[Federal Register Volume 76, Number 235 (Wednesday, December 7, 2011)]
[Proposed Rules]
[Pages 76322-76327]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-31365]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 /
Proposed Rules
[[Page 76322]]
NUCLEAR REGULATORY COMMISSION
10 CFR Part 50
[Docket No. PRM-50-94; NRC-2010-0004]
Petition for Rulemaking Submitted by Sherwood Martinelli
AGENCY: Nuclear Regulatory Commission.
ACTION: Petition for rulemaking; denial.
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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC or the Commission)
is denying a petition for rulemaking (PRM) submitted by Mr. Sherwood
Martinelli (the petitioner) (PRM-50-94). The petitioner requests that
the NRC amend its regulations as they relate to decommissioning and
decommissioning funding. Specifically, the petitioner requests that the
NRC revise its reporting requirements, restrict funding mechanisms,
require deposits within 90 days to cover shortfalls regardless of
cause, amend the definition of the safe storage (SAFSTOR)
decommissioning option, and eliminate the ENTOMB decommissioning
option.
DATES: The docket for the petition for rulemaking, PRM-50-94, is closed
on December 7, 2011.
ADDRESSES: You can access publicly available documents related to this
petition for rulemaking using the following methods:
NRC's Public Document Room (PDR): The public may examine
and have copied, for a fee, publicly available documents at the NRC's
PDR, O-1 F21, One White Flint North, 11555 Rockville Pike, Rockville,
Maryland 20852.
NRC's Agencywide Documents Access and Management System
(ADAMS): Publicly available documents created or received at the NRC
are available online at the NRC Library at http://www.nrc.gov/reading-rm/adams.html. From this page, the public can gain entry into ADAMS,
which provides text and image files of NRC's public documents. If you
do not have access to ADAMS, or if there are problems in accessing the
documents located in ADAMS, contact the NRC PDR reference staff at 1-
(800) 397-4209, (301) 415-4737, or by email to [email protected].
Federal rulemaking Web site: Public comments and
supporting materials related to this petition for rulemaking can be
found at http://www.regulations.gov by searching on Docket ID: NRC-
2010-0004. Address questions about NRC dockets to Carol Gallagher,
telephone (301) 492-3668; email [email protected].
FOR FURTHER INFORMATION CONTACT: Aaron L. Szabo, Office of Nuclear
Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC
20555; telephone: (301) 415-1985 or email: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
II. Avoiding Legacy Sites
a. Revise Reporting Requirements
b. Restrict Funding Mechanisms and Increase Financial Assurance
III. Changes to SAFSTOR and ENTOMB Decommissioning Options
IV. Public Comments on the Petition
V. Reason for Denial
I. Background
On December 23, 2009, the NRC received a petition for rulemaking
filed by Mr. Sherwood Martinelli (ADAMS Accession No. ML093620175). The
petitioner requests that the NRC amend its regulations in Title 10 of
the Code of Federal Regulations (10 CFR) part 50, ``Domestic Licensing
of Production and Utilization Facilities,'' to require yearly reporting
by licensees on the status of the financial mechanisms used to ensure
funding for the decommissioning of nuclear power plants, and biannual
reporting if the license is within 5 years of expiration. The
petitioner further requests that the NRC require additional deposits to
the funding accounts within 90 days from the time a shortage is noted
in the annual reports. The petitioner requests that the regulations be
revised to require that licensees create a financial mechanism, such as
a trust fund with a host State, controlled and managed by that State,
to ensure that there is sufficient funding to pay for the ultimate
decommissioning of the facility. The petitioner also requests that the
NRC amend its regulations to clarify that a licensee's choice of
alternative decommissioning strategy must result in the return of the
site to unrestricted use within 60 years, and that the NRC eliminate
the ENTOMB strategy as an option. On February 26, 2010 (75 FR 8843),
the NRC published a Federal Register Notice (FRN) announcing the
receipt and docketing of the petition for rulemaking as PRM-50-94 and
requesting public comment from interested parties. The comment period
closed on May 12, 2010.
