As construction of new reactors continues at the Summer and Vogtle sites, the NRC staff and Commission continue to grapple with issues related to the licensing "end game" – that is the process related to allowing the plant to go into operation.

A combined license (COL) holder constructing a new nuclear plant may not operate the facility until the NRC determines that all Inspections, Tests, Analyses, and Acceptance Criteria (ITAAC) have been met (see 10 C.F.R. § 52.103(g)). NRC regulations also provide an opportunity for interested persons to request a hearing on the licensee's conformance with the ITAAC. To obtain a hearing, petitioners must show, prima facie, that (1) one or more of the ITAAC have not or will not be met, and (2) the consequences of nonconformance with the ITAAC would be contrary to reasonable assurance of adequate protection of safety. The NRC may still authorize interim operation pending the completion of an ITAAC hearing if, notwithstanding the petitioner's prima facie showing, there is reasonable assurance of adequate protection during the interim period of operation, and the ITAAC have been met. 

Authorizing interim operation during the pendency of an ITAAC hearing raises questions regarding how the Commission could make the adequate protection determination to allow interim operation even though the petitioner has made a prima facie showing above. The NRC staff explained in a recent paper to the Commission that interim operation could be permitted if the petitioner's prima facie showing relates to alleged safety consequences that will not arise during the period of interim operation (i.e., a longer-term issue) or if interim mitigation measures can be taken. 

The staff also addressed a potential conflict that would arise if the Commission were to make the 52.103(g) ITAAC finding required for interim operation and then preside over a hearing challenging those same ITAAC. To resolve this situation, the Commission approved the staff's recommendation that it delegate to the staff the authority to make the 52.103(g) finding. This approach avoids the awkwardness of the Commission determining that the ITAAC have been satisfied, while simultaneously presiding over a hearing challenging the completion of those ITAAC. The Commission would still be the decider of whether to allow interim operation.

The Commission also directed agency attorneys to develop options for ITAAC hearing formats for Commission review and approval. The Commission specified that those procedures should be "developed, deliberated, and resolved within the next 12 to 18 months." Given its approach to the uncontested, "mandatory" COL hearings, the Commission may adopt a similar, legislative-style approach for ITAAC hearings. Timely and efficient ITAAC hearings will be essential, as the critical path adjudicatory hurdle before a new reactor can become fully operational.