[Federal Register Volume 64, Number 73 (Friday, April 16, 1999)]
[Proposed Rules]
[Pages 18833-18835]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-9536]


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NUCLEAR REGULATORY COMMISSION

10 CFR Parts 30, 40, and 70

[Docket No. PRM-30-61]


Nuclear Energy Institute; Denial of Petition for Rulemaking

AGENCY: Nuclear Regulatory Commission.

ACTION: Denial of petition for rulemaking.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is denying a 
petition for rulemaking (PRM-30-61) submitted by the Nuclear Energy 
Institute (NEI). The petitioner requested that the NRC amend its 
regulations governing timeliness of decommissioning of sites and 
separate buildings or outdoor areas. Because the petitioner has 
provided no new significant information that would call into question 
the basis for the requirements in these regulations, the NRC denies the 
petition. To achieve the intent of the petition, NRC will develop 
guidance to clarify specific criteria to review licensee requests for 
alternate schedules for initiation of decommissioning of inactive 
contaminated sites.

ADDRESSES: Copies of the PRM, the public comments received, and the 
NRC's letter to the petitioner are available for public inspection or 
copying in the NRC Public Document Room, 2120 L Street NW, (lower 
level), Washington, DC 20555-0001.

FOR FURTHER INFORMATION CONTACT: Anthony DiPalo, telephone (301) 415-
6191, e-mail, [email protected], of the Office of Nuclear Material Safety and 
Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-
0001.

SUPPLEMENTARY INFORMATION:

The Petition

    On August 21, 1996 (61 FR 43193), the NRC published a notice of 
receipt of a PRM filed by the NEI. The petitioner requested that NRC 
amend its regulations in 10 CFR Parts 30, 40, and 70 to provide for an 
alternative which could result in the delay of decommissioning of a 
site, separate building, or outdoor area where principal activities 
have not been conducted for at least 24 months, and the site, separate 
building, or outdoor area is unsuitable for unrestricted release in 
accordance with NRC requirements. Specifically, the petitioner 
requested that inactive facilities be allowed to go on ``standby'' 
status until economic conditions in its industry improved. The 
petitioner believes the requested changes are necessary because the 
rule, as written, has the potential to . . . ``eliminate important 
components from the nuclear industry infrastructure.'' The petitioner 
also asserted as a basis for its petition that NRC's regulations were 
not intended to give it jurisdiction over the commercial aspects of a 
licensee's activities and, therefore, NRC regulations should not impose 
restrictions on facilities or sites that have the potential to impact 
commercial decisions. Further, the petitioner believes that NRC's 
current regulation is not necessary given the cohesiveness and maturity 
of the industry today.

Public Comments on the Petition

    The notice of receipt of the PRM invited interested persons to 
submit comments. The comment period closed on November 4, 1996. NRC 
received comment letters from the following five organizations: (1) 
Kennecott Energy; (2) Siemens Power Corporation; (3) Wyoming Mining 
Association; (4) National Mining Association; and (5) Babcock & Wilcox, 
Naval Nuclear Fuel Division. All five commenters supported the PRM. 
They supported amending the Timeliness Rule to permit facilities to 
postpone decommissioning and enter a ``standby'' mode in which 
facilities would be monitored and maintained for a predetermined time 
period, pending future operation.

[[Page 18834]]

    The comments are summarized as follows:
    1. All five commenters argued that the Timeliness Rule, as 
currently written, impacts on a licensee's ability to make commercial 
decisions that allow it to compete in the open market. The commenters 
believe that any company that has a valid NRC license and operates 
within the conditions of the license should have the right to decide 
when to start and stop operations, and when to place buildings or 
facilities in standby mode, rather than being forced to begin 
decommissioning.
    2. Three commenters expressed the opinion that NRC's rationale 
requiring decommissioning after 24 months of inactivity is no longer 
practical, given the cohesiveness and maturity of today's nuclear 
industry. The commenters stated that NRC previously rejected a proposal 
for a standby mode because of the potential for site abandonment as a 
result of changes in a company's financial status, corporate takeover, 
or bankruptcy. The commenters believe that the nuclear industry has now 
matured and that poorly financed and poorly managed companies are no 
longer in business. The remaining companies are said to be stable and 
willing and able to assume the costs associated with keeping facilities 
in standby mode.
    3. Two commenters argued that the Timeliness Rule is regulation by 
exception. These commenters believe that it would be better to include 
generic provisions in the regulations for maintaining a licensed 
facility in standby mode, rather than approving individual requests for 
postponement of the initiation of decommissioning.
    4. One commenter argued the petitioner's case that the lack of a 
standby provision in the Timeliness Rule has the potential to eliminate 
important components from the nuclear industry. It is believed that 
these components and facilities may be needed in future years to 
support continuing operation and potential industry expansion. The 
commenter indicated that fuel cycle facilities operate in a constantly 
changing economic environment. Mines and mills that have been inactive 
for years are now beginning to start up because of improved economic 
conditions. The operating status of conversion facilities and 
enrichment plants has fluctuated in response to international policy 
and the influx of low-enriched products from countries of the former 
Soviet Union. Commercial facilities that support the armed forces must 
be prepared to respond if called on.