The petitioner also makes two claims in PRM-50-94 that are not
being addressed in the PRM process under 10 CFR 2.802, ``Petition for
rulemaking:'' (1) Entergy Nuclear Operations, Inc. (Entergy) is
violating NRC rules and regulations by allowing Indian Point Nuclear
Generating Unit No. 1 (IP1) to remain in SAFSTOR, is wrongfully and
illegally depending on parts of IP1 to help run Indian Point Nuclear
Generating Units No. 2 and 3 (IP2 and IP3), and is using the reactor of
IP1 as an illegal storage/dumping ground for radiological waste streams
from the continued operations of IP2 and IP3; and (2) the NRC has
negligently allowed certain licensees to violate the current
regulations on funding and the filing of reports.
The petitioner's first claim contains general assertions of
violations but does not ask for enforcement-related action; therefore
the NRC did not consider this under the 10 CFR 2.206 process. Further,
the petitioner's claim was not considered within the allegation process
because NRC regulations do not disallow a unit from remaining in
SAFSTOR and IP2 and IP3 are allowed to utilize structures, systems and
components of IP1 in accordance with their 10 CFR Part 50 licenses. The
NRC's recognition of this situation is evidenced by the Staff's
statement in NUREG-1437, Supplement 38, ``General Environmental Impact
Statement for License Renewal of Nuclear Plants Regarding Indian Point
Nuclear Generating Unit Nos. 2 and 3,'' (ADAMS Accession No.
ML103350405) that ``radioactive waste storage and process facilities
located in IP1 provide additional waste processing services for IP2.''
The NRC has no regulations forbidding the storage of radioactive waste
at a 10 CFR part 50 licensee's facility, although these licensees must
obtain NRC approval for onsite storage of radioactive waste. The NRC's
regulations at 10 CFR part 20, ``Standards for Protection against
[[Page 76323]]
Radiation,'' state the general requirements for ensuring that
radioactive waste is stored safely and securely. Also, the NRC
routinely inspects licensees to ensure radioactive waste is maintained
safely and securely under the Reactor Oversight Process. To address the
petitioner's second claim, this petition has been forwarded to the
NRC's Office of the Inspector General for a determination of whether
the claim qualifies as an allegation of wrongdoing.
II. Avoiding Legacy Sites
a. Revise Reporting Requirements
The petitioner requests that the NRC amend its requirements
pertaining to the frequency of reporting the status of decommissioning
funding from once every 2 years to once every year, and from annual to
biannual reporting if the license is within 5 years of expiration.
Although no specific NRC requirement is cited, the Commission believes
that the petitioner is referring to 10 CFR 50.75(f)(1), which requires
each power reactor licensee to report to the NRC, on a calendar year
basis, at least once every 2 years, on the status of its
decommissioning funding for each reactor or part of a reactor that it
owns.
The petitioner's basis and rationale for requesting these
amendments is the belief that with the current state of the economy, a
2-year reporting requirement is not adequate to ensure the safety and
adequacy of funds set aside for the decommissioning of a nuclear power
plant. The petitioner also believes that without this additional
assurance, host communities and taxpayers would be left with legacy
sites,\1\ for which communities and taxpayers would be responsible for
funding the decommissioning activities.
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\1\ A legacy site is a facility that is in decommissioning
status with complex issues and an owner who cannot complete the
decommissioning work for technical or financial reasons. (73 FR
3812, 3813; January 22, 2008).
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b. Restrict Funding Mechanisms and Increase Financial Assurance
The petitioner requests that the financial assurance section of the
NRC's decommissioning funding requirements be replaced to require that,
before nuclear power plant operations commence, licensees deposit or
create a financial mechanism (such as a trust fund) with the host State
to be controlled and managed by that State to ensure that there will be
sufficient funding for the ultimate decommissioning of the facility.
Also, the NRC should require that licensees make additional deposits
into the fund within 90 days of the identification of any shortfalls in
funding. The petitioner believes that these measures would provide the
public reasonable assurance that sufficient funds for cleanup will be
available at the time of decommissioning. The petitioner does not
provide a specific citation for the regulatory text to be revised;
however, decommissioning trust fund options are included in 10 CFR
50.75(e)(1).
