessment amendment to the 

ABWR.74 Mr. Akstulewicz provided a summary of the Staff’s findings under 10 C.F.R. 

§ 52.97(a).75 Mr. Delligatti provided background on the Staff’s environmental review, including a 

 

70 See Ex. STP-011, NINA Presentation Slides: Overview Presentation (Nov. 19, 2015) (NINA 

Overview Presentation); see also Tr. at 20-24 (Mr. McBurnett). 

71 See Tr. at 25-34 (Mr. Head); Ex. STP-011, NINA Overview Presentation, at 3-6. 

72 See Ex. NRC-011, Staff Presentation Slides—Overview (Nov. 19, 2015) (Staff Overview 

Presentation); Tr. at 51-70. 

73 Tr. at 57 (Mr. Holahan). 

74 Id. (Mr. Holahan); Ex. NRC-011, Staff Overview Presentation, at 4. 

75 Tr. at 60-62 (Mr. Akstulewicz); Ex. NRC-011, Staff Overview Presentation, at 10-12. 
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summary of the Staff’s findings in accordance with NEPA sections 102(2)(A), (C), and (E) and 

10 C.F.R. § 51.107(a).76

b. Summary of the Safety Panels 

The first safety panel focused on departures from the certified design and exemptions 

from the regulations, including the exemption from the financial qualification regulations.77 

Mr. Head testified for NINA, and Mr. McBurnett joined him on the panel.78 Tom Tai, Senior 

Project Manager and lead project manager for the STP Units 3 and 4 review, Licensing 

Branch 2, Office of New Reactors; Richard Turtil, Senior Financial Analyst, Financial Analysis 

and International Projects Branch, Office of Nuclear Reactor Regulation; and Dinesh Taneja, 

Senior Electronics Engineer, Instrumentation, Controls, and Electronics Engineering Branch, 

Office of New Reactors, provided testimony for the Staff.79 Mr. Turtil discussed NINA’s request 

for an exemption from the financial qualification requirements in 10 C.F.R. § 50.33(f) and 

Part 50, Appendix C.80 Mr. Taneja discussed the Staff’s review of the Tier 1 departure on 

instrumentation and control.81 In addition to departures and exemptions, the remainder of 

 

76 Tr. at 63-69 (Mr. Delligatti); Ex. NRC-011, Staff Overview Presentation, at 12-18. 

77 See Tr. at 69 (Dr. Uhle); Ex. STP-012, NINA Presentation Slides: Safety Panel 1—Financial 

Qualifications (Nov. 19, 2015); Ex. NRC-012, Staff Presentation Slides—Safety Panel 1 (Nov. 

19, 2015) (Staff Safety Panel 1 Presentation). 

78 Tr. at 89-92. 

79 Id. at 92-103; Scheduling Note at 2. 

80 Tr. at 96-100 (Mr. Turtil). This exemption is discussed in greater detail in section II.A.1, infra. 

81 Tr. at 100-03 (Mr. Taneja). 
- 21 - 

chapter one of the final Safety Evaluation Report was subject to our examination during the first 

safety panel.82

The second safety panel focused on the novel issues associated with the review of 

actions to address (1) NRC Bulletin 2012-01, “Design Vulnerability in Electric Power System” 

and (2) the issues in Order EA-12-049, “Order Modifying Licenses with Regard to Requirements 

for Mitigation Strategies for Beyond-Design-Basis External Events.”83 Mr. Head provided 

testimony for NINA, with Steven Thomas, Engineering Manager for NINA, and Willem 

Mookhoek, Licensing Supervisor for NINA, on the panel.84 Mr. Tai; Ryan Nolan, Reactor 

Systems Engineer, Plant Systems Branch, Office of New Reactors; and Sheila Ray, Senior 

Electrical Engineer, Electrical Engineering Branch, Office of Nuclear Reactor Regulation, 

provided testimony for the Staff.85 The remaining portions of chapters eight and twenty-two of 

the final Safety Evaluation Report, as well as chapters eleven though sixteen, eighteen, and 

nineteen were also subject to our examination during the second safety panel.86

The third safety panel focused on the design basis flood assessment for the STP site 

and the Staff’s review of the qualifications of Toshiba as an alternate vendor for the certified 

 

82 Scheduling Note at 2. 

83 Id. at 3; Tr. at 69-70 (Dr. Uhle); see NRC Bulletin 2012-01: Design Vulnerability in Electric 

Power System (July 27, 2012), at 1 (ML12074A115); Order Modifying Licenses with Regard to 

Requirements for Mitigation Strategies for Beyond–Design-Basis External Events (Effective 

Immediately), EA-12-049 (Mar. 12, 2012), at 3 (ML12054A735) (Order EA-12-049). 

84 Tr. at 119-22; Scheduling Note at 3. 

85 Tr. at 119, 122-31; Scheduling Note at 3. 

86 Scheduling Note at 3. 
- 22 - 

ABWR design.87 Mr. Head provided testimony for NINA, with Mr. Thomas and Mr. Mookhoek on 

the panel.88 Mr. Tai; Dr. Henry Jones, Senior Hydrologist, Hydrology and Meteorology Branch 

1, Office of New Reactors; and Richard McIntyre, Senior Reactor Operations Engineer, Quality 

Assurance Vendor Inspection Branch, Office of New Reactors, provided testimony for the 

Staff.89 The remaining portions of chapters two and seventeen of the final Safety Evaluation 

Report, as well as chapters three though seven, nine, and ten were also subject to our 

examination during the third safety panel.90

c. Summary of the Environmental Panel 

The environmental panel summarized the process for developing the environmental 

impact statement, the analysis of alternatives, the assessment of new information, and the 

conclusions and recommendations of the final environmental impact statement.91 Mr. Head 

testified for NINA and was joined on the panel by Peggy Travis, Environmental Supervisor for 

STPNOC, and Russell Kiesling, Chief Consultant, Kiesling Ventures LLC, who was the 

environmental lead for NINA.92 Patricia Vokoun, Project Manager, Environmental Projects 

Branch, Office of New Reactors, and Andrew Kugler, Senior Project Manager, Environmental 

Technical Support Branch, Office of New Reactors, provided testimony for the Staff.93

 

87 Id. at 4; Tr. at 70 (Dr. Uhle). 

88 Tr. at 148, 150-53; Scheduling Note at 4. 

89 Tr. at 148, 153-61; Scheduling Note at 4. 

90 Scheduling Note at 4. 

91 Scheduling Note at 5. 

92 Tr. at 184-87; Scheduling Note at 5. 

93 Tr. at 185, 187-98; Scheduling Note at 5. 
- 23 - 

3. Post-Hearing Questions 

After the hearing, we issued additional questions for written answers from NINA and the 

Staff.94 We then admitted NINA’s and the Staff’s responses as exhibits, adopted corrections to 

the hearing transcript, and closed the evidentiary record.95

 DISCUSSION 

A. Exemptions and Departures 

NINA submitted four requests for specific exemptions from our regulations that are 

outside the scope of the design certification rule; one request was later withdrawn.96 In addition, 

the combined license application contains a total of 275 departures from the ABWR certified 

design.97 The Staff performed an extensive review of the exemption requests and departures 

and noted that NINA effectively responded to its requests for additional information.98

1. Exemptions 

The Staff evaluated and found acceptable three requests to exempt NINA from NRC 

regulations outside the scope of the design certification rule. First, NINA requested an 

exemption from the definition of “construction” in 10 C.F.R. § 50.10(a)(1) to allow the installation 

of crane foundation retaining walls during the excavation process prior to the issuance of the 

 

94 Order (Transmitting Post-Hearing Questions) (Nov. 30, 2015) (unpublished) (Post-Hearing 

Questions Order). 

95 Order (Adopting Proposed Transcript Corrections, Admitting Post-Hearing Exhibits, and 

Closing the Record of the Proceeding) (Dec. 21, 2015) (unpublished). 

96 Ex. NRC-001, Staff Information Paper, at 13 (citing Letter from Mark McBurnett, STPNOC, to 

Document Control Desk, NRC (Sept. 16, 2009), at 2 (ML092930393) (withdrawing previous 

request for exemption from Appendix A to 10 C.F.R. Part 52, Section IV.A.2.a)). 

