[Federal Register Volume 85, Number 42 (Tuesday, March 3, 2020)]
[Proposed Rules]
[Pages 12442-12449]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-04271]
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NUCLEAR REGULATORY COMMISSION
10 CFR Part 50
[Docket No. PRM-50-114; NRC-2016-0204]
Power Reactors in Extended Shutdowns
AGENCY: Nuclear Regulatory Commission.
ACTION: Petition for rulemaking; denial.
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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is denying a
petition for rulemaking dated September 1, 2016, submitted by Mr. David
Lochbaum on behalf of the Union of Concerned Scientists and two co-
petitioners (the petitioners). The petition was docketed by the NRC on
September 14, 2016, and was assigned Docket No. PRM-50-114. The
petitioners requested that the NRC amend its regulations to
``promulgate regulations applicable to nuclear power reactors with
operating licenses issued by the NRC but in an extended outage.'' The
NRC is denying the petition because the NRC already has regulatory
processes in place to address the issues identified in the petition.
DATES: The docket for the petition for rulemaking, PRM-50-114, is
closed on March 3, 2020.
ADDRESSES: Please refer to Docket ID NRC-2016-0204, when contacting the
NRC about the availability of information regarding this petition. You
may obtain publicly-available information related to this petition by
any of the following methods:
Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2016-0204. Address
questions about NRC dockets to Carol Gallagher; telephone: 301-415-
3463; email: [email protected]. For technical questions, contact
the individual 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 https://www.nrc.gov/reading-rm/adams.html. To begin the search, select Begin Web-based ADAMS Search.
For problems with ADAMS, please contact the NRC's Public Document Room
(PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to
[email protected]. For the convenience of the reader, instructions
about obtaining materials referenced in this document are provided in
the ``Availability of Documents'' section.
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: Dennis Andrukat, Office of Nuclear
Material Safety and Safeguards, telephone: 301-415-3561; email:
[email protected]; U.S. Nuclear Regulatory Commission, Washington
DC 20555-0001.
SUPPLEMENTARY INFORMATION:
Table of Contents:
I. The Petition
II. Public Comments on the Petition
III. Reasons for Denial
IV. Availability of Documents
V. Conclusion
[[Page 12443]]
I. The Petition
Section 2.802 of title 10 of the Code of Federal Regulations (10
CFR), ``Petition for rulemaking--requirements for filing,'' provides an
opportunity for any person to petition the Commission to issue, amend,
or rescind any regulation. On September 1, 2016, Mr. David Lochbaum, on
behalf of the Union of Concerned Scientists and co-petitioners
Greenpeace and Natural Resources Defense Council (petitioners),
submitted a petition for rulemaking (PRM) to the NRC. The NRC docketed
this petition and assigned it Docket No. PRM-50-114. The petitioners
requested that the NRC amend 10 CFR part 50, ``Domestic Licensing of
Production and Utilization Facilities,'' to ``promulgate regulations
applicable to nuclear power reactors with operating licenses issued by
the NRC but in an extended outage.''
The petitioners described a scenario in which an operating
commercial nuclear power plant (facility) could voluntarily be in an
extended shutdown with no immediate plans to decommission. The
petitioners stated that there are no regulations to prevent a licensee
from changing its decision to cease operations by retracting its
certification to do so, and that the current regulations were developed
for operating reactor facilities and for reactor facilities in
decommissioning, not for facilities ``in limbo that will at some
unspecified later date return to the operating reactor world or join
the decommissioning community.'' The petitioners stated that the
current regulations are not intended, as written, for an operating
facility in an ``extended shutdown.'' \1\ The petitioners also stated
that a licensee can place a facility in an extended shutdown without
public participation or the NRC's review and approval. The petitioners
contended that in the current economic climate, licensees may choose to
place a facility in an extended shutdown until the marketplace becomes
more favorable or the decision to proceed with decommissioning is made.
The petitioners cited the Browns Ferry Nuclear Plant, Unit 1, as an
example of a facility in an extended shutdown. In 1985, Tennessee
Valley Authority voluntarily shut down Unit 1 and did not restart it
until 2007. Ultimately, the petitioners asserted that the current
regulatory framework does not manage the risk of a facility in an
extended shutdown that a licensee may someday seek to restart.
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\1\ The petition describes an ``extended shutdown'' as either an
operating reactor that has been shut down for 2 years or more and is
not actively pursuing restart under a formal NRC process or when a
licensee has voluntarily notified the NRC of its intent to place the
facility in an ``extended shutdown'' condition.
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The NRC identified four main issues in the petition, as follows:
(1) Define ``extended shutdown'' for power reactors.
(2) Establish requirements during an extended shutdown period,
including the petitioners' proposed ``Reactor Extended Shutdown
Activities Report'' (RESAR).
(3) Establish requirements to exit and restart from an extended
shutdown.
(4) Conduct a decommissioning funding review(s) during an extended
shutdown and establish requirements to prevent the retraction of any
letter of permanent cessation of operations certification.