III. Changes to SAFSTOR and ENTOMB Decommissioning Options
The petitioner further requests that the ``rules'' governing
alternative decommissioning strategies be modified. The first option
for decommissioning is ENTOMB, which involves removing all fuel and
radioactive fluids and wastes and possibly removing selected nuclear
components. The remaining radioactive components are sealed into the
containment structure. The second option is DECON, which involves the
removal of radioactive components, total dismantlement of the facility,
and decontamination of remaining structures to a level that permits
release for unrestricted use and termination of the license. The last
type is SAFSTOR, which is often considered ``delayed DECON,'' and
involves initially removing all fuel and radioactive wastes and
liquids, maintaining the facility in a condition that allows the decay
of radioactivity to reduce radiation levels at the facility, and then
decontaminating and dismantling the facility. The alternative
decommissioning options, DECON, SAFSTOR, and ENTOMB, are not defined in
NRC regulations but are described in a number of NRC documents. For
example, NUREG-1713, ``Standard Review Plan for Decommissioning Cost
Estimates for Nuclear Power Plants,'' (ADAMS Accession No. ML043510113)
contains a description of the options, as does the NRC Fact Sheet,
Decommissioning Nuclear Power Plants. Therefore, the NRC is treating
this portion of the petition for rulemaking as a request to codify the
options in 10 CFR 50.75, ``Reporting and Recordkeeping for
Decommissioning Planning,'' as modified by the petitioner. The
petitioner believes that the SAFSTOR decommissioning option allows
licensees to turn the reactor sites into long-term high-level waste
storage facilities. The petitioner cites the NRC Fact Sheet,
Decommissioning Nuclear Power Plants (although the petitioner refers to
it as ``the current rule''), which states that a decision by a licensee
to adopt a combination of DECON and SAFSTOR may be based on factors
such as the availability of waste disposal sites. The petitioner
believes that this wording creates a loophole whereby a site choosing
the SAFSTOR option would not be returned to unrestricted use within a
period of 60 years from the time reactor operation ceases. The
petitioner requests that the NRC amend its regulations to clarify that
a licensee's choice of alternative decommissioning strategy must result
in the return of the site to unrestricted use within 60 years and that
the NRC eliminate the ENTOMB strategy as an option.
IV. Public Comments on the Petition
The NRC received one set of comments on PRM-50-94 from the Nuclear
Energy Institute (NEI or the commenter), dated May 12, 2010 (ADAMS
Accession No. ML101340042). The NEI's comments and the NRC responses
are provided in this section.
Comment 1: Frequency of Reporting Decommissioning Funding Status
The NEI stated that requiring more frequent reporting on the status
of decommissioning funds will not necessarily yield useful or
actionable information when dealing with long-term investments, such as
nuclear power plant decommissioning trust funds. The basis of the
comment was that more frequent reporting during financially turbulent
times will necessarily produce information reflecting short-term market
fluctuations. The NEI stated that precipitous modifications to long-
term investment strategies could result in tax consequences, negatively
affect corporate credit ratings, and divert capital from the operation
of existing plants. The NEI described how NRC regulations require more
detailed cost estimates as a licensee approaches the cessation of
operations and license termination. The NEI stated that NRC regulations
allow the NRC to request information to confirm a licensee's compliance
with financial assurance requirements. The NEI stated that it disagreed
with the suggested revision because the petitioner did not provide an
adequate basis for increasing the frequency of the decommissioning fund
status reports required by 10 CFR 50.75(f)(1) and (2).
NRC Response
The NRC uses the information contained in licensee's periodic
financial reports to conduct a compliance check and to assess the
ability of the licensee to continue to provide financial assurance in
the future. Depending on the result of the NRC's assessment, the
information may indeed be actionable and may indicate
[[Page 76324]]
that additional oversight is appropriate for a particular licensee. For
example, during the financially turbulent times of 2009, the NRC
increased the frequency of reporting on decommissioning funding, and
the information obtained was used as the basis for taking action at
numerous reactor facilities that reported shortfalls in financial
assurance.
The commenter's statement regarding the potential adverse effects
of making precipitous changes in the investment strategy is a separate
issue from the frequency of submitting a decommissioning fund status
report. Similarly, the commenter's description of the decommissioning
cost estimates required as a power reactor approaches the cessation of
operations and license termination are issues separate from the
frequency of the fund status report.
