[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
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 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.

-----------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

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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