97 Ex. STP-002, NINA Pre-filed Testimony, at 10. 

98 Tr. at 114-16 (Mr. Tai, Mr. Turtil, Mr. Taneja). 
- 24 - 

combined licenses.99 Second, NINA sought an exemption from the material control and 

accounting requirements of 10 C.F.R. §§ 70.22(b), 70.32(c), 74.31, 74.41, and 74.51, which 

either do not apply to reactors or expressly contain exclusions for reactors licensed under 

Part 50.100

Third, NINA requested an exemption from our financial qualifications requirements.101 

Under 10 C.F.R. §§ 52.77, 50.33(f), and Part 50, Appendix C, a combined license applicant 

must submit information that demonstrates that it either possesses or has reasonable 

assurance of obtaining the funds necessary to cover estimated construction and operating costs 

for the term of the license. Our regulations also require that an applicant identify the specific 

sources of funds on which it will rely.102 The Staff was not able to find that NINA met these 

financial qualifications requirements “primarily due to an absence of specifically identified 

sources of funds.”103

 

99 See, e.g., Ex. STP-002, NINA Pre-filed Testimony, at 9; Ex. NRC-001, Staff Information 

Paper, at 17. The Staff approved this request in 2010, but NINA has not yet installed the two 

crane foundation retaining walls. Ex. NRC-001, Staff Information Paper, at 17 (citing Letter from 

George Wunder, Sr. Project Manager, NRC to Mark McBurnett, STPNOC (Nov. 5, 2010) 

(ML102770454)). 

100 See, e.g., Ex. STP-002, NINA Pre-filed Testimony, at 9. These exclusions do not include 

Part 52 applicants, even though, for purposes of these requirements, the applications are for the 

same facility type. The Staff evaluated the request and determined that it satisfies the criteria 

for exemption, primarily because the NRC has found that these requirements are unnecessary 

for similar Part 50 applicants. Accordingly, the same exemption has been granted to applicants 

for previously-issued combined licenses. Ex. NRC-001, Staff Information Paper, at 16-17. For 

both Part 50 and Part 52 applicants, 10 C.F.R. Part 74, Subpart B (excluding section 74.17), 

contains material control and accounting performance requirements. Id.

101 See, e.g., Ex. STP-002, NINA Pre-filed Testimony, at 9. 

102 Ex. NRC-001, Staff Information Paper, at 14. 

103 Id.
- 25 - 

Outside of this adjudication, the Staff provided us a recommendation that the NRC 

proceed with a rulemaking to amend or rescind the 10 C.F.R. Part 50 financial qualifications 

demonstration requirements.104 The Staff proposed, among other things, that the financial 

qualifications requirements for merchant-plant initial-license applicants be changed to be 

consistent with the Part 70 standard, which provides that an application will be approved if the 

applicant (among other things) “appears to be financially qualified.”105 We approved the Staff’s 

recommendation and directed that in the rulemaking the Staff “should seek to develop a 

standard of review that approximates, as appropriate, the approach currently used for 10 CFR 

Part 70 applications, but does not reduce the standard of review below that of ‘appears to be 

financially qualified.’”106 We also directed the Staff to consider using an exemption process “that 

anticipates the outcome of the proposed changes to the current” requirements during the 

pendency of the rulemaking “to address existing and emergent cases.”107

The Staff issued a Draft Regulatory Basis for the Financial Qualifications for Reactor 

Licensing Rulemaking in June 2015.108 The Draft Regulatory Basis provides the basis for a 

 

104 See “Policy Options for Merchant (Non-Electric Utility) Plant Financial Qualifications,” 

Commission Paper SECY-13-0124 (Nov. 22, 2013), at 16-18 (ML13057A006). 

105 Id. at 17-18; 10 C.F.R. § 70.23(a)(5) (“An application for a license will be approved if the 

Commission determines that . . . the applicant appears to be financially qualified to engage in 

the proposed activities in accordance with the regulations in this part.”). 

106 Staff Requirements—SECY-13-0124—Policy Options for Merchant (Non-Electric Utility) Plant 

Financial Qualifications (Apr. 24, 2014), at 1 (ML14114A358) (quoting 10 C.F.R. § 70.23(a)(5)). 

107 Id. at 2 (unnumbered). 

108 Ex. NRC-001, Staff Information Paper, at 14 (citing Financial Qualifications for Reactor 

Licensing Rulemaking: Draft Regulatory Basis Document (June 2015) (ML14324A706) (Draft 

Regulatory Basis)); Financial Qualifications for Reactor Licensing; Draft regulatory basis; public 

meeting and request for comment, 80 Fed. Reg. 34,559 (June 17, 2015). 
- 26 - 

future proposed rule that, if published, would solicit public comment on a proposal to change the 

Part 50 standard. The proposed rule would not require the applicant to demonstrate that it 

possesses or can provide reasonable assurance of obtaining the funds necessary for 

construction and operation. Rather, the applicant would be held to the standard currently used 

in Part 70, that it “appears to be financially qualified.”109 Under the approach set out in the Draft 

Regulatory Basis, the applicant would provide a construction cost estimate and financial 

capacity plan.110 The plan would describe how the applicant will finance construction and 

operation of the proposed facility and would demonstrate that the applicant has the financial 

capacity to obtain the necessary financing for construction and operation.111

NINA requested an exemption from the NRC’s financial qualifications requirements in 

10 C.F.R. §§ 52.77, 50.33(f), and Part 50, Appendix C and proposed instead to satisfy a 

financial qualifications standard similar to that of 10 C.F.R. Part 70, consistent with the approach 

envisioned in our Staff Requirements Memorandum for SECY-13-0124.112 In its request, NINA 

 

109 Ex. NRC-001, Staff Information Paper, at 14. 

110 Draft Regulatory Basis at 13-14. As currently envisioned, this plan would include 

descriptions of the management team and of the anticipated funding methods and sources, 

including a discussion of past successes with such financing used in past energy or other large 

build projects. Id.

111 Id. An applicant’s financial capacity “reflects [its] level of understanding of the size and scope 

of the project, including the level of capital necessary to undertake the project, and . . . the 

organizational and human resources, experience, skills, and expertise required to obtain proper 

financing.” Id. at 14. The Draft Regulatory Basis distinguishes between those applicants that 

have more than fifty percent of their financing and those with fifty percent or less financing at the 

time of the application. For the latter, the applicant is expected to propose one or more license 

conditions that will ensure funding is available before beginning reactor construction. Id. at 15 & 

n.10 (noting that the use of license conditions is not required and that an applicant could 

“propose an alternate approach” for the NRC to consider). 

112 Letter from Scott Head, NINA, to Document Control Desk, NRC (May 18, 2015), at 2 

(ML15140A077) (NINA Exemption Request). This amended exemption request superseded an 
- 27 - 

addressed the standards governing exemptions in 10 C.F.R. §§ 52.7 and 50.12, submitted a 

financial capacity plan with proposed license conditions, and referenced previously submitted 

construction and operational cost estimates.113 The Staff reviewed NINA’s exemption request 

using the analysis it prepared for the Draft Regulatory Basis.114 The Staff concluded that NINA 

demonstrated its financial capacity, that its construction and operational cost estimates are 

reasonable, and that the proposed license conditions, as revised by the Staff, were consistent 

with our direction in the Staff Requirements Memorandum for SECY-13-0124.115 As approved 

by the Staff, the license conditions require NINA to provide updated cost estimates and 

demonstrate secured financing prior to construction and operation.116

The Staff further concluded that the exemption request satisfied the requirements of 

10 C.F.R. § 50.12.117 Section 50.12(a) provides that the Commission may grant exemptions 

from the regulations, if the exemptions are authorized by law, will not present an undue risk to 

 

earlier request: Letter from Scott Head, NINA, to Document Control Desk, NRC (June 19, 2014) 

(ML14175A142). 

113 NINA Exemption Request at 2; Ex. NRC-001, Staff Information Paper, at 15; see also Tr. at 

91-92 (Mr. Head) (discussing NINA’s financial capacity plan and stating the expectation that 

NINA will receive funding through project financing using a combination of loans under the 

Department of Energy loan guarantee program, from the Japan Bank of International 

Cooperation, and from other sources, as well as equity). 

114 See Ex. NRC-001, Staff Information Paper, at 15. 

115 Id. The comment period on the Draft Regulatory Basis ended on August 3, 2015. The Staff 

received three comments on the draft basis, all of which supported amending the financial 

qualification requirements for reactors; none suggested a stricter standard than the one the Staff 

has applied in its review of NINA’s exemption request here. Id. at 15 n.3; see also Tr. at 113-14 

(Mr. Turtil). 