The NRC staff finds analysis of the market impacts on available
funding to be useful and actionable. The commenter's statement, that
the NRC can require more frequent reporting under its existing rules,
is correct. Section V, Reason for Denial, of this document provides
additional discussion of how the NRC can, and in many cases does
require, more frequent reporting under its existing rules.
Comment 2: Require Trust Fund Management by the Host State
The NEI stated that requiring the licensee's host State to manage
the decommissioning trust funds and to periodically report on the
status of such funds may not be constitutional. The NEI stated that
management of funds by a State government does not immunize the funds
from the effects of fluctuating market conditions, as demonstrated by
the challenges associated with management of State pension funds. The
NEI stated that the formation of subsidiaries and the buying and
selling of property are legitimate means of doing business which do not
clearly require an amendment to the NRC's regulations. The NEI stated
that decommissioning funding, and continued compliance with the
Commission's funding requirements, is already considered in the context
of Commission reviews of license amendment requests related to changes
in ownership and corporate structure.
NRC Response
The NRC does not need to reach the issue of constitutionality with
respect to its authority to require a State government to manage a
licensee's decommissioning trust funds. The NRC has no authority under
the Atomic Energy Act of 1954, as amended, to require a State to act as
a trustee.
Comment 3: Require Deposits Into Trust Fund Within 90 Days of a
Shortfall
The NEI stated that requiring that all funding shortfalls be
corrected within 90 days of discovery, if enacted, could have two
adverse effects on a licensee. First, the NEI states that depositing
funds into a trust account within 90 days of reporting a shortfall
would force a utility to pay an unnecessary premium for decommissioning
funds that might not be used for decades. Second, the premium would
likely have an immediate impact on the company's financial health and
operations. The NEI stated that the NRC's Chairman expressed confidence
in the NRC's overall approach to decommissioning funding in view of the
fact that most licensees maintained adequate funds during the economic
downturn in 2008 and 2009. The NEI stated that over 70 percent of
operating reactor units did not experience shortfalls in
decommissioning funding in 2008. The NEI stated that the NRC should
maintain the flexibility to work with a licensee in a reasonably
expeditious manner, informed by the amount of the shortfall, current
market conditions, and the date the funds will likely be needed.
NRC Response
The provisions of 10 CFR 50.75(e) allow several methods for a
licensee to provide financial assurance in addition to making deposits
into a trust fund. The NRC determined that each of the methods provides
adequate financial assurance. The NRC agrees that the flexibility
provided by its existing rules would be reduced if all funding
shortfalls were required to be corrected by making deposits into the
decommissioning trust fund within 90 days. The NRC also agrees that the
agency's current requirements for the timeline to address funding
shortfalls has continued to provide assurance of adequate funding.
Comment 4: Alternative Decommissioning Strategies
The commenter stated that, to the extent that the petition
implicates enforcement action, the appropriate response should be
through the request for enforcement process of 10 CFR 2.206, rather
than the petition for rulemaking process of 10 CFR 2.802.
The commenter provided several reasons for its conclusion that the
NRC should not amend its regulations or guidance to limit the SAFSTOR
option or eliminate the ENTOMB option for decommissioning power
reactors. The commenter stated that the information presented in the
petition regarding SAFSTOR and ENTOMB does not appear in the NRC's
regulations. Rather, it is found in an NRC fact sheet dated January
2008, and in several NRC guidance documents. The commenter concluded
that the petition appears to request modification of the fact sheet and
possibly the guidance documents, rather than the NRC's regulations. The
commenter stated that the NRC's radiological criteria for license
termination, Subpart E to 10 CFR part 20, were developed through a
notice-and-comment rulemaking process. The rules of Subpart E permit
license termination under restricted conditions. The commenter
emphasized two provisions of 10 CFR 50.82(a)(3) that should be
considered in developing a response to the petitioner's request: (1)
The regulation permits the extension of the decommissioning period
beyond 60 years only when necessary to protect public health and
safety, and (2) the Commission will consider the unavailability of
waste disposal capacity in its evaluation of the licensee's ability to
carry out decommissioning. The commenter disagreed that the existing
regulations jeopardize public health and safety. The commenter stated
that the NRC does not have the authority to require the U.S. Department
of Energy (DOE) or the U.S. Department of Defense (DOD) to store used
nuclear fuel or other high-level radioactive wastes at sites under the
jurisdiction of those agencies.
