[Federal Register Volume 80, Number 98 (Thursday, May 21, 2015)]
[Notices]
[Pages 29348-29350]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-12377]


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NUCLEAR REGULATORY COMMISSION

[NRC-2014-0002]


Emergency Planning Exemption Requests for Decommissioning Nuclear 
Power Plants

AGENCY: Nuclear Regulatory Commission.

ACTION: Interim staff guidance; issuance.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is issuing 
Interim Staff Guidance (ISG) NSIR/DPR-ISG-02, ``Emergency Planning 
Exemption Requests for Decommissioning Nuclear Power Plants,'' May 11, 
2015. This document provides guidance for NRC staff to produce clear 
and consistent reviews of requests for exemptions and license 
amendments for defueled station emergency plans submitted by licensees 
after permanent cessation of operations.

ADDRESSES: Please refer to Docket ID NRC-2014-0002 when contacting the 
NRC about the availability of information regarding this document. You 
may obtain publicly-available information related to this document 
using any of the following methods:
     Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2014-0002. Address 
questions about NRC dockets to Carol Gallagher; telephone: 301-415-
3463; email: [email protected]. For technical questions, contact 
the individuals listed in the FOR FURTHER INFORMATION CONTACT section 
of this document.
     NRC's Agencywide Documents Access and Management System 
(ADAMS): You may obtain publicly available documents online in the 
ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select ``ADAMS Public Documents'' and 
then select ``Begin Web-based ADAMS Search.'' For problems with ADAMS, 
please contact the NRC's Public Document Room (PDR) reference staff at

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1-800-397-4209, 301-415-4737, or by email to [email protected]. The 
draft NSIR/DPR-ISG-02, the final NSIR/DPR-ISG-02, the public comments, 
and the NRC staff's responses to public comments are available in ADAMS 
under Accession Nos. ML13304B442, ML14106A057, ML14225A717, and 
ML14230A346.
     NRC's PDR: You may examine and purchase copies of public 
documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 
Rockville Pike, Rockville, Maryland 20852.

FOR FURTHER INFORMATION CONTACT: Michael Wasem, telephone: 301-287-
3793, email: [email protected], or Michael Norris, telephone: 301-
287-3754, email: [email protected], both of the Office of Nuclear 
Security and Incident Response, U.S. Nuclear Regulatory Commission, 
Washington DC 20555-0001.

SUPPLEMENTARY INFORMATION: 

I. Discussion

    Currently, licensees of permanently shut down and defueled nuclear 
power plants are required to maintain emergency plans meeting the same 
requirements as emergency plans for operating nuclear power plants. 
Nuclear power plants that have permanently ceased operating and 
permanently removed fuel from the reactor vessel, with spent fuel 
stored in the spent fuel pool and/or in dry cask storage provide less 
of a risk of radiological releases than operating nuclear power plants. 
Licensees of these decommissioning plants have historically submitted 
requests for exemption from emergency preparedness regulations based on 
this lower risk. The final ISG will be used by NRC staff for future 
submittals and reflects the experience of NRC staff in the technical 
review of exemptions requested for the Kewaunee Power Station (KPS), as 
documented in SECY-14-0066, ``Request by Dominion Energy Kewaunee, Inc. 
for Exemptions from Certain Emergency Planning Requirements'' (ADAMS 
Accession No. ML14072A257), and for the review of proposed changes to 
the KPS emergency plan and emergency action level (EAL) scheme 
implementing exemptions as approved by the Commission in Staff 
Requirements Memorandum (SRM) to SECY-14-0066 ADAMS Accession No. 
ML14219A366). The final ISG is intended to provide guidance for staff 
to facilitate the clear and consistent reviews of subsequent requests 
for exemptions to specific emergency plan requirements of part 50 of 
Title 10 of the Code of Federal Regulations (10 CFR) for a permanently 
shut down and defueled power reactor, and for license amendments to 
emergency plans and EAL schemes implementing the specific emergency 
plan requirements of 10 CFR part 50, as exempted.
    Licensees have historically used the exemption process to decrease 
the burden of maintaining required parts of emergency plans in cases 
where continued application of the regulation by the licensee is not 
necessary to achieve the underlying purpose of the regulation. The 
findings from previous exemption request reviews, along with the 
results of studies such as NUREG-2161: ``Consequence Study of a Beyond-
Design-Basis Earthquake Affecting the Spent Fuel Pool for a U.S. Mark I 
Boiling Water Reactor'' (ADAMS Accession No. ML14255A365); NUREG-1738, 
``Technical Study of Spent Fuel Accident Risk at Decommissioning 
Nuclear Power Plants'' (ADAMS Accession No. ML010430066); and NUREG-
1864, ``A Pilot Probabilistic Risk Assessment of a Dry Cask Storage 
System at a Nuclear Power Plant'' (ADAMS Accession No. ML071340012), 
inform the technical review of exemptions to specific emergency plan 
requirements of 10 CFR part 50, and license amendments to a licensee's 
emergency plan and EAL scheme, as exempted.
    The Commission directed the staff in SRMs to SECY-0066 and SECY-14-
0118, ``Request by Duke Energy Florida, Inc., for Exemptions from 
Certain Emergency Planning Requirements'' (ADAMS Accession No. 
ML14219A444) to proceed with an integrated rulemaking on 
decommissioning. It is anticipated that this ISG will be replaced by 
future guidance developed in conjunction with this rulemaking.