II. Public Comments on the Petition
The NRC published a notice of docketing and request for comment in
the Federal Register on December 9, 2016. The NRC also sought public
comment on six specific questions. The public comment period closed on
February 22, 2017. The NRC received two public comment submissions
during the 75-day public comment period; both submissions, which were
from industry representatives, were in favor of denying the petition
and provided a basis for that position. The two comment submissions,
from the Nuclear Energy Institute (NEI) and Entergy Nuclear Operations,
Inc. (Entergy), raised five comments in total. Only NEI addressed the
specific questions that were included in the Federal Register notice
that requested public comments. The ADAMS Accession Nos. for the
comment submissions can be found in the ``Availability of Documents''
section of this document.
Public Comments
The NRC has considered the public comments received on the petition
for rulemaking. The NRC response follows a short summary of each
comment submission.
Comment Submission 1
NEI recommended that the NRC deny the petition because the petition
has not demonstrated that the existing regulations require rulemaking
based on the criteria in Sec. 2.802(c)(1)(iii). The commenter stated
that PRM-50-114 should be denied because: (Comment 1) ``the petition
incorrectly asserts that the Commission's existing regulations are
inadequate as applied to operating reactors that have entered an
extended shutdown,'' (Comment 2) ``the petition provides no basis for
requesting that the NRC establish new requirements that must be
satisfied for a reactor to restart after an extended shutdown,'' and
(Comment 3) ``the petition provides no basis for suggesting that the
NRC should explicitly prohibit withdrawal of the certification of the
permanent cessation of operations submitted pursuant to Sec.
50.82(a)(1)(i).'' The commenter noted that a facility in extended
shutdown must continue to comply with its operating license and NRC
regulations applicable to operating nuclear power plants. This
contrasts with the petitioners' assertions that the Commission's
existing regulations are inadequate as applied to operating reactors
that have entered an extended shutdown. The commenter noted that a
licensee would still meet all applicable safety and security
requirements even if it defers a generic communication action during an
extended shutdown scenario. This is because generic communications do
not impose new or changed regulatory requirements on licensees.
The commenter further noted that the petition does not provide a
basis to change the regulations to require licensees to submit
preliminary decommissioning cost estimates every 5 years during an
extended shutdown. Once a licensee permanently ceases operations, then
the licensee would be required to submit site-specific cost estimates
under Sec. 50.82, ``Termination of license.'' The commenter noted that
PRM-50-114 acknowledges that current regulations already require 10 CFR
part 50 power reactor licensees to report decommissioning funding
status every 2 years. The commenter stated that
. . . many NRC regulations applicable to operating nuclear power
plants continue to apply even after a nuclear power reactor has
permanently ceased operation and defueled. This includes several
regulations that seem to be of specific concern to the petitioners
(e.g., emergency planning and physical security).
The commenter asserted that the petitioners provide no basis for
requesting that the NRC establish new requirements that must be
satisfied for a reactor to restart after an extended shutdown.
In response to the petitioners' requested new regulations for
reactors that are in an extended shutdown and not actively pursuing
restart to be evaluated under a formal process such as Inspection
Manual Chapter (IMC) 0350, ``Oversight of Reactor Facilities in a
Shutdown Condition Due to Significant Performance and/or Operational
Concerns,'' the commenter noted that existing NRC procedures in IMC
0375, ``Implementation of the Reactor Oversight Process at Reactor
Facilities in an Extended Shutdown
[[Page 12444]]
Condition for Reasons Other Than Performance,'' would achieve the
petitioners' objective. This Inspection Manual Chapter is the NRC's
guidance for implementation of the reactor oversight process for plants
in an extended shutdown condition for reasons not related to
performance. The commenter argues that IMC 0375 ensures that the NRC
``communicates unified and consistent oversight in a clear and
predictable manner to the licensee, the public, and other
stakeholders'' and also addresses the documentation of the required
regulatory and licensee actions taken; the resolved technical issues
leading to approval for restart, if required; and the eventual return
of the plant to the routine reactor oversight process. The commenter
asserted that IMC 0375 will provide assurance that the plant will be
operated in a manner that provides adequate protection of public health
and safety following restart. The commenter stated that ``the NRC
oversight requested in the petition already exists'' under the reactor
oversight process. The commenter further stated that the resulting
regulations sought in this petition would not result in significant
improvements to reactor safety or security and would not improve
regulatory efficiency.
NRC Response: The NRC generally agrees with the comments that were
relayed in Comment Submission 1. Specifically, the NRC agrees that the
Commission's existing regulations adequately address facilities that
enter potential extended shutdown periods.
Comment Submission 2
Entergy recommended that the NRC deny the petition. The commenter
endorsed (Comment 4) the comments provided in NEI's letter. In
addition, the commenter stated that (Comment 5) making a Sec.