NRC Response
The NRC agrees with the commenter that requests for enforcement
should not be addressed using the petition for rulemaking process.
In the context of a petition for rulemaking, the NRC concluded that
the petitioner requests a change in the regulations to limit the use of
SAFSTOR and eliminate the use of ENTOMB. The NRC agrees that its
existing regulations and guidance allow for license termination under
restricted use conditions; allow decommissioning time periods beyond 60
years when necessary to protect public health and safety; consider the
availability of waste disposal capacity on a licensee's ability to
carry out decommissioning; and do not jeopardize public health and
safety. The bases for these determinations are described in a number of
NRC rulemaking FRNs, for example, in its 1988 rulemaking (53 FR 24018;
June 27, 1988). The NRC agrees that it does not have the authority to
require the DOE or the DOD to store spent nuclear fuel or high-level
waste at sites under the jurisdiction of those agencies, on
[[Page 76325]]
grounds that Congress has not delegated such authority to the NRC.
V. Reason for Denial
The NRC has determined that the petitioner has not provided an
adequate basis upon which the NRC could act to amend its regulations as
requested by the petitioner.
With respect to the petitioner's request for annual instead of
biennial reporting of the decommissioning trust fund status, the
Commission published a final rule in September 1998, ``Financial
Assurance Requirements for Decommissioning Nuclear Power Reactors'' (63
FR 50465; September 22, 1998). In its 1998 rulemaking, the NRC
established the 2-year frequency for the decommissioning fund status
report after considering a range of frequencies from 1 to 5 years. The
2-year frequency was based on the following:
Given NRC's information needs, and the multi-million-dollar size
of the contributions that utilities make annually to their
decommissioning funds, the potential pay-off per hour of staff labor
that NRC invests in monitoring funds is likely to be significant (63
FR 50465, 50476).
Since the issuance of the 1998 rule, the 2-year reporting frequency
has continued to be adequate for routine monitoring of the status of
decommissioning financial assurance. In cases where a licensee reports
a shortfall, the NRC can exercise increased oversight to monitor the
licensee's progress in resolving the shortfall under the provisions of
10 CFR 50.75(e)(2). The oversight may require fund status information
more frequently than annually, and the NRC adjusts its monitoring
accordingly. For example, due to the market decline in 2008, the NRC
issued numerous requests for additional information to monitor reactor
facilities with shortfalls. The 1998 rule also addressed the request to
increase the frequency of reporting from 1 year to every six months for
reactors within 5 years of the expected end of operations. The 1-year
frequency for reactors nearing the end of operations was endorsed by a
majority of the commenter's on the 1998 rule. However, as with the 2-
year reports, the NRC can increase the frequency of monitoring as
needed to assure that the reactor facility has adequate financial
assurance. The NRC's ability to adjust the frequency of monitoring
enables the agency to obtain adequate information for cases where the
licensee has a shortfall, but avoids imposing an unnecessary reporting
burden on licensees that meet the funding assurance requirements. The
NRC denies the petition to increase the reporting frequency for all
reactors in response to the fact that some reactors have reported
shortfalls because the existing regulatory framework already provides
the NRC adequate flexibility to address oversight and reporting
frequency for facilities with shortfalls.
The petitioner requests the NRC amend its rules to require the host
State of a reactor facility to control, manage, and report the status
of the licensee's decommissioning trust fund. However, the NRC does not
have authority to require a State to become a trustee nor does the NRC
view it as appropriate to impose trustee status on a non-licensee. In
addition, the NRC's regulations at 10 CFR 50.75(e) do not preclude such
an arrangement. The NRC denies the request to require the host State to
become a trustee of licensee's decommissioning funds.
With respect to the request that the decommissioning funds should
not be held by the licensee, the NRC agrees with the petitioner.
However, current NRC regulations already specify that the licensee
cannot hold decommissioning trust funds. The provisions in Sec.
50.75(e)(1)(i) and (ii) for the prepayment and the external sinking
fund methods require the funds to be held in an account segregated from
licensee assets and outside the administrative control of the licensee
and its subsidiaries or affiliates. Therefore, no amendment is
necessary to achieve the goal of prohibiting the licensee from holding
the funds itself.