Reasons for Denial

    NRC is denying the petition for the following reasons:
    1. NRC believes the current language of the Timeliness Rule is 
sufficiently flexible to accommodate the petitioner's concerns because 
it currently contains provisions for granting licensees alternative 
time schedules for initiating decommissioning. NRC also believes that 
clarification of the specific acceptance criteria for granting 
alternative schedules could be achieved through the development of 
guidance.
    2. NRC believes that the amendments requested by the petitioner 
would conflict with the primary purpose of the Timeliness Rule to 
effectively and efficiently clean up contaminated sites that pose a 
potential threat to public health and safety. The Timeliness Rule was 
promulgated in July 1994 to address those situations where 
decommissioning of contaminated sites was unreasonably delayed. The 24-
month inactivity criterion related to decontamination of unused sites, 
separate buildings, or outdoor areas provides assurance that the 
licensee will undertake timely cleanup of inactive portions of its site 
while it is financially solvent.
    3. Although the petitioner argues that the nuclear industry has 
matured and recognizes its responsibilities, that troubled licensees 
are no longer in business, and that NRC regulations provide adequate 
decommissioning funding assurance and transfer of ownership 
requirements, the NRC's experience with inactive materials licensees 
indicates the need for the timeliness provisions. In fact, since the 
Timeliness Rule became effective in 1994, approximately 25 material 
licensees have filed for bankruptcy. Past history with NRC materials 
facility decommissioning indicates that the approach taken through the 
Timeliness Rule is the appropriate one.
    4. NRC believes that the petitioner is incorrect in asserting that 
the Timeliness Rule, as currently written, has the potential to 
eliminate important components from the nuclear industry 
infrastructure. For case-specific situations, delay of decommissioning 
is permitted by the current rule if the Commission determines that this 
relief would not be detrimental to the public health and safety and 
would otherwise be in the public interest. Licensees must describe why 
their request to delay decommissioning is in the public interest. 
Therefore, if the licensee can satisfactorily demonstrate that a 
proposed delay in decommissioning is not detrimental to public health 
and safety and is in the public interest, the delay would be granted 
and there should be no adverse impact on the nuclear industry 
infrastructure.
    Since the effective date of the Timeliness Rule, August 15, 1994, 
fewer than 30 licensees out of several thousand have asked to delay 
decommissioning activities and only three of these requests were 
initially denied. Each denial resulted from a lack of adequate 
justification. After discussions with the licensees, two of these three 
requests were withdrawn and one request was approved. Based on the 
relatively few requests received to date, the NRC concludes that the 
Timeliness Rule, as written, is not overly restrictive. Further, since 
NRC has not denied any request to delay decommissioning that was 
supported with adequate justification, it appears that the rule is not 
having an adverse impact on licensees' commercial decisions, as 
suggested by the petitioner.
    5. The Generic Environmental Impact Statement (GEIS), entitled 
``Final Generic Environmental Impact Statement on Decommissioning of 
Nuclear Facilities'' (NUREG-0586), prepared in connection with the 1988 
modifications to the decommissioning regulations recommended prompt 
dismantlement of material facilities once they had permanently ceased 
operation. The GEIS concluded that decommissioning can be accomplished 
safely and at a reasonable cost shortly after cessation of activities. 
Further, the GEIS concluded that immediate decommissioning following 
cessation of activities eliminates the potential problems that may 
result from an increasing number of contaminated sites, and the 
potential health, safety, regulatory, and economic problems associated 
with maintaining an inactive nuclear facility. The Timeliness Rule 
imposed certain ``action-forcing'' requirements to ensure that the 
recommendations in the GEIS were met.
    In conclusion, no new significant information has been provided by 
the petitioner that calls into question the basis for the requirements 
of the Timeliness Rule. The intent of the petition will be achieved by 
developing guidance on the specific criteria for reviewing licensee 
request submittals for alternate schedules for the initiation of 
decommissioning of inactive contaminated sites. Obviously, if the 
petitioner believes that the final guidance documents and their 
implementation do not adequately address the intent of the petition, 
the petitioner has the option of resubmitting

[[Page 18835]]

the petition. For the reasons cited in this document, NRC denies the 
petition.

    Dated at Rockville, Maryland, this 31st day of March, 1999.

    For the Nuclear Regulatory Commission.
Frank J. Miraglia,
Acting Executive Director for Operations.
[FR Doc. 99-9536 Filed 4-15-99; 8:45 am]
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