116 Ex. NRC-001, Staff Information Paper, at 15. 

117 Id. 
- 28 - 

the public health and safety, and are consistent with the common defense and security and 

when special circumstances exist. First, the Staff determined that the exemption is authorized 

by law because the exemption would not conflict with the AEA or any other law.118 The Staff 

observed that the AEA affords us “broad discretion to prescribe requirements for financial 

qualifications.”119

Second, the Staff found that the exemption does not present an undue risk to the public 

health and safety because the exemption is not directly related to any safety requirements.120 

Although the financial qualifications regulations are intended to protect public health and safety 

(for example, to prevent safety lapses caused by underfunding), the Staff observed that the 

NRC has not found a direct correlation between pre-licensing financial reviews and later safe 

construction and operation, and the NRC maintains a number of programs and processes that 

more directly ensure safe construction and operation.121 Moreover, consistent with the analysis 

in its Draft Regulatory Basis, the Staff concluded that NINA meets the Part 70 standard for 

financial qualifications, as appropriately modified for a combined license applicant (that is, NINA 

 

118 Ex. NRC-008, Safety Evaluation Report, § 1.11S.5.4; see 10 C.F.R. § 50.12(a). 

119 Ex. NRC-008, Safety Evaluation Report, § 1.11S.5.4, at 1-177; see AEA § 182a., 42 U.S.C. 

§ 2232(a) (“Each application for a license hereunder . . . shall specifically state such information 

as the Commission, by rule or regulation, may determine to be necessary to decide such of the 

technical and financial qualifications of the applicant . . . .”); New England Coal. on Nuclear 

Pollution v. NRC, 582 F.2d 87, 93 (1st Cir. 1978) (“The [AEA] gives the NRC complete 

discretion to decide what financial qualifications are appropriate.”). 

120 Ex. NRC-008, Safety Evaluation Report, § 1.11S.5.4, at 1-177. 

121 Id. at 1-176; see 10 C.F.R. § 50.12(a). These programs include a detailed technical licensing 

review, the construction reactor oversight process, the reactor oversight process, the resident 

inspector program, the operating experience program, the vendor inspection program, and the 

quality assurance inspection program. Ex. NRC-008, Safety Evaluation Report, § 1.11S.5.4. 
- 29 - 

appears to be financially qualified) and the license conditions would prevent NINA from 

constructing or operating STP Units 3 and 4 unless and until the necessary funding is 

secured.122

Third, the Staff found that the exemption is consistent with the common defense and 

security.123 The Staff determined that the exemption does not relate to any requirements that 

directly govern security-related activities at proposed Units 3 and 4.124 The Staff also found that 

NINA satisfied the Part 70 standards as modified in the Draft Regulatory Basis, and, relatedly, 

the license conditions ensure that the common defense and security will not be impacted.125

And fourth, the Staff asserts that special circumstances are present as described in 

10 C.F.R. § 50.12(a)(2)(vi): there is a material circumstance not considered when the regulation 

was adopted for which it would be in the public interest to grant an exemption.126 Because the 

Staff relies exclusively on that section, we must be consulted before the exemption is granted.127 

The Staff’s Information Paper served as the necessary consultation.128 NINA is the first 

 

122 Id. at 1-777 to 1-778. 

123 Id. at 1-778. 

124 Id. 

125 Id.; see 10 C.F.R. § 50.12(a).

126 Ex. NRC-008, Safety Evaluation Report, § 1.11S.5.4, at 1-778; Ex. NRC-001, Staff 

Information Paper, at 15-16; see 10 C.F.R. § 50.12(a)(2)(vi). In its exemption request, NINA 

asserted that § 50.12(a)(2)(ii) also applies because the Part 50 financial qualification 

requirements are not necessary to achieve the purpose of the rule—to prevent safety lapses 

from underfunded projects—because the license conditions will ensure that the project will only 

proceed once adequate funding is obtained. NINA Exemption Request, Attachment 1, at 6. 

127 See 10 C.F.R. § 50.12(a)(2)(vi). 

128 See Ex. NRC-001, Staff Information Paper, at 16. 
- 30 - 

applicant to seek an initial license as a merchant plant.129 In the Staff’s view, the current Part 50 

financial qualifications standards go “beyond the NRC’s mandate of ensuring safety and have 

become an unnecessary impediment to licensing.”130 While our rules contemplate applications 

from merchant plants, “[a]ll current nuclear power reactor licensees were found to be financially 

qualified at initial licensing [of the facility] on the basis of their status as rate-regulated 

utilities.”131 Merchant plants, unlike rate-regulated utilities, may not have a predictable source of 

funds for construction or operation at the time of licensing because they cannot recover costs 

through the ratemaking process like utility applicants can.132 And without identified sources of 

funds, an applicant cannot meet our current Part 50 financial qualification standards. Consistent 

with our direction in the Staff Requirements Memorandum for SECY-13-0124, the Staff’s review 

anticipates the outcome of the proposed changes to the regulation by virtue of its use of the 

Draft Regulatory Basis.133 For this reason, and for those discussed above, we approve the 

Staff’s decision to grant NINA’s requested exemption, subject to the license conditions identified 

by the Staff. 

 

129 STP Units 3 and 4 are considered merchant plants, with over ninety percent of their 

electricity to be sold in deregulated markets. Tr. at 96 (Mr. Turtil). 

130 Ex. NRC-001, Staff Information Paper, at 16; Tr. at 100 (Mr. Turtil). 

131 Draft Regulatory Basis at 6. 

132 Id.

133 Ex. NRC-008, Safety Evaluation Report, § 1.11S.5.4, at 1-778 to 1-779. 
- 31 - 

2. Departures 

NINA identified 275 departures from the certified design in its application.134 Of the 275 

departures in the combined license application, 246 are standard departures, which would apply 

to future ABWR combined license applicants that use the STP Units 3 and 4 combined license 

application as the reference application for the ABWR.135 The Staff noted that the ABWR design 

was certified in 1997, a decade before the STP combined license application was docketed, and 

therefore, it was “reasonable to expect that improvements in technology and innovations in 

design will occur over such a period and that these improvements and innovations will result in 

proposed design changes.”136

The Staff reviewed all departures to ensure that NINA adhered to the applicable 

regulatory criteria.137 When evaluating the departures, the Staff evaluated the impacts of a 

departure in its totality; for example, a change to a pump, valve, control circuit, or piping system 

is not evaluated in isolation but may require the coordination of engineers in various disciplines 

to ensure that all of the impacts of the change are considered.138 Additionally, NINA evaluated 

the cumulative change in risk from its departures, and the Staff found that the cumulative impact 

 

134 Ex. NRC-001, Staff Information Paper, at 17; Ex. STP-002, NINA Pre-filed Testimony, at 

10-11. 

135 Ex. STP-002, NINA Pre-filed Testimony, at 11. 

136 Ex. NRC-005-R, Staff Answers to Pre-Hearing Questions, at 1. 

137 Id. 

138 Id.
- 32 - 

is not a significant change to the plants’ risk profile.139 Further, the Staff stated that granting the 

exemptions, in its view, did not result in any cumulative impacts.140

B. Site-Specific Issues Addressed in the Proceeding 

Although our review encompassed the entire application, we discuss here a brief 

selection of the topics discussed at the hearing and in responses to pre- and post-hearing 

questions. 

1. Toshiba as an Alternate Vendor 

Toshiba is referred to as an “alternate vendor” because it is not the entity that obtained 

the design certification.141 NINA submitted a due diligence report that provided its assessment 

evaluating whether Toshiba is qualified to supply the ABWR design for STP Units 3 and 4 under 

10 C.F.R. § 52.73(a).142 As part of its due diligence, NINA identified a number of potential areas 

of vulnerability for Toshiba and focused its review on those areas.143 As a result of its 

evaluation, NINA concluded that Toshiba is qualified to supply the certified design.144 To 

confirm NINA’s conclusion, the Staff reviewed the due diligence report and conducted a vendor 

inspection at Toshiba’s Isogo Nuclear Engineering Center in Yokohama, Japan.145 As part of its 

 

139 Id.

140 Id.

141 Tr. at 158 (Mr. McIntyre). 

142 Id. (Mr. McIntyre). 

143 Id. at 170-71 (Mr. Thomas). 

144 Id. at 170 (Mr. Thomas). 

145 Id. at 158 (Mr. McIntyre); Ex. NRC-008, Safety Evaluation Report, § 1.4S.4, at 1-24; 

Ex. NRC-014, Staff Presentation Slides—Safety Panel 3 (Nov. 19, 2015), at 11-14. 
- 33 - 

review, the Staff investigated whether Toshiba had access to engineering documents that are 

design basis documents for the U.S. ABWR and, if not, whether Toshiba could independently 

develop the documents.146 The Staff conducted a comprehensive evaluation of whether 

Toshiba could support the design as the original design vendor would have; the Staff assessed, 

among other things, Toshiba’s quality assurance program, subcontractor qualification 

procedures, and corrective action program.147 In response to a question at the hearing, NINA 

noted that Toshiba produced references cited in the Design Control Document, as well as 

design basis calculations requested by NINA, and satisfactorily performed calculations that had 

to be redone.148 As both the Staff and NINA noted at the hearing, Toshiba has considerable 

experience in the design and construction of nuclear power plants and has supplied major 

portions of the international design of ABWRs currently in operation.149 The Staff concluded that 

Toshiba’s programs are consistent with 10 C.F.R. Part 50, Appendix B and 10 C.F.R. Part 21 

and that Toshiba has the technical ability and access to necessary technical documentation. 