The petitioner requests the NRC to amend its regulations to require
a licensee to deposit funds into the licensee's decommissioning trust
fund within 90 days of reporting a shortfall as the exclusive remedy
for a shortfall. The petitioner states the amendment is needed to
provide reasonable assurance that funds will be available when needed
and to avoid legacy sites that must be cleaned up at taxpayer expense.
In its Staff Requirements Memorandum on SECY-10-0084, ``Explanation of
Changes to Revision 2 to Regulatory Guide 1.159, `Assuring the
Availability of Funds for Decommissioning Nuclear Reactors' '', dated
October 25, 2010 (ADAMS Accession No. ML102980565), the Commission
disapproved a proposed change that would have directed merchant
licensees to adjust decommissioning funds annually and within 3 months
of the annual recalculation of the regulatory minimum required by 10
CFR 50.75(b). The Commission stated that the guidance should retain the
current directive that merchant licensees adjust their funding amounts
at least once every two years, in conjunction with the biennial report,
and interpreted that to mean that shortfalls reported in a biennial
report must be corrected by the time the next biennial report is due
two years later. The Commission also approved affording rate-regulated
licensees 5 years to adjust the funding amounts.
Furthermore, the NRC has determined that several methods of
providing financial assurance exist that can afford an adequate level
of assurance that funds for decommissioning will be available when
needed. The reason for providing several methods was to provide
flexibility to permit licensees to select the method best suited to
their needs. Specifically, the NRC has concluded that eliminating the
flexibility of using all the currently existing methods of financial
assurance would impose a burden on licensees without providing an
increase in safety.
Based on the previously provided rationale, the NRC denies the
request.
The petitioner requests that the NRC amend its regulations to
require the SAFSTOR option to be limited such that decommissioning is
completed within 60 years. The basis of the request is that the NRC
promised the host community that the site would be decommissioned and
returned to unrestricted use within 60 years and to avoid legacy sites
with high level waste disposal and long-term storage facilities.
However, the 60-year period was never intended to be an absolute limit,
and the rule language has never stated it as an absolute limit. When
the NRC issued its final rule, ``General Requirements for
Decommissioning Nuclear Facilities'' (53 FR 24018; June 27, 1988), the
NRC stated:
The rule does not contain a specific limitation on the length of
time for SAFSTOR beyond the time period indicated in the modified
rule. The case-by-case considerations, such as shortage of
radioactive waste disposal space offsite or presence of an adjacent
reactor whose safety might be affected by dismantlement procedures,
or other similar site specific considerations, mean that the
appropriate delay for a specific facility must be based on factors
unique to that facility and could result in extension of completion
of decommissioning beyond 60 years. Based on this, the NRC considers
the setting of an absolute time limit on SAFSTOR to be impractical
and unnecessary. * * * [T]he rule contains requirements that a
licensee must submit an alternative for decommissioning to the NRC
for approval and that consideration will be given to an alternative
which provides for completion of decommissioning beyond 60 years
only when necessary to protect health and safety. (53 FR 24018,
24023).
In view of the NRC's conclusion that the setting of an absolute
time limit on SAFSTOR would be impractical and
[[Page 76326]]
unnecessary, the NRC disagrees that a formal commitment was made that a
reactor facility would be required to complete decommissioning within
60 years. The NRC denies the request to impose an absolute 60-year time
limit for decommissioning.
The petitioner requests the NRC to amend its regulations to require
that the SAFSTOR option may be used only if the license will be
terminated based on meeting unrestricted use criteria. The bases of the
request are the petitioner's beliefs that the NRC promised the host
community that a site would be decommissioned and returned to
unrestricted use within 60 years and to avoid legacy sites with high-
level waste disposal and long-term storage facilities. When the 1988
Decommissioning Rule was issued, the definition of decommissioning was
to remove (as a facility) safely from service and reduce residual
radioactivity to a level that permits release of the property for
unrestricted use and termination of the license. (53 FR 24049; June 27,
1988). However, in July 1997 the NRC amended the definition of
decommissioning to allow license termination under restricted
conditions. (62 FR 39058; July 21, 1997). The NRC explained its
reasoning with this statement:
Restricted use has been retained in the final rule. Based on its
analyses in the Final GEIS and its experiences with actual
decommissioned sites, the Commission recognizes that, although
unrestricted use is generally preferred, restricted use (when
properly designed in accordance with the rule's provisions discussed
in Section IV.B.3) can provide a cost-effective alternative to
unrestricted use for some facilities and maintain the dose to the
average member of the pertinent critical group at the same level.
