[Federal Register Volume 73, Number 203 (Monday, October 20, 2008)]
[Proposed Rules]
[Pages 62220-62224]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-24897]
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NUCLEAR REGULATORY COMMISSION
10 CFR Part 50
[Docket No. PRM-50-88; NRC-2007-0017]
Thomas E. Magette on Behalf of EnergySolutions, LLC; Notice of
Denial of Petition for Rulemaking
AGENCY: Nuclear Regulatory Commission.
ACTION: Petition for rulemaking; Denial.
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SUMMARY: The Nuclear Regulatory Commission (NRC) is denying a petition
for rulemaking submitted by Mr. Thomas E. Magette on behalf of
EnergySolutions, LLC. The petitioner requested that the NRC's
regulations governing domestic licensing of production and utilization
facilities be amended to provide a regulatory framework that would
allow funds from licensees' decommissioning trust funds to be used for
the cost of disposal of ``major radioactive components'' (MRCs) that
have been removed from reactors before the permanent cessation of
operations.
DATES: The docket for the petition for rulemaking, PRM-50-88, is closed
on October 20, 2008.
ADDRESSES: You can access publicly available documents related to this
petition for rulemaking using the following methods:
Federal e-Rulemaking Portal: Further NRC action on the issues
raised by this petition will be accessible at the Federal rulemaking
portal, http://www.regulations.gov, by searching on rulemaking docket
ID: NRC-2007-0017. Address questions about NRC dockets to Carol
Gallagher 301-415-5905; e-mail [email protected]. The NRC also
tracks all rulemaking actions in the ``NRC Regulatory Agenda:
Semiannual Report (NUREG-0936).''
NRC's Public Document Room (PDR): The public may examine, and have
copied for a fee, publicly available documents at the NRC's PDR, Public
File Area O-1 F21, One White Flint North, 11555 Rockville Pike,
Rockville, Maryland.
NRC's Agencywide Document Access and Management System (ADAMS):
Publicly available documents created or received at the NRC are
available electronically at the NRC's Electronic Reading Room 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 any
problems in accessing the documents located in ADAMS, contact the NRC
PDR reference staff at 1-800-387-4209 or 301-415-4737, or by e-mail to
[email protected].
FOR FURTHER INFORMATION CONTACT: Harry S. Tovmassian, Office of Nuclear
Reactor Regulation, NRC, Washington, DC 20555-0001, telephone 301-415-
3092, e-mail [email protected], or Steven R. Hom, Office of
Nuclear Reactor Regulation, NRC, Washington, DC 20555-0001, telephone
301-415-1537, e-mail [email protected].
SUPPLEMENTARY INFORMATION:
The Petition
On May 29, 2007, the NRC received a petition for rulemaking filed
by Mr. Thomas E. Magette on behalf of EnergySolutions, LLC. The
petitioner requested that the NRC amend its regulations to provide a
regulatory framework that would allow funds from licensees'
decommissioning trust funds to be used for the cost of disposal of MRCs
that have been removed from reactors before the permanent cessation of
operations. On August 21, 2007 [72 FR 46569], the NRC published a
notice of receipt of the petition for rulemaking
[[Page 62221]]
and requested public comment. The petitioner stated that this
rulemaking is needed because current regulations define decommissioning
in 10 CFR 50.2 as not beginning until the site or facility ceases
operation, and 10 CFR 50.82(a)(8) only allows withdrawals from
decommissioning trust funds for decommissioning expenses. The
petitioner asserted that he believes that such a regulatory framework
is in the public interest.
Background
On February 3, 1994 [59 FR 5216], the NRC published in the Federal
Register a draft policy statement containing, among other things,
criteria the NRC proposed to follow to respond to requests by licensees
with permanently shut down plants to withdraw decommissioning trust
funds before approval of a decommissioning plan submitted under 10 CFR
50.82. On July 20, 1995 [60 FR 37374], the NRC published proposed
amendments to the regulations that address decommissioning and license
termination, incorporating the criteria from the draft policy
statement. The NRC addressed comments that were received on the draft
policy statement and proposed rules in the statement of considerations
for the final rule [61 FR 39293; July 29, 1996]. One of the comments
(by the Nuclear Energy Institute, joined by two licensees) was that the
NRC should develop a policy for operating plants on withdrawing
decommissioning funds, and ``should allow licensees to withdraw
decommissioning trust funds to dispose of structures and equipment no
longer being used for operating plants.'' The NRC responded as follows:
``The NRC has concluded that allowing decommissioning trust fund
withdrawals for disposals by nuclear power plants that continue to
operate is not warranted. These activities are more appropriately
considered operating activities and should be financed in that way.''