Therefore, the Staff found Toshiba to be qualified to supply the ABWR certified design under 

10 C.F.R. § 52.73(a).150

 

 

146 Tr. at 159, 174 (Mr. McIntyre), 174-75 (Mr. Tai). 

147 Ex. NRC-005-R, Staff Answers to Pre-Hearing Questions, at 4. 

148 Tr. at 172-73 (Mr. Thomas); see Ex. NRC-008, Safety Evaluation Report, § 1.4S.4. 

149 Tr. at 33-34, 152-53 (Mr. Head), 160 (Mr. McIntyre). 

150 Id. at 161 (Mr. McIntyre). 
- 34 - 

2. Fukushima Near-Term Task Force Recommendation 4.2—Mitigation Strategies for 

Beyond-Design-Basis External Events 

In SECY-12-0025, the Staff provided the Commission with proposed orders requiring, 

among other things, mitigation strategies for beyond-design-basis external events to be issued 

to all power reactor licensees and construction permit holders.151 At that time, the Staff also 

indicated its expectation that applications for combined licenses under active review (as the 

STP application was) would address all Commission-approved Fukushima recommended 

actions prior to licensing “to the fullest extent practicable.”152 In 2012, the NRC issued Order 

EA-12-049 requiring all operating reactors to develop and implement strategies to cope without 

alternating current (AC) power for an indefinite amount of time.153 The Order required all current 

license holders to use a three-phase approach for mitigating beyond-design-basis external 

events.154 The initial phase requires the use of installed equipment and resources to maintain or 

restore core cooling, containment, and spent fuel pool cooling; the transition phase requires 

providing sufficient portable, onsite equipment and consumables to maintain or restore these 

functions until offsite resources can be brought in; and the final phase requires using offsite 

resources to maintain those functions indefinitely.155 After issuance of Order EA-12-049, the 

 

151 Id. at 123 (Mr. Nolan); “Proposed Orders and Requests for Information in Response to 

Lessons Learned from Japan’s March 11, 2011, Great Tohoku Earthquake and Tsunami,” 

Commission Paper SECY-12-0025 (Feb. 17, 2012) (ML12039A111) (SECY-12-0025). 

152 SECY-12-0025 at 10-11 (addressing pending and future new reactor design certification and 

license applications); see Tr. at 123 (Mr. Nolan). 

153 Tr. at 123 (Mr. Nolan). 

154 Order EA-12-049 at 4. 

155 Id.
- 35 - 

Staff issued Interim Staff Guidance JLD-ISG-2012-01, which the Staff used to guide its review of 

NINA’s mitigation strategies for STP Units 3 and 4.156

At the hearing, NINA and the Staff both described the mitigation strategies for STP Units 

3 and 4.157 NINA explained that there is no requirement for a transition phase in NINA’s FLEX 

strategy because it can use permanently installed initial phase equipment to support a coping 

duration of at least thirty-six hours—long enough for final phase offsite equipment to arrive at 

the site.158 Nonetheless, the STP site maintains portable onsite equipment that provides 

defense in depth.159 

The mitigation strategies for STP Units 3 and 4 include unique design features or 

approaches to sustain core cooling and enhance the ability of the ABWR certified design to 

withstand a station blackout event.160 These features and approaches include: (1) enhanced 

core cooling and spent fuel pool cooling capabilities; (2) strategic management of power 

systems that can provide direct current (DC) power supplies for at least thirty-six hours; (3) use 

of the remote shutdown panel to maximize DC battery service time; (4) capability to access 

water in the ultimate heat sink for long term core cooling and spent fuel pool cooling; and (5) 

use of containment overpressure protection to ensure containment integrity.161

 

156 Tr. at 124 (Mr. Nolan); “Compliance with Order EA-12-049, Order Modifying Licenses with 

Regard to Requirements for Mitigation Strategies for Beyond-Design-Basis External Events,” 

JLD-ISG-2012-01, Rev. 0 (2012) (ML12146A014). 

157 Tr. at 119-21 (Mr. Head), 123-26 (Mr. Nolan), 127-28 (Ms. Ray). 

158 Id. at 120 (Mr. Head). 

159 Id. (Mr. Head). 

160 Ex. NRC-001, Staff Information Paper, at 23. 

161 Id. at 23-24. 
- 36 - 

The Staff reviewed the information provided by NINA using the standards set forth in 

Order EA-12-049.162 The Staff proposed a license condition requiring the licensee to develop 

“an overall integrated plan to maintain or restore core cooling, containment function, and [spent 

fuel pool] cooling capabilities in the event of a simultaneous loss of all AC power and loss of 

normal access to the [ultimate heat sink].”163 This license condition requires the licensee to 

finalize development of strategies and guidance and specify implementation details.164 Based 

on this license condition and the information NINA provided in the application, the Staff 

concluded that there is reasonable assurance that the application meets the underlying purpose 

of Order EA-12-049.165

3. Flammability Control System 

NINA proposed to eliminate the flammability control system from the ABWR certified 

design for STP Units 3 and 4. The ABWR flammability control system “consists of two 

redundant hydrogen recombiners located in secondary containment” and “was designed to 

control the potential buildup of a combustible mixture of hydrogen and oxygen inside the 

containment during a design basis accident.”166 The Staff approved this departure for STP Units 

3 and 4 because the NRC eliminated the requirement to maintain equipment needed to mitigate 

a design-basis loss of cooling accident hydrogen release, including hydrogen recombiners, 

 

162 Id. at 24 (citing Order EA-12-049). 

163 Id.

164 Tr. at 128 (Ms. Ray). 

165 Ex. NRC-001, Staff Information Paper, at 24; Ex. NRC-008, Safety Evaluation Report, § 22.2.

166 Ex. NRC-005-R, Staff Answers to Pre-Hearing Questions, at 8, 9. 
- 37 - 

when 10 C.F.R. § 50.44 was revised in 2003.167 The application for STP Units 3 and 4 meets 

the requirements of 10 C.F.R. § 50.44(c), which applies to water-cooled reactor combined 

licenses issued after 2003.168 Under section 50.44(c), reactor containments must “have a 

capability for ensuring a mixed atmosphere during design-basis and significant beyond designbasis accidents,” and license applicants must perform a structural analysis that demonstrates 

containment structural integrity in the event of an accident that releases “hydrogen generated 

from 100 percent fuel clad-coolant reaction accompanied by hydrogen burning.”169

In a pre-hearing question, we noted that section 50.44 was revised because inerted 

containments provide protection from hydrogen combustion, but the Fukushima event showed 

that hydrogen combustion events can occur outside the inerted primary containment and cause 

significant damage to the secondary containment building.170 We therefore asked whether the 

possible benefit of the flammability control system in the context of severe accident mitigation 

and recovery was considered with respect to the system’s elimination in STP Units 3 and 4.171 

The Staff responded that studies conducted since the certification of the ABWR design have 

shown that hydrogen recombiners of the size and quantity included in the ABWR design do not 

 

167 Id. at 8. 

168 See 10 C.F.R. § 50.44(c). 

169 Id. §§ 50.44(c)(1) and (5); see also Ex. STP-001, NINA Answers to Pre-Hearing Questions, 

at 9 (“The NINA review of the Fukushima event confirms that the Flammability Control System 

. . . removed from the primary containment in the ABWR design would not prevent hydrogen 

combustion in the secondary containment.”). 

170 Pre-Hearing Question Order at 6. 

171 Id.
- 38 - 

provide a safety benefit for severe accidents.172 The Staff explained that the size of the 

flammability control system was designed to account for the “combustible buildup of hydrogen 

and oxygen from a design basis metal water reaction and radiolysis of water during a loss of 

coolant accident. The severe accident amount of combustible hydrogen is much greater than 

the design basis assumptions used to size the [flammability control system].”173 As such, the 

Staff concluded there was “limited benefit” in retaining the system in support of severe accident 

mitigation and recovery.174

4. Design Basis Flood Above Plant Grade 

The Staff conducted a hydrology safety review using several potential flooding scenarios 

and determined that the most limiting flood would result from an instantaneous breach of the 

north segment of the main cooling reservoir embankment.175 NINA concluded that such a 

breach would result in a probable maximum flood of 38.8 ft (11.8 m) above mean sea level 

(MSL) and therefore proposed a design basis flood elevation of 40 ft (12.2 m) MSL.176 The Staff 

reviewed NINA’s analysis and conducted an independent confirmatory analysis.177 The power 

 

172 Ex. NRC-005-R, Staff Answers to Pre-Hearing Questions, at 9. 

173 Id. 

174 Id.

175 Ex. NRC-001, Staff Information Paper, at 25-26; Ex. NRC-008, Safety Evaluation Report, 

§§ 2.4S.4, 2.4S.10.