Thus, the Commission has replaced the prohibitively expensive
provision for justifying restricted use with a reasonable cost
provision. (62 FR 39058, 39072).
The amended definition of decommissioning in 10 CFR 50.2 was
subject to a notice-and-comment rulemaking, and the Commission
considered stakeholder comments before issuing the final rule. The
petitioner did not raise any new issues that would cause the NRC to
reconsider the conclusions reached in the 1997 rulemaking process. On
that basis, the NRC denies the request to re-impose a requirement for a
reactor facility to decontaminate its facility to meet unrestricted use
criteria in all cases.
The petitioner requests the NRC to amend its regulations to
prohibit a licensee from using a SAFSTOR facility for any activities
related to other reactors onsite. Similar to the petitioner's other
requests, the bases for this request are the petitioner's beliefs that
the NRC promised the host community that a site would be decommissioned
and returned to unrestricted use within 60 years to avoid legacy sites
with high-level waste disposal and long-term storage facilities. The
Commission notes that it is possible that the completion of
decommissioning a facility in SAFSTOR could be delayed past the 60-year
mark if the facility is used for activities related to an operating
unit on the site. The need to use equipment shared by a shutdown unit
and an operating unit could prevent completing the decommissioning of
the shutdown unit until the operating unit was permanently shut down.
However, the discussion of SAFSTOR in the Statement of Considerations
demonstrated that the NRC's regulations allow the licensee to exceed
the 60-year limit in cases where a shutdown unit is located on the same
site as an operating unit, subject to NRC approval. In a case where the
SAFSTOR facility shares equipment with an operating unit, the NRC would
consider the risk of conducting decommissioning activities near an
operating unit. That type of evaluation would necessarily depend on
site-specific factors that are not well suited to codification in a
rule.
The Commission shares the petitioner's concerns regarding legacy
sites. To prevent the occurrence of legacy sites at reactor facilities,
10 CFR 50.75(f)(3) requires the licensee to submit a preliminary
decommissioning cost estimate that includes an up-to-date assessment of
the major factors that could affect the cost of decommissioning. The
provisions of 10 CFR 50.54(bb) require the licensee to provide a plan
for the management of spent fuel. In addition, the Commission recently
issued a rule which requires licensees to minimize contamination;
requires that licensees survey outside for radiological hazards,
including the subsurface soil and groundwater; and revises the
financial assurance regulations (76 FR 35512; June 17, 2011). These
requirements work together before the end of operations to assure that
the licensee has the financial ability to safely decommission the site
and to manage the spent fuel. These requirements assure that a facility
will not become a legacy site, even if a facility in SAFSTOR continues
to share equipment with an operating unit onsite. The NRC denies the
request to forbid the use of a facility in SAFSTOR for any activities
related to another unit onsite.
The petitioner requests the NRC to forbid the licensee from placing
additional waste streams on the SAFSTOR site that belong to other
licensees, even if one company owns multiple licenses for multiple
reactors on a singular piece of land. As noted, the 60-year timeline
for decommissioning is not an absolute limit, and, considered alone,
would not provide the basis for forbidding placement of waste streams
from other onsite reactors in the SAFSTOR facility. Also, as noted, the
legacy site issue depends on whether the licensee has the financial
resources to complete decommissioning. The NRC addresses this issue
through its financial assurance requirements. A licensee is required in
10 CFR 50.75 to provide assurance that at any time during the life of
the facility, through termination of the license, adequate funds will
be available to complete decommissioning. (61 FR 39278; July 29, 1996).