On May 30, 2001 [66 FR 29244], the NRC published proposed
amendments to 10 CFR 50.75 relating to increased oversight by the NRC
of decommissioning trusts before decommissioning. One of the proposed
changes to the rule required that trust agreements must contain a
provision that disbursements from a trust are restricted to ordinary
administrative expenses, decommissioning expenses, or transfer to
another decommissioning funding assurance method until final
decommissioning has been completed. Because these changes would not
meet the definition of decommissioning in 10 CFR 50.2, under this
provision disbursements from a trust could not be used before the start
of decommissioning to dispose of large components that had been
replaced at an operating plant. The amendments to the regulation became
final at the end of 2002.
Discussion
The EnergySolutions petition raises the following issue: Should the
NRC undertake a rulemaking that is inconsistent with current Commission
policies and regulations on the use of decommissioning trust funds
before decommissioning?
When the NRC articulated its policy against the use of
decommissioning trust funds for the disposal of MRCs during operations,
it did not suggest that MRCs should not, or could not be disposed of
during operations using other sources of funding. In fact, the NRC
considered this possibility, and stated that these disposals are
considered operating activities and should be financed as such.
The EnergySolutions petition claims that a change in the NRC's
policy and regulations would yield the following benefits: (1) The
radioactive source term associated with the contaminated components at
reactor sites will be reduced; (2) Site workers will be exposed to less
radiation; (3) Costs to store the MRCs and to provide protection to
workers can be avoided; (4) The overall costs to decommission will be
reduced (because the disposal of at least some MRCs will have already
been completed); and (5) More funds will be available to decommission
upon permanent cessation of operations.
While the first four benefits asserted by the petitioner may result
from the disposal of MRCs, these benefits do not depend upon the origin
of the funds used to pay for such disposal (and the petition makes no
such assertion). In other words, the same benefits could be achieved if
licensees disposed of MRCs using operating revenues, special public
utility commission collections from ratepayers, or any other sources of
funds other than decommissioning trust funds. The petition does not
contain evidence that a reversal of NRC policy and regulations,
designed to protect decommissioning trust funds so that they will be
available to complete decommissioning, would ensure that all MRCs will
in fact be immediately disposed of offsite by all plants, thus
eliminating the petition's stated concerns. On the contrary, a reversal
could be expected to increase the likelihood that a shortage of
decommissioning funds may occur at the time of license expiration, or
if a plant unexpectedly shuts down early and generates no further
operating revenues.
With regard to the fifth asserted benefit, the petitioner
essentially argues that more funds would be available to decommission
the reactor upon permanent shutdown because investment returns on a
trust fund will be less than the inflation of disposal costs; thus,
licensees should spend funds now. This argument conflicts with the
basis of the NRC's regulations at 10 CFR 50.75 that permit licensees to
assume a 2 percent real rate of return earnings credit on
decommissioning trust fund balances, which about 75 percent of plants
use to meet minimum decommissioning funding assurance requirements.
Allowing licensees to assume a 2 percent real rate of return presumes
that over time, trust fund earnings after taxes will exceed the
inflation of decommissioning costs, which include disposal costs, by a
net 2 percent. To accept the petition's argument would require the NRC
to accept the argument's premise that investment returns would not keep
up with inflation. If this were the case, the NRC would need to rescind
or at least scale back the regulatory earnings credit (lacking the
original basis), for which there is no basis at this time.
The petitioner raised several other observations in support of the
proposed rulemaking. First, the petition states that a ``blanket
prohibition on the use of decommissioning trust funds to dispose of
[MRCs] is unnecessary to achieve the underlying purpose of the rule.''
The NRC has never issued a blanket prohibition against seeking an
exemption from the provisions of 10 CFR 50.75 or 50.82. However, the
NRC views decommissioning funding assurance policies and rules as of
the utmost importance in ensuring that there will be sufficient funds
to decommission a reactor upon permanent cessation of operations.
Accordingly, the NRC expects that there would have to be extraordinary
circumstances before any exemption request to withdraw funds early
would be granted, particularly if there is no demonstration that there
are no other sources of funds available to licensees to dispose of MRCs
while a plant is operating.