176 Ex. NRC-006C, South Texas Project, Units 3 and 4, Combined License Application 

Rev. 12—Part 2 (Final Safety Analysis Report) Tier 2 (2015), § 2.4S.4, at 2.4S.4-1, 2.4S.4-20 

(ML15124A421); Ex. NRC-001, Staff Information Paper, at 26. 

177 Ex. NRC-001, Staff Information Paper, at 26. 
- 39 - 

block of STP Units 3 and 4 is 34 ft (10.36 m) MSL.178 Consequently, the design basis flood is 

approximately 6 ft (1.83 m) above the grade of the power block.179 The Staff evaluated this 

proposal and concluded that the safety-related facilities will remain free from flooding.180

An NRC staff member did not concur with the Staff’s hydrological conclusions, 

specifically with respect to determining the design basis flood level and maximum groundwater 

level.181 These site parameters are important for structural design and protecting safety-related 

facilities from flooding.182 The non-concurrence stated that the design basis flood level was not 

determined accurately nor conservatively in either NINA’s application or the Staff’s Safety 

Evaluation Report.183 To resolve the issues raised by the non-concurrence, the Staff solicited 

independent expert reviewers from the University of Maryland, the U.S. Army Corps of 

Engineers, the U.S. Bureau of Reclamation, Virginia Polytechnic Institute and State University, 

Taylor Engineering Research Institute (University of North Florida), and the University of North 

Carolina.184 The independent review panel concluded that all the technical issues were resolved 

 

178 Ex. NRC-006C, Final Safety Analysis Report, § 2.4S.4, at 2.4S.4-1; Ex. NRC-001, Staff 

Information Paper, at 25. 

179 Ex. NRC-001, Staff Information Paper, at 26; Tr. at 151-52 (Mr. Head). 

180 Ex. NRC-001, Staff Information Paper, at 26; Ex. NRC-008, Safety Evaluation Report, 

§§ 2.4S.4, 2.4S.10. 

181 Ex. NRC-001, Staff Information Paper, at 27; see Non-Concurrence Process Record for 

NCP-2011-014 (Dec. 13, 2012) (ML12348A249). 

182 Ex. NRC-001, Staff Information Paper, at 27. 

183 Id. The individual asserted that the errors related to the design basis flood level resulted in 

several regulatory requirements not being met—10 C.F.R. § 52.79(a)(1)(iii); General Design 

Criterion 2, “Design bases for protection against natural phenomena,” of 10 C.F.R. Part 50, 

Appendix A; and 10 C.F.R. § 100.20(c)(3). Id.

184 Id.
- 40 - 

correctly by the Staff.185 In addition, the ACRS reviewed the non-concurrence as part of the 

ABWR Subcommittee’s review of the STP Units 3 and 4 combined license application; the nonconcurring individual made a presentation before the ACRS Subcommittee.186 The ACRS 

concurred with the Staff’s conclusions from its review of the site hydrology.187

Prior to the uncontested hearing, the non-concurring individual sent us a statement of 

technical concerns related to determining the design basis flood level for the STP combined 

license application.188 The statement was served on the parties, and we have reviewed it. At 

the hearing, the Staff indicated that it had reviewed the statement, determined that the 

statement did not add anything new to the non-concurrence, and maintained its position, 

documented in the Safety Evaluation Report, on the design basis flood level.189 Similarly, NINA 

reviewed the statement and indicated that the statement did not alter its analysis or conclusions 

on the design basis flood level for the site.190

 

 

185 Id.

186 Id. at 28. 

187 Id.; ACRS Letter at 6. 

188 Memorandum from Emile Julian, Office of the Secretary, NRC, to NINA and the Staff (Nov. 

12, 2015) (ML15316A848) (serving on the parties an email forwarding “Technical Concerns 

Regarding the Uncontested Hearing for Issuance of Combined Licenses for the South Texas 

Project Units 3 and 4, SECY 15-0123” (Nov. 2, 2015)). 

189 Tr. at 167 (Dr. Jones), 169 (Mr. Flanders). 

190 Id. at 168 (Mr. Head). 
- 41 - 

5. NRC Bulletin 2012-01—Electric Power System 

Our regulations require the use of onsite and offsite electric power systems that permit 

the functioning of structures, systems, and components important to safety.191 In Bulletin 

2012-01, the NRC requested information about operating facilities’ electric power system 

designs, in response to the loss of one of the three phases of the offsite power circuit (known as 

a single-phase open circuit condition) at Byron Station, Unit 2.192 The Byron event led to 

identification of a design vulnerability in the protection scheme for certain engineered safety 

features buses. The Bulletin was issued to notify plants of the design vulnerability and the 

potential impact on safety-related equipment.193 “The [S]taff was concerned that an 

undervoltage condition due to a loss of phase event could damage engineered safety features 

equipment and actuate protective devices.”194 To address this vulnerability, when one or more 

phases in the three phase offsite power system is lost, reactors with active safety systems, such 

as STP Units 3 and 4, should (1) detect an offsite power system open-phase circuit condition on 

the high voltage side of the main power transformer under all loading and operating 

configurations; (2) activate an alarm in the main control room; and (3) provide automatic 

mitigation and response to the event.195 The Staff determined that these steps would ensure 

that AC power, with adequate capacity and capability, is available to safety-related equipment to 

 

191 10 C.F.R. pt. 50, app. A (General Design Criterion 17), § 50.55a(h)(3). 

192 Bulletin 2012-01 at 1. NINA addressed the issues raised in the Bulletin in several responses 

to requests for additional information. Ex. NRC-008, Safety Evaluation Report, § 8.2S, at 8-36. 

193 Tr. at 129 (Ms. Ray). 

194 Ex. NRC-001, Staff Information Paper, at 28. 

195 Id. at 29; Tr. at 129-30 (Ms. Ray); Ex. NRC-008, Safety Evaluation Report, § 8.2S. 
- 42 - 

meet its intended safety function.196

NINA is the first combined license applicant to resolve the open phase issue discussed 

in Bulletin 2012-01 for an active design.197 The Staff found NINA’s solution acceptable because 

it provides features for detection and alarm in addition to automatically protecting safety-related 

equipment.198 The Staff further determined that NINA’s solution prevents safety-related or nonsafety-related loads from exceeding their ratings, which could damage equipment.199 The Staff 

noted that NINA has added ITAAC and technical specification surveillance requirements, as well 

as committed to developing procedures and training, to address implementation of this 

solution.200 The Staff concluded that the design meets the requirements in General Design 

Criterion 17 and 10 C.F.R. § 50.55a(h)(3).201

6. Reactor Vessel Material Surveillance Program 

The material surveillance program collects data used to establish the conditions under 

which the reactor vessel can be operated with adequate margins of safety against fracture 

throughout its service life. Unless the reactor vessel meets the criteria of Part 50, Appendix H, 

 

196 Ex. NRC-001, Staff Information Paper, at 29; Tr. at 130 (Ms. Ray); Ex. NRC-008, Safety 

Evaluation Report, § 8.2S. 

197 Ex. NRC-001, Staff Information Paper, at 29; Tr. at 130 (Ms. Ray). 

198 Ex. NRC-001, Staff Information Paper, at 29; Tr. at 130 (Ms. Ray); Ex. NRC-008, Safety 

Evaluation Report, § 8.2S. 

199 Ex. NRC-001, Staff Information Paper, at 29; Tr. at 130-31 (Ms. Ray); Ex. NRC-008, Safety 

Evaluation Report, § 8.2S. 

200 Ex. NRC-001, Staff Information Paper, at 29; Tr. at 131 (Ms. Ray); Ex. NRC-008, Safety 

Evaluation Report, § 8.2S. 

201 Ex. NRC-001, Staff Information Paper, at 29; Tr. at 131 (Ms. Ray); Ex. NRC-008, Safety 

Evaluation Report, § 8.2S. 
- 43 - 

Section III.A, licensees must monitor the reactor pressure vessel beltline materials through a 

surveillance program that complies with ASTM E 185-82, as modified by Part 50, Appendix H.202 

Accordingly, NINA has proposed a surveillance program for STP Units 3 and 4. The 

surveillance program is based on the testing of material specimens that are stored in 

surveillance capsules inside the reactor pressure vessel and periodically withdrawn from the 

vessel on an NRC-approved schedule.203 Licensees analyze the material specimens to 

evaluate changes, due to neutron irradiation and high temperatures, in the fracture toughness 

properties of the ferritic materials in the reactor vessel beltline region.204

The Design Control Document for the ABWR specifies the minimum number of capsules 

to be included in the ABWR (four) and provides a sample withdrawal schedule that is different 

from the schedule included in the ASTM standard.205 Further, the Design Control Document 

directs a combined license applicant to identify the withdrawal schedule for each surveillance 

capsule as part of its combined license application.206 This direction is consistent with 10 C.F.R. 