II. Public Comments

    A draft ISG was published for public comment in the Federal 
Register on January 10, 2014 (79 FR 1900). The public comment period 
closed on April 10, 2014. The NRC received 22 comment submissions on 
the draft ISG from members of the public, non-government organizations, 
and the nuclear industry. None of the comments received from members of 
the public supported a reduction in emergency preparedness for 
decommissioning nuclear power plants. In addition, eight of the 
submissions from members of the public were directed specifically at 
decommissioning of a specific licensee. The submission from the Nuclear 
Energy Institute (NEI) provided editorial comments, comments for 
clarification, and a request that power reactors undergoing 
decommissioning need not implement Initiating Conditions PD 
[permanently defueled]-HU1 and PD-HA1 in the EALs as outlined in NEI 
99-01 (Revision 6), ``Development of Emergency Action Levels for Non-
Passive Reactors'' (ADAMS Accession No. ML12326A805). The NRC received 
six comment submissions from representatives of other non-governmental 
organizations opposing any reduction in emergency planning and 
expressing dissatisfaction with the NRC's exemption process.

III. Changes to ISG

    This ISG was revised from the draft that appeared in the Federal 
Register on January 20, 2014, based on public comments, NRC review of 
the Kewaunee exemption request, and subsequent Commission direction. A 
summary of the changes follows:
    Section 1.0, Purpose, was expanded to include a description of 
Table 1 (Exemptions for Consideration) and Attachment 1 (Staff Guidance 
for Evaluation of Permanently Defueled Emergency Plans), and a 
discussion on how they are to be used by NRC staff. The NRC also added 
a description of the process to be used for the review of changes to a 
decommissioning licensee's EALs.
    Section 2.0, Scope, was modified to reflect that licensees may 
submit exemption requests when they notify the NRC of the intent to 
permanently cease operation. The draft document incorrectly stated that 
the ISG could only be used after the licensee had certified that the 
reactor vessel was defueled.
    The NRC deleted the term ``risk factor'' and moved the discussion 
on risk from Section 3.0, Background, to Section 4.0, Overview of 
Existing Guidance. A short description of physical security 
requirements for decommissioning nuclear power reactors was added to 
Section 3.0.
    Table 1 was revised to reflect potential exemption requests based 
on the Commission's SRM dated August 7, 2014, for SECY-14-0066.
    Attachment 1 was replaced in its entirety by a table of the 
applicable guidance contained in NUREG-0654/FEMA-REP-1 (Revision 1), 
``Criteria for Preparation and Evaluation of Radiological Emergency 
Response Plans and Preparedness in Support of Nuclear Power Plants'' 
(ADAMS Accession No. ML040420012).

IV. Congressional Review Act

    NSIR/DPR-ISG-02 is a rule as defined in the Congressional Review 
Act (5 U.S.C. 801-808). However, the Office of Management and Budget 
has not found

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it to be a major rule as defined in the Congressional Review Act.

V. Backfitting and Issue Finality

    The NRC is issuing interim guidance for the NRC staff regarding its 
review of requests from licensees of decommissioning nuclear power 
plants for exemptions from specific emergency plan requirements in 10 
CFR part 50 and license amendments to permanently defueled emergency 
plans. Issuance of the ISG does not constitute backfitting as defined 
in 10 CFR 50.109 (the Backfit Rule) and is not otherwise inconsistent 
with the issue finality provisions in 10 CFR part 52. The NRC's 
position is based upon the following considerations.
    1. The ISG positions do not constitute backfitting, inasmuch as the 
ISG is internal guidance to NRC staff.
    The ISG provides interim guidance to the staff on how to review 
certain requests for exemption or license amendments. Changes in 
internal staff guidance are not matters for which applicants or 
licensees are protected under 10 CFR 50.109 or issue finality 
provisions in 10 CFR part 52.
    2. The staff has no intention to impose the ISG on existing nuclear 
power plant licenses or holders of regulatory approvals either now or 
in the future (absent a voluntary request for change from the licensee 
or holder of a regulatory approval).
    The staff does not intend to impose or apply the positions 
described in the ISG to existing (already issued) licenses (e.g., 
operating licenses and combined licenses) and regulatory approvals. 
Hence, the ISG--even if considered guidance that is within the purview 
of the issue finality provisions in 10 CFR part 52--need not be 
evaluated as if it were a backfit or as being inconsistent with issue 
finality provisions. If, in the future, the staff seeks to impose a 
position in the ISG on holders of already issued licenses in a manner 
that does not provide issue finality as described in the applicable 
issue finality provision, then the staff must make the showing as set 
forth in the Backfit Rule, or address the criteria for avoiding issue 
finality as described in the applicable issue finality provision, as 
applicable.
    3. Backfitting and issue finality do not--with limited exceptions 
not applicable here--protect current or future applicants.
    Applicants and potential applicants are not, with certain 
exceptions, protected by either the Backfit Rule or any issue finality 
provisions under 10 CFR part 52. This is because neither the Backfit 
Rule nor the issue finality provisions under 10 CFR part 52--with 
certain exclusions discussed below--were intended to apply to every NRC 
action that substantially changes the expectations of current and 
future applicants.
    The exceptions to the general principle are applicable whenever an 
applicant references a 10 CFR part 52 license (e.g., an early site 
permit) and/or NRC regulatory approval (e.g., a design certification 
rule) with specified issue finality provisions. The staff does not, at 
this time, intend to impose the positions represented in the ISG in a 
manner that is inconsistent with any issue finality provisions.
    If, in the future, the staff seeks to impose a position in the ISG 
in a manner that does not provide issue finality as described in the 
applicable issue finality provision, then the staff must address the 
criteria for avoiding issue finality as described in the applicable 
issue finality provision.

    Dated at Rockville, Maryland, this 11th day of May, 2015.

    For the Nuclear Regulatory Commission.
Robert J. Lewis,
Director, Division of Preparedness and Response, Office of Nuclear 
Security and Incident Response.
[FR Doc. 2015-12377 Filed 5-20-15; 8:45 am]
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