Second, the petitioner states that granting the petition would
avoid a conflict with the NRC's ``philosophy'' underlying other rules
governing materials sites to remove source terms from unused portions
of operating materials sites. Thus, the NRC should not ``create
economic barriers'' to
[[Page 62222]]
prevent reactor licensees from disposing of MRCs during operations.
While the petition's assertion that ``experience with non-reactor
decommissioning sites indicates that clean-up costs can escalate
significantly when unmanaged contamination is left on-site for long
periods of time'' may be valid, the petition deals with reactor sites
and MRCs that are of a different nature than many materials that may be
able to migrate into the ground if ``unmanaged.'' The petition
acknowledges that current Commission regulations and policy allow the
SAFSTOR option for reactors (i.e., the facility is maintained and
monitored to allow decay of radioactivity, after which it is
decommissioned), and that ``reactor licensees are not subject to'' the
same rules governing materials licensees. Thus, any ``conflict'' with a
so-called philosophy that may apply to a different category of
licensees because they have characteristics distinguishable from
reactor licensees warrants limited consideration here, particularly
when licensees are free to use non-decommissioning trust funds to
dispose of MRCs.
Third, the petitioner states that the proposed amendment to 10 CFR
50.82 does not depend on the adequacy of the minimum formula amount
calculated under 10 CFR 50.75. The petition states that the NRC's
Inspector General and the Government Accountability Office have raised
questions concerning the sufficiency of formula decommissioning cost
estimates and funding assurance based on them. These questions,
according to the petition, should not affect consideration of the
proposed amendment because the proposal would require site-specific,
rather than formula, cost estimates for the staff's analysis of a
withdrawal request. However, even site-specific estimates become
inherently more unreliable the further they are done from permanent
shutdown. (The earliest a licensee must perform any type of site-
specific decommissioning cost estimate under current NRC regulations is
five years from permanent shutdown.) Therefore, cost estimate
reliability issues are not rendered moot simply because the proposal
would require an analysis based on a site-specific cost estimate versus
a formula cost estimate.
Fourth, the petition states that granting the petition would
prevent unnecessary regulatory burdens. The petition blames the current
policy restricting the use of decommissioning trust funds for causing
some licensees to spend funds to build storage structures to house
MRCs, maintain them, and monitor releases. Also, these structures
purportedly take up limited space. The petition notes that ``in many
cases licensees commingle'' radiological decommissioning funds with
other funds, and states that preventing the use of the funds ``solely
because they are commingled creates an unnecessary regulatory burden as
it does not have a corresponding safety benefit if the licensee has
sufficient funds in its decommissioning trust funds to meet the
provisions of'' 10 CFR 50.82(a)(8)(i)(B) and (C). As discussed earlier,
determining whether a licensee has sufficient funds to meet those
provisions of 10 CFR 50.82, which are proposed by the petition to be
the criteria to judge whether decommissioning funds should be released,
becomes much more speculative the further from permanent shutdown a
plant is. Whatever test might be used to gauge whether disbursements
from a decommissioning trust should be allowed, the issue would not be
before the NRC if licensees who desired to withdraw funds for MRC
disposal had sub-accounts or established specific accounting that
certain funds were earmarked for such purpose and were not relied upon
to meet decommissioning funding assurance regulations. In connection
with the 2002 final rule amending 10 CFR 50.75 regarding
decommissioning trust provisions (which, among other things, confirmed
the limitations on the use of decommissioning trust funds), the
Commission stated that commingling of trust funds is not objectionable
``as long as the licensees are able to provide a separate accounting
showing the amount of funds earmarked'' for other uses not subsumed
under the NRC's definition of decommissioning, [See 67 FR 78339;
December 24, 2002]. The notion of licensees establishing sub-accounts
``that clearly delineate the purpose of the sub-account'' was discussed
as early as 1996 in an advance notice of proposed rulemaking [See 61 FR
15427, footnote 2; April 8, 1996]. If minimum required amounts are
maintained for radiological decommissioning, sub-accounts for other
activities are not prohibited by the NRC, [See 61 FR 39285; July 29,
1996]. Thus, licensees have had full notice that sub-accounts for the
disposal of MRCs during operations could be established as long as
decommissioning funding assurance requirements are met. In view of the
foregoing, the NRC believes that licensees have had alternatives to
address funding the disposal of MRCs during operations, and that the
argument that current policy poses ``unnecessary regulatory burdens''
is not compelling.