Part 50, Appendix H, which requires applicants to submit a proposed withdrawal schedule with a 

technical justification.207

 

202 10 C.F.R. pt. 50, app. H, § III.B; ASTM E 185-82, Standard Practice for Conducting 

Surveillance Tests for Light-Water Cooled Nuclear Power Reactor Vessels (1982) (ASTM E 

185-82). 

203 10 C.F.R. pt. 50, app. H, § III.B.3. 

204 Id.

205 See ABWR Design Control Document, Tier 2, § 5.3.1.6.1. 

206 Id. § 5.3.4.2 at 5.3-19. 

207 10 C.F.R. pt. 50, app. H, § III.B.3. 
- 44 - 

By way of background, in its review of the draft Design Control Document, the Staff 

noted that the applicant, GE, had only included three capsules in the proposed design.208 The 

Staff requested that GE update the number of capsules in the design to accommodate a sixtyyear service life.209 GE did so, and the Staff approved the revision to include four capsules.210 

But the Staff did not approve a withdrawal schedule for the capsules. Instead, the ABWR 

Design Control Document indicates that a combined license applicant will provide a withdrawal 

schedule for each capsule as part of its license application. The schedule reflected in the 

Design Control Document is not part of the certified design and, as such, is subject to review as 

part of the combined license application. 

In its application, NINA submitted a proposed withdrawal schedule for each unit that is 

identical to the sample schedule in the Design Control Document, but differs from the 

withdrawal schedule presented in Table 1 of ASTM E 185-82.211 But NINA did not provide a 

technical justification for the use of this schedule, nor has the Staff analyzed the proposed 

schedule to verify its compliance with 10 C.F.R. Part 50, Appendix H.212

 

208 “Final Safety Evaluation Report Related to the Certification of the Advanced Boiling Water 

Reactor Design, Main Report,” NUREG-1503, (July 1994), § 5.3.1, at 5-16 (ML080670592). 

209 Id.

210 Id. at 5-16 to 5-17. Although initial reactor licenses are issued for forty years, sufficient 

surveillance capsules must be included to provide for an effective surveillance program for the 

design life of the facility, which, in this instance, is sixty years. See id.

211 See Ex. NRC-006H, South Texas Project, Units 3 and 4, Combined License Application 

Rev. 12—Part 2 (Final Safety Analysis Report) Tier 2 (2015), § 5.3.1.6.1 at 5.3-2; § 5.3.4.2 at 

5.3-5 (ML15124A421); ABWR Design Control Document, Tier 2, § 5.3.1.6.1; ASTM E 185-82 at 

Table 1, “Minimum Recommended Number of Surveillance Capsules and Their Withdrawal 

Schedule (Schedule in Terms of Effective Full-Power Years of the Reactor Vessel).” 

212 See Tr. at 176-77; Ex. NRC-016, NRC Staff Responses to Commission Post-Hearing 

Questions (Dec. 7, 2015), at 2-3 (Staff Answers to Post-Hearing Questions); Ex. STP-016, 
- 45 - 

After our review of the proposed capsule withdrawal schedule, we note the dissimilarity 

between NINA’s proposed schedule and that in the ASTM standard, and the absence of a clear 

justification for the proposed alternative schedule. Based on our review of the record and the 

relevant requirements, we find that a license condition directing the use of the specified 

schedule in the ASTM standard is appropriate here. While NINA’s proposed schedule does not 

present an immediate safety concern, we direct the Staff to include a condition in each 

combined license to require the use of the withdrawal schedule provided in Table 1 of ASTM E 

185-82 for a three-capsule program in the initial forty-year licensing period (that is, withdrawal of 

capsules at 6 effective full power years, 15 effective full power years, and at a time where the 

neutron fluence is between one and two times the expected end-of-life fluence for the reactor 

pressure vessel).213 Consistent with the certified design, a fourth capsule would be reserved for 

a potential period of extended operation. 

We note one other matter with respect to the reactor vessel material surveillance 

program. Sections 7.3.1 and 8.2.1 of ASTM E 185-82, which are incorporated by reference in 

10 C.F.R. Part 50, Appendix H, provide criteria for dosimetry testing and require testing of 

dosimeters located inside of the capsules in accordance with ASTM Guide E 482. In its 

 

NINA’s Responses to Post-Hearing Questions (Dec. 3, 2015), at 3-4 (NINA Answers to PostHearing Questions). 

213 Table 1 of the ASTM standard provides that the first and second capsules may need to be 

withdrawn earlier than the specified times depending on other factors, but these other factors 

would not apply to STP. See Ex. NRC-016, Staff Answers to Post-Hearing Questions, at 2. 

We have not ourselves evaluated the technical merits of the proposed schedule in NINA’s 

combined license application. NINA is free to submit a license amendment request seeking to 

remove the license condition and to use an alternate withdrawal schedule accompanied by a 

technical justification, which can be evaluated by the Staff. 
- 46 - 

response to a post-hearing question on the proposed neutron dosimetry testing program, NINA 

indicated that it would not perform any testing of dosimeters located inside of the surveillance 

capsules because the linear relationship between fluence and power output precludes the need 

for such testing.214 NINA’s position is inconsistent with ASTM E 185-82, which is incorporated 

by reference into our regulations, as noted above. The ASTM standard and, by extension, our 

regulations require licensees to test dosimeters located inside of the surveillance capsules. We 

expect the Staff to ensure that the licensee implements an appropriate surveillance program, 

taking into account the internal dosimetry requirements, as part of its regular oversight of reactor 

operations. 

7. Knowledge Management 

It is uncertain when, if at all, construction of STP Units 3 and 4 would begin after 

issuance of the licenses.215 At the hearing, we explored NINA’s plans to maintain the 

knowledge gained during the combined license review, should NINA wait for an extended period 

of time to begin construction.216 Specifically, we asked about NINA’s plans for knowledge 

management and transfer to ensure that it remains technically qualified to construct and operate 

the units.217 Mr. McBurnett explained that Toshiba, the vendor for the project, has extensive 

knowledge and experience in the construction and maintenance of ABWRs (with several under 

 

214 NINA Answers to Post-Hearing Questions at 2; Post-Hearing Questions Order at 2. 

215 See, e.g., Tr. at 111 (Chairman Burns). 

216 Id. at 111-13. 

217 Id. at 111 (Chairman Burns). 
- 47 - 

construction and others now operating in Japan).218 Additionally, Mr. McBurnett stated that 

NINA is working to ensure that it maintains its records and documents in an organized, 

searchable fashion, developing expertise within the project, and maintaining contact with the 

people who have worked on the project over the years.219

8. Environmental Issues 

The proposed site is co-located with existing STP Units 1 and 2 and would use much of 

the existing infrastructure.220 As detailed in the FEIS, the impacts from building and operating 

the proposed units would be small for almost all resource areas.221 The Staff’s environmental 

review considered information from NINA’s Environmental Report; consultation with federal, 

state, tribal, and local agencies; the Staff’s independent review; and the Staff’s consideration of 

comments received during the public scoping process and the comment period on the draft 

EIS.222 The Staff did not identify any novel issues with respect to the environmental review for 

STP Units 3 and 4.223 In addition, in response to our question at the hearing, the Staff stated 

that NINA did not take any novel approaches to its impact assessments of resource areas.224

 

218 Id. at 111-12 (Mr. McBurnett). 

219 Id. at 112 (Mr. McBurnett). 

220 Id. at 188 (Ms. Vokoun). 

221 Id. at 191 (Ms. Vokoun). 

222 Id. at 197 (Ms. Vokoun). “The [S]taff addressed 378 individual comments extracted from the 

meeting transcripts, letters, and emails.” Ex. NRC-005-R, Staff Answers to Pre-Hearing 

Questions, at 42. 

223 Ex. NRC-001, Staff Information Paper, at 30. 

224 Tr. at 198 (Ms. Vokoun). 
- 48 - 

The FEIS was completed in 2011, while the Staff was still conducting its safety review of 

the application.225 Under 10 C.F.R. § 51.92, the Staff must supplement a FEIS if there are 

substantial changes in the proposed action that are relevant to environmental concerns or if 

there are new and significant circumstances or information relevant to environmental concerns 

that bear on the proposed action or its impacts. Accordingly, after publication of the FEIS, the 

Staff followed its process for consideration of new information to determine whether a 

supplement might be needed.226 The Staff’s process included an audit, conducted in February 

2015, of NINA’s process for identifying and assessing new information.227 The Staff concluded 

that the new information did not present a seriously different picture of the environmental 

impacts of constructing and operating STP Units 3 and 4 when compared to the impacts 

described in the FEIS and that supplementation was not required.228

 

225 Id. at 196 (Ms. Vokoun). 

226 Id. (Ms. Vokoun); Ex. NRC-005-R, Staff Answers to Pre-Hearing Questions, at 39 (citing 

“Staff Process for Determining if a Supplement to an Environmental Impact Statement is 

Required in Accordance with Title 10 of the Code of Federal Regulations, Part 51.92(a) or 

51.72(a)” (ML13199A170)). 