As noted in the Statement of Considerations, when a licensee has a
shortfall in financial assurance, the NRC increases its oversight
activities until the matter is resolved. The NRC's regulations in 10
CFR Part 20, ``Standards for Protection Against Radiation,'' provide
general requirements for ensuring that radioactive waste is stored
safely. With respect to high level waste and spent fuel, the Commission
recently updated its Waste Confidence Decision with the following
statement: ``The Commission finds reasonable assurance that sufficient
mined geologic repository capacity will be available to dispose of the
commercial high-level radioactive waste and spent fuel generated in any
reactor when necessary.'' (75 FR 81037, 81067; December 23, 2010). The
requirements of 10 CFR 50.54(bb) require the licensee to provide a plan
for managing spent fuel until it is transferred to the Secretary of
Energy for final disposal. The Waste Confidence Decision combined with
the ongoing requirement to provide adequate financial assurance for
decommissioning, and to maintain a spent fuel management plan, indicate
that a facility in SAFSTOR will not become a legacy site in the event
some waste from another reactor on the site is placed in the SAFSTOR
facility. The NRC denies this request.
The petitioner requests the NRC to amend its regulations to
eliminate the use of ENTOMB as a decommissioning option. However, in
its 1988 Decommissioning Rule, the NRC provided the following
explanation for retaining the ENTOMB option for decommissioning:
[[Page 76327]]
It is the Commission's belief that the ENTOMB alternative for
decommissioning should not be specifically precluded in the rule
because there may be instances in which it would be an allowable
alternative in protecting public health and safety and common
defense and security. By not prohibiting ENTOMB, the rule is more
flexible in enabling NRC to deal with these instances. These
instances might include smaller reactor facilities, reactors which
do not run to the end of their lifetimes, or other situations where
long-lived isotopes do not build up to significant levels or where
there are other site specific factors affecting the safe
decommissioning of the facility, as for example, presence of other
nuclear facilities at the site for extended periods. In addition
there is potential for variations on the ENTOMB option where, for
example, some decontamination has already been performed, thereby
making the ENTOMB option more viable. * * * [C]oncerns were
expressed by the commenter's that the ENTOMB option would cause
environmental damage due to the presence of long-lived radionuclides
which would be radioactive beyond the life of any concrete
structure, that it is inconsistent with the definition of
decommissioning requiring unrestricted release, and that some
reactors are located in highly populous areas. In addition, the
Supplementary Information to the proposed rule indicated, in
general, that there may be difficulties with the use of ENTOMB, in
particular in demonstrating that the radioactivity in the entombed
structure had decayed to levels permitting unrestricted release of
the property in a period on the order of 100 years. In response, the
rule contains requirements that a licensee must submit an
alternative for decommissioning to the NRC for approval and that
consideration will be given to an alternative which provides for
completion of decommissioning beyond 60 years only when necessary to
protect health and safety. This provides the Commission with both
sufficient leverage and flexibility to ensure that if the ENTOMB
option is chosen by the licensee it will only be used in situations
where it is reasonable and consistent with the definition of
decommissioning which requires that decommissioning lead to
unrestricted release. As indicated above, analysis of ENTOMB
indicates that it can be carried out safely and with minimal
environmental effect for the time periods presented in this
Supplementary Information and in the guidance under preparation.
However, based on the difficulties with ENTOMB described in the
Supplementary Information to the proposed rule and by the
commenter's, use of ENTOMB by a licensee would be carefully
evaluated by NRC according to the requirements of the rule before
its use is permitted. (53 FR 24018, 24023-24; June 27, 1988).
The decision to retain the ENTOMB option was subject to a notice-
and-comment rulemaking. The petitioner has not raised any new or
significant points that would cause the Commission to reconsider the
conclusions reached in the 1988 rulemaking. On the bases noted, the NRC
denies the request to eliminate the use of ENTOMB as an option for
decommissioning a nuclear facility.
For these reasons, the NRC denies the petitioner's requests for the
NRC to modify its requirements for reporting the status of licensee's
decommissioning trust funds, to have host States manage these trust
funds, to require a deposit into the trust fund within 90 days as the
exclusive remedy for a shortfall, to amend the definition of the
SAFSTOR decommissioning option in its regulations, and to eliminate the
ENTOMB option.
Dated at Rockville, Maryland, this 1st day of December 2011.
For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2011-31365 Filed 12-6-11; 8:45 am]
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