Notwithstanding the arguments contained in the petition, the NRC
believes that existing policy and rules continue to be sound. However,
the NRC takes this opportunity to note that it has been and will
continue to entertain very limited exceptions, as appropriate. Under 10
CFR 50.12, a licensee can request an exemption from 10 CFR 50.82(a)(8)
to use decommissioning trust funds to dispose of MRCs before
decommissioning, which the NRC will review on a case-by-case basis in
extraordinary circumstances.
The NRC believes there would be no practical difference between the
showings necessary under an exemption request and those showings that
would be necessary under the petition's proposed rule. Exemptions are
decided on a case-by-case basis. Under the rule proposed by the
petition, the NRC would also have to make decisions whether to approve
withdrawals on a case-by-case basis. In both situations, the NRC would
have to factor in, among other things, site specific costs, individual
trust balances and the prospect of future contributions, market and
cost fluctuations, years left to operate, and any other considerations
that might bear on the likelihood of a licensee being able to make up
shortfalls in assured decommissioning funds, such as operational issues
that could affect anticipated revenues. Because the NRC does not
believe there would be significant processing distinctions between the
existing exemption regime and the petition's, there is no processing
advantage weighing in favor of the rulemaking proposed by the petition.
Public Comments
The notice of receipt of the petition for rulemaking invited
interested persons to submit their comments. Six public comments were
filed in response to the petition within the public comment period.
Licensees submitted four comments, the Nuclear Energy Institute
submitted one comment, and Talisman International, LLC, which employs
one or more individuals who represent EnergySolutions, submitted one
comment. All of the comments were supportive of the petition. On June
20, 2008, a seventh public comment was received from Mr. Barry T.
Smitherman, Chairman, Public Utility Commission of Texas, commenting on
his own behalf. Although this comment was received after the close of
the public comment period, the NRC reviewed the letter and finds that
it raises no issues that have not been previously considered by the
[[Page 62223]]
Commission and that no further resolution is called for.
1. Comment: One commenter stated that the proposed rule change
would provide ``reactor licensees the needed flexibility'' to use
decommissioning trust funds to dispose of MRCs. Another commenter
stated that the needed flexibility would provide a framework ``that
would allow the NRC on a case-by-case basis to authorize the use of
[decommissioning trust funds] for the disposal of MRCs prior to the
cessation of reactor operations * * *.''
NRC Response: The NRC already has a framework in place at 10 CFR
50.12 to permit, on a case-by-case basis, some limited flexibility
regarding the use of decommissioning trust funds to dispose of MRCs
during operations.
2. Comment: A commenter opined that the current rule [10 CFR 50.82]
poses an unreasonable burden not accompanied by any benefit. The
financial burden to construct and maintain storage facilities to house
MRCs until the cessation of operations could be avoided according to a
commenter.
NRC Response: There is a significant benefit to restricting the use
of decommissioning trust funds for MRC disposals, namely to ensure that
there are enough funds to decommission a reactor shut down permanently
either at the end of its licensed life or any time before that date for
reasons unforeseen today. Furthermore, there are sources of funds other
than decommissioning trust funds to dispose of MRCs. Any burdens from
constructing and maintaining storage facilities can be avoided at the
licensee's option by using operating funds to dispose of MRCs, or for
regulated licensees by using assessments properly accounted for from
rate regulators who approve the use of ratepayer funds to dispose of
MRCs.
3. Comment: One commenter stated that granting the petitioner's
proposal would facilitate the disposal of MRCs.
NRC Response: Nothing in the NRC's regulations prohibits licensees
from disposing of MRC's before the cessation of operations using non-
decommissioning funds. These non-decommissioning funds would facilitate
the disposal of MRCs similar to the use of decommissioning trust funds,
but without creating the additional risk that reduced decommissioning
trust funds will be insufficient.
4. Comment: One commenter stated that the removal of MRCs before
decommissioning is cost-effective, delaying the use of decommissioning
funds or delaying disposal could result in higher costs and less funds
available at decommissioning.
NRC Response: As discussed before, the NRC's rules are based on an
assumption that investment earnings from decommissioning trust funds
left intact will surpass the inflation of decommissioning costs in the
long run. Licensees may use other funds to dispose of MRCs if they
believe current disposal costs warrant and there will be insufficient
decommissioning funds available at decommissioning.