227 Tr. at 196 (Ms. Vokoun); Ex. NRC-005-R, Staff Answers to Pre-Hearing Questions, at 39-40 

(citing Memorandum from Mark D. Notich, Sr. Project Manager, NRC to Jennifer L. DixonHerrity, Environmental Projects Branch Chief, NRC (Apr. 15, 2015) (ML15040A372) (providing 

summary report of the audit results of NINA’s process for identifying new and potentially 

significant information)); see also supra at 13-14 & n.48 (regarding the Staff’s consideration of 

the Continued Storage Rule and associated GEIS as potentially new and significant 

information). 

228 Ex. NRC-005-R, Staff Answers to Pre-Hearing Questions, at 40. Since the FEIS was 

completed, one new bird species has been federally listed as threatened under the Endangered 

Species Act and potentially occurs in the landscape surrounding the STP site—the rufa red knot 

(Calidrus canutus rufa). Id. at 45. Based on the review of information provided by experts from 

NINA and the U.S. Army Corps of Engineers, the Staff concluded that the STP project would not 

affect the rufa red knot, as it is a shorebird and the STP site does not provide, and is some 

distance from, its preferred habitat—beachfront and shores. Id. Because the Staff concludes 
- 49 - 

In pre-hearing questions and at the hearing, we explored the possible impacts of recent 

drought conditions in the area of the STP site.229 NINA noted that drought conditions are not 

uncommon in Texas and were considered during the original design of the STP site.230 Further, 

the “site was originally designed to accommodate four operating units and the Main Cooling 

Reservoir (MCR) was sized accordingly. Also, sufficient senior water rights were procured to 

ensure that four units could operate even under severe drought conditions.”231 NINA 

represented that it does not anticipate the need for any new water appropriations to support 

STP Units 3 and 4.232 In part because of its ability to operate during severe drought conditions, 

NINA asserts that the STP site remains the obviously superior site even when recent drought 

conditions are considered.233 Similarly, the Staff recognized that Texas experiences frequent 

droughts and considered the drought of record that occurred in the 1950s and was discussed in 

 

there would be no effect on the species, the Staff is not required to seek concurrence from the 

U.S. Fish and Wildlife Service or take further action under the Endangered Species Act. Id.

229 See Ex. NRC-005-R, Staff Answers to Pre-Hearing Questions, at 42-44; Ex. STP-001, NINA 

Answers to Pre-Hearing Questions, at 44-45; Tr. at 199-200, 202-07. The Staff recognized that 

2011 was the driest year on record for Texas and the State remained in severe drought 

condition from late 2010 until recently. Ex. NRC-005-R, Staff Answers to Pre-Hearing 

Questions, at 42. 

230 Ex. STP-001, NINA Answers to Pre-Hearing Questions, at 44. 

231 Id.

232 Id.

233 Id.
- 50 - 

the FEIS.234 Because the recent severe drought was bounded by the earlier drought of record, 

the Staff’s impact evaluation in the FEIS did not change based on the recent drought.235

We also asked whether the recent drought conditions impacted any of the FEIS 

conclusions related to terrestrial ecological impacts.236 Both NINA and the Staff reiterated that 

droughts are not uncommon in the area, and that the recent drought was not as severe as the 

drought of record discussed in the FEIS.237 NINA further noted that the proposed location for 

STP Units 3 and 4 consists mainly of areas that do not offer particularly attractive habitat to the 

terrestrial species that inhabit the site.238 Similarly, the Staff responded that the plants and 

wildlife on the site are expected to be broadly tolerant of extreme environmental conditions such 

as droughts, but also that loss or degradation of these resources would only be of minimal 

ecological significance.239 Therefore, although the Staff did not perform a separate analysis of 

the impacts of the recent drought on terrestrial ecological resources, the Staff does not expect 

that any of the impact determinations would have changed.240 

 

234 Ex. NRC-005-R, Staff Answers to Pre-Hearing Questions, at 42. 

235 Id.

236 Pre-Hearing Questions Order at 27. 

237 Ex. STP-001, NINA Answers to Pre-Hearing Questions, at 45; Ex. NRC-005-R, Staff 

Answers to Pre-Hearing Questions, at 43. 

238 Ex. STP-001, NINA Answers to Pre-Hearing Questions, at 45. 

239 Ex. NRC-005-R, Staff Answers to Pre-Hearing Questions, at 43. 

240 Id.
- 51 - 

C. Findings 

We have conducted an independent review of the sufficiency of the Staff’s safety 

findings, with particular attention to the topics discussed above. Our findings, however, are 

based on the entire record. Based on the evidence presented in the uncontested hearing, 

including the Staff’s review documents and the testimony provided, we find that the applicable 

standards and requirements of the AEA and the NRC regulations have been met. The required 

notifications to other agencies or bodies have been duly made.241 NINA is technically and 

financially qualified to engage in the activities authorized. We find that there is reasonable 

assurance that the facility will be constructed and operated in conformity with the licenses, the 

provisions of the AEA, and the NRC’s regulations and that issuance of the licenses will not be 

inimical to the common defense and security or to the health and safety of the public. In 

addition, we find that the Staff’s proposed regulatory exemptions meet the standards in 

10 C.F.R. § 50.12. And finally, we find that the Staff’s proposed license conditions as well as 

the license condition we direct the Staff to include, discussed in Section II.B.6 above, are 

 

241 The Staff notified the Electric Reliability Council of Texas, the Public Utility Commission of 

Texas, and the Federal Energy Regulatory Commission about the combined license application 

in May 2015. Ex. NRC-001, Staff Information Paper, at 30 (citing Letter from Tom Tai, NRC, to 

Craven Crowell, Electric Reliability Council of Texas (May 5, 2015) (ML15085A440); Letter from 

Tom Tai, NRC, to Brian Almon, Public Utility Commission of Texas (May 5, 2015) 

(ML15085A370); Letter from Tom Tai, NRC, to Kimberly Bose, Federal Energy Regulatory 

Commission (May 5, 2015) (ML15085A430)). The Staff published notices of the application in 

advance of public EIS scoping meetings on January 27, 2008, and February 3, 2008, in the Bay 

City Tribune and Victoria Advocate. Id. Notices of the combined license application were also 

published in advance of public meetings on the draft EIS on April 25, 2010, May 2, 2010, and 

May 5, 2010, in the same papers. Id. at 30-31. In addition, pursuant to 10 C.F.R. § 50.43(a)(3), 

the Staff published a notice of the application in the Federal Register on April 23, 2015; April 28, 

2015; May 6, 2015; and May 12, 2015 (at 80 Fed. Reg. 22,746; 80 Fed. Reg. 23,597; 80 Fed. 

Reg. 26,104; and 80 Fed. Reg. 27,190, respectively). Id. at 31. 
- 52 - 

appropriately drawn and sufficient to provide reasonable assurance of adequate protection of 

public health and safety. 

We also conducted an independent review of the Staff’s environmental analysis in the 

FEIS, taking into account the particular requirements of NEPA. NEPA section 102(2)(A) 

requires agencies to use “a systematic, interdisciplinary approach which will insure the 

integrated use of the natural and social sciences and the environmental design arts” in decisionmaking that may impact the environment.242 We find that the environmental review team used 

the systematic, interdisciplinary approach that NEPA requires.243 The environmental review 

team consisted of more than sixty individuals with expertise in disciplines including ecology, 

geology, hydrology, radiological health, socioeconomics, and cultural resources.244

NEPA section 102(2)(E) calls for agencies to study, develop, and describe appropriate 

alternatives.245 The alternatives analysis is the “heart of the environmental impact statement.”246 

Based on the discussion in the FEIS and the Staff’s testimony at the hearing, we find that the 

environmental review identified an appropriate range of alternatives with respect to alternative 

power sources, alternative sites, and alternative system designs and adequately described the 

 

242 NEPA § 102(2)(A), 42 U.S.C. § 4332(2)(A). 

243 See, e.g., Tr. at 188-91 (Ms. Vokoun) (providing an overview of the Staff’s environmental 

review methodology); Ex. NRC-015, Staff Presentation Slides—Environmental Panel (Nov. 19, 

2015), at 3-6, 9-11. 

244 See Ex. NRC-010B, FEIS, app. A. The team consisted of individuals from the NRC, the U.S. 

Army Corps of Engineers, Pacific Northwest National Laboratory, and Idaho National 

Laboratory. Id.