5. Comment: One commenter stated that one of the reasons that
disposing of these components is in the interest of his ``Company, its
customers, and the public'' is that the source term for the site would
be reduced.
NRC Response: Any reduction in the source term due to the removal
of MRC's would not depend upon the origin of the funds used to
accomplish the removal. This argument does not support the petition's
proposal for NRC to amend its regulations.
6. Comment: One commenter stated that licensees take all measures
necessary to protect public health and safety and the environment and
will continue to do so, notwithstanding leaving MRCs onsite.
NRC Response: This comment was made in response to the petition's
assertion that leaving MRCs onsite ``can give rise to adverse
environmental impacts if not properly managed.'' The NRC has not found
that storing MRCs onsite creates a health and safety issue that can
only be resolved by the immediate removal of MRCs. If it does create a
health and safety issue, the Commission will address this issue
directly, rather than by reversing financial policy that may or may not
result in the actual disposal of MRCs.
7. Comment: Some commenters cited the burden placed on licensees to
develop and submit exemption requests, and on the NRC staff to process
them as problematic. They believe that the proposal provides a
standardized approach which presumably would be less burdensome.
NRC Response: The NRC would not anticipate any reduction in burden
on licensees or the staff under the petitioner's proposal. Any request
to withdraw funds, whether under 10 CFR 50.12 or 10 CFR 50.82 as
proposed to be amended, would have to be submitted and decided on a
case-by-case basis and would not be susceptible to generic processing.
8. Comment: A commenter stated that the petition, if granted, would
provide an opportunity to obtain rate regulator views.
NRC Response: The requirement that licensees provide copies of
withdrawal requests to rate regulators would be of value if these
regulators actually provided their views, particularly because they,
and not the NRC, are principally responsible for economic matters
affecting licensees.
9. Comment: A commenter stated that current regulations do not
consider that MRCs would need to be replaced during operations and do
not address the significant burden on licensees to store MRCs until
decommissioning.
NRC Response: The 1996 statement of considerations [61 FR 39293;
July 29, 1996], discussing a comment that the NRC ``should allow
licensees to withdraw decommissioning trust funds to dispose of
structures and equipment no longer being used for operating plants,''
cited by the petition itself, clearly demonstrates that the Commission
was aware that some MRCs would need to be replaced during operations.
Whether current regulations address the purported ``significant burden
on licensees to store MRCs'' is of no bearing, because regulations do
not require such storage, and licensees have never asserted that they
are financially incapable of disposing of MRCs during operations
without withdrawing decommissioning trust funds.
10. Comment: One commenter stated that licensees with at least 20
years remaining on their licenses should be able to use decommissioning
trust funds for the disposal of MRCs before decommissioning (without
specific NRC approval) upon providing notice to the NRC with a copy to
the rate regulator and providing an estimate of the costs for the
disposal. The commenter asserted that there will be ample time to
accumulate funds and early disposal will allow more funds to be
available in the future.
NRC Response: This ``comment'' is actually a proposal that goes
beyond the proposal made by the petition. The key feature is that no
NRC approval would be required. A major necessary assumption underlying
the comment is that any plant with at least 20 years left to operate
would continue to do so notwithstanding the possibility of a crippling
accident or adverse economic conditions, and continue to be able to
accumulate funds. This comment is outside the scope of the petition's
proposal, and therefore is accorded no further consideration.
Reason for Denial
The NRC concludes that the arguments made by the petitioner and the
commenters are not sufficiently
[[Page 62224]]
persuasive to support the proposed rulemaking. The NRC's policy on not
using decommissioning trust funds for the early disposal of MRCs during
operations is prudent and necessary generically to preserve and protect
such funds. Other sources of funds can be used to dispose of MRCs
during operations. Furthermore, under 10 CFR 50.12, licensees may
request an exemption to permit withdrawal of decommissioning trust
funds to dispose of MRC's, which will be reviewed on a case-by-case
basis in extraordinary circumstances. Therefore, the Commission denies
PRM-50-88 filed by EnergySolutions.
For the Nuclear Regulatory Commission.
Dated at Rockville, Maryland, this 3rd day of October, 2008.
Bruce S. Mallett,
Acting Executive Director for Operations.
[FR Doc. E8-24897 Filed 10-17-08; 8:45 am]
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