245 NEPA § 102(2)(E), 42 U.S.C. § 4332(2)(E). 

246 10 C.F.R. pt. 51, app. A, § 5. 
- 53 - 

environmental impacts of each alternative.247 We find reasonable the Staff’s conclusion that 

none of the alternatives considered is environmentally preferable to the proposed action.248

NEPA section 102(2)(C) requires us to assess the relationship between local short-term 

uses and long-term productivity of the environment, to consider alternatives, and to describe the 

unavoidable adverse environmental impacts and the irreversible and irretrievable commitments 

of resources associated with the proposed action.249 The discussion of alternatives is in 

Chapter 9 of the FEIS; the other items are discussed in Chapter 10.250 The review team found 

the principal short-term benefit of the project to be the production of electrical energy.251 The 

review team also found that the site would have much greater economic productivity hosting the 

reactors than it would if used for agriculture or other probable uses of the site.252 While the 

review team noted there would be an impact to long-term productivity when the plant is not 

immediately dismantled at the end of operation, the team found that “the enhancement of 

regional productivity resulting from the electrical energy produced by the plant is expected to 

 

247 See, e.g., Tr. at 193-95 (Mr. Kugler); Ex. NRC-010A, FEIS, ch. 9. 

248 See, e.g., Tr. at 195 (Mr. Kugler); Ex. NRC-010A, FEIS, § 9.2, at 9-31, 9-33; § 9.3, at 9-207; 

§ 9.4, at 9-215. 

249 NEPA § 102(2)(C)(ii)-(v), 42 U.S.C. § 4332(2)(C)(ii)-(v). 

250 See Ex. NRC-010A, FEIS, chs. 9-10. 

251 Id., § 10.3, at 10-13. 

252 Id., § 10.3, at 10-13 to 10-14. 
- 54 - 

result in a correspondingly large increase in regional long-term productivity that would not be 

equaled by any other long-term use of the site.”253

Chapter 10 of the FEIS includes tables listing the unavoidable adverse environmental 

impacts during preconstruction, construction, and operation, along with actions to mitigate those 

impacts.254 The review team found that the unavoidable impacts during preconstruction and 

construction would be small for all resource areas except for socioeconomic impacts—physical 

impacts, demography, economic impacts, and community services and infrastructure—which 

would be small to moderate.255 The impact for economics would be beneficial.256 For operation, 

the review team found that the unavoidable adverse impacts would be small for all resource 

areas except economics, where the impacts would be beneficial and small to large.257

Finally, with regard to irreversible and irretrievable commitments of resources, the review 

team concluded that disposal of radioactive and nonradioactive wastes would require the longterm or irreversible commitment of land and over 22,000 gallons per minute (83,279 liters per 

minute) of cooling water would be lost through evaporation during operation.258 While there 

would be both temporary and long-term changes to the abundance and distribution of terrestrial 

biota at the site, there is enough suitable habitat elsewhere in the area such that changes would 

 

253 Id. at 10-14. The review team also noted that “most long-term impacts resulting from landuse preemption by plant structures can be eliminated by removing these structures or by 

converting them to other productive uses.” Id.

254 Id. at Tables 10-1 and 10-2. 

255 Id. at Table 10-1. 

256 Id.

257 Id. at Table 10-2. 

258 Id. §§ 10.4.1.1 and 10.4.1.2. 
- 55 - 

not result in adverse impacts to the regional populations despite localized permanent loss of 

habitat.259 With respect to aquatic biota, the review team expects preconstruction, construction, 

and operation to adversely affect the abundance and distribution of the aquatic community, 

including designated essential fish habitat in certain areas of the Colorado River.260 The review 

team predicts that activities related to STP Units 3 and 4 would have more than minimal but less 

than substantial adverse effect on essential fish habitat in the Colorado River.261 The review 

team expects that the aquatic habitat and populations would recover after Units 3 and 4 

permanently cease operations and the plant is decommissioned.262 The review team also 

concluded that during the construction of Units 3 and 4, the materials used and energy 

consumed, “while irretrievable, would be of small consequence with respect to the availability of 

such resources.”263 With regard to operation of the proposed units, the review team determined 

that uranium would be irretrievably committed, but it would be negligible in comparison to the 

availability of uranium ore and existing stockpiles of highly enriched uranium in the United 

States and Russia that could be processed into fuel.264

We must weigh these unavoidable adverse environmental impacts and resource 

commitments—the environmental “costs” of the project—against the project’s benefits.265 

Considering the need for power in the region and the expected increase in productivity, jobs, 

 

259 Id. § 10.4.1.3. 

260 Id.

261 Id.

262 Id.

263 Id. § 10.4.2. 

264 Id.

265 10 C.F.R. § 51.107(a). 
- 56 - 

and tax revenue as described in the hearing and in the FEIS, we find that the benefits of the 

project outweigh the costs described above. Moreover, we have considered each of the 

requirements of NEPA section 102(2)(C) and find nothing in the record that would lead us to 

disturb the Staff’s conclusions on those requirements. 

In sum, for each of the environmental topics discussed at the hearing and in this 

decision, we find that the Staff’s review was reasonably supported in logic and fact and 

sufficient to support the Staff’s conclusions. Based on our review of the FEIS, we also find that 

the remainder of the FEIS was reasonably supported and sufficient to support the Staff’s 

conclusions. 

Therefore, as a result of our review of the FEIS environmental analysis, and in 

accordance with the Notice of Hearing for this uncontested proceeding, we find that the 

requirements of NEPA section 102(2)(A), (C), and (E), and the applicable regulations in 

10 C.F.R. Part 51, have been satisfied with respect to the combined license application. We 

independently considered the final balance among conflicting factors contained in the record of 

this proceeding. We find, after weighing the environmental, economic, technical, and other 

benefits against environmental and other costs, and considering reasonable alternatives, that 

the combined licenses should be issued. 

 
- 57 - 

 CONCLUSION 

We find that, with respect to the safety and environmental issues before us today, the 

Staff’s review of NINA’s combined license application was sufficient to support the findings in 

10 C.F.R. §§ 52.97(a) and 51.107(a). We authorize the Director of the Office of New Reactors 

to issue the combined licenses for the construction and operation of South Texas Project Units 

3 and 4 subject to the directions and modifications contained herein.266 We authorize the Staff 

to issue the record of decision. 

IT IS SO ORDERED. 

For the Commission 

 NRC SEAL /RA/ 

___________________________ 

Annette L. Vietti-Cook 

Secretary of the Commission 

Dated at Rockville, Maryland, 

this 9th day of February 2016. 

 

266 See supra section II.B.6. 
UNITED STATES OF AMERICA 

NUCLEAR REGULATORY COMMISSION 

In the Matter of ) 

 ) 

NUCLEAR INNOVATION NORTH AMERICA, LLC ) Docket Nos. 52-012-COL and 52-013-COL 

 ) 

 ) 

 (South Texas Project, Units 3 and 4) ) 

 (Mandatory Hearing) ) 

 

CERTIFICATE OF SERVICE 

I hereby certify that copies of the foregoing COMMISSION MEMORANDUM AND ORDER 

CLI-16-02 have been served upon the following persons by the Electronic Information Exchange. 

U.S. Nuclear Regulatory Commission 

Office of Commission Appellate Adjudication 

Mail Stop: O-7H4 

Washington, DC 20555-0001 

 E-mail: ocaamail@nrc.gov

U.S. Nuclear Regulatory Commission 

Office of the Secretary of the Commission 

Mail Stop: O-16C1 

Washington, DC 20555-0001 

Hearing Docket 

E-mail: hearingdocket@nrc.gov

Morgan, Lewis & Bockius, LLP 

1111 Pennsylvania Ave., NW 

Washington, DC 20004 

Counsel for the Applicant 

Stephen J. Burdick, Esq. 

Steven P. Frantz, Esq. 

John E. Matthews, Esq. 

Mary Freeze, Assistant 

Audrea Salters, Legal Secretary 

E-mail: 

sburdick@morganlewis.com

sfrantz@morganlewis.com; 

jmatthews@morganlewis.com

mfreeze@morganlewis.com; 

asalters@morganlewis.com

U.S. Nuclear Regulatory Commission 

Office of the General Counsel 

Mail Stop - O-15 D21 

Washington, DC 20555-0001 

Michael Spencer, Esq. 

Anthony C. Wilson, Esq. 

Susan Vrahoretis, Esq. 

Megan Wright, Esq. 

E-mail: 

michael.spencer@nrc.gov

anthony.wilson@nrc.gov

susan.vrahoretis@nrc.gov 

megan.wright@nrc.gov 

OGC Mail Center : 

OGCMailCenter@nrc.gov

[Original signed by Herald M. Speiser ] 

 Office of the Secretary of the Commission 

Dated at Rockville, Maryland 

this 9th day of February, 2016