50.82(a)(1)(i) certification irrevocable is directly contrary to the
assumptions and conditions of a recent settlement agreement entered
into by Entergy, the State of New York (among other related New York
governmental entities), and Riverkeeper, Inc., regarding the continued
operation of Indian Point Units 2 and 3. The commenter stated that
making a Sec. 50.82(a)(1)(i) certification irrevocable would nullify
key terms of this important agreement.
NRC Response: With respect to Entergy's endorsement of the NEI
comments as reflected in Comment Submission 1, the NRC's response is
provided in response to Comment Submission 1. With respect to Entergy's
Comment 5, the issue raised is outside the scope of the PRM.
Specific Questions
The NRC has considered the responses received to the specific
questions. Only NEI provided responses to the six specific questions on
which the NRC sought comment. A summary of the responses provided in
NEI's submission follows.
Question 1: The petition outlines a scenario where a reactor is in
an extended shutdown condition due to economic or other reasons and
would at some unspecified later date return to operation. The petition
uses the Browns Ferry Nuclear Plant as an example, where the Tennessee
Valley Authority voluntarily shut down one unit from 1985 to 2007. Are
there any facilities or licensees who may be likely to use the
petitioners' extended shutdown scenario in the future? Please provide
technical, scientific, or other data or information demonstrating the
basis for your position.
Comment: The commenter responded that it is not aware of a
commercial power reactor likely to use the extended shutdown scenario.
The commenter stated that a licensee is not prohibited from entering
into an extended shutdown voluntarily and references the NRC's response
to a letter from David A. Kraft of Nuclear Energy Information Service
dated June 16, 2016.
NRC's Response: The NRC agrees with the comment and notes the NRC's
August 4, 2016 response to the David A. Kraft letter states that NRC
regulations do not prohibit a licensee from voluntarily placing its
facilities in an extended shutdown, while continuing to meet all safety
and security requirements as outlined in the facility's operating
license, without terminating the operating license.
Question 2: The petitioners contend that the NRC's existing
regulations were promulgated for operating reactors, and that specific
regulations are needed to address non-operating reactors in an
``extended shutdown.'' Assuming the extended shutdown scenario is
credible, in what specific ways are the existing regulations identified
in the PRM insufficient to address the scenario described by the
petitioners? Please provide technical, scientific, or other data or
information demonstrating the basis for your position.
Comment: The commenter responded that the regulations are
sufficient to address the extended shutdown scenario and therefore no
changes to the NRC's regulations are necessary to ensure adequate
protection of public health and safety or security.
NRC's Response: The NRC agrees with the comment.
Question 3: Assuming that the existing regulations identified in
the PRM are insufficient to address the extended shutdown scenario,
what specific changes to those regulations are needed to facilitate the
requested rulemaking? Please provide technical, scientific, or other
data or information demonstrating the basis for your position.
Comment: The commenter responded that the regulations are
sufficient to address the extended shutdown scenario, and therefore no
changes to the NRC's regulations are necessary to ensure adequate
protection of public health and safety or security.
NRC's Response: The NRC agrees with the comment.
Question 4: The petition describes a plant in an ``extended
shutdown,'' and proposes two criteria to enter into this non-operating
state (submission of Sec. 50.82(a)(1)(i) and Sec. 50.4(b)(8)
notifications; and a shutdown period of 2 years). Should the term
``extended shutdown'' be defined in Sec. 50.2, ``Definitions,'' and
should the regulations specify the timeframe for this scenario? Please
provide technical, scientific, or other data or information
demonstrating the basis for your position.
Comment: The commenter responded that ``extended shutdown'' does
not require a definition in the federal regulations because the
regulations are sufficient to address the extended shutdown scenario.
NRC's Response: The NRC agrees with the comment.
Question 5: Given the NRC's long-standing, well-understood Reactor
Oversight Program, what potential changes would need to be considered
to ensure adequate oversight of a reactor during an extended shutdown?
Please provide technical, scientific, or other data or information
demonstrating the basis for your position.
Comment: The commenter responded that the regulations are
sufficient to address the extended shutdown scenario, and therefore no
changes to the NRC's regulations are necessary to ensure adequate
protection of public health and safety or security.
NRC's Response: The NRC agrees with the comment.
Question 6: What additional reporting to the NRC should be required
for a reactor in an extended shutdown, and with what level of detail
and frequency (e.g., the potential changes to the submission of the
decommissioning trust fund reports)? Please provide technical,
scientific, or other data or information demonstrating the basis for
your position.
[[Page 12445]]
Comment: The commenter responded that the regulations are
sufficient to address the extended shutdown scenario, and therefore no
changes to the NRC's regulations are necessary to ensure adequate
protection of public health and safety or security. The commenter does
not agree that additional reporting requirements are warranted because
the petitioners have not ``demonstrated the need for any changes to the
reporting requirements applicable to a reactor'' in an extended
shutdown. The commenter adds that both a facility that is actively
operating and a facility that is in an extended shutdown would be
restricted to using only 3 percent of the decommissioning trust funds
for pre-planning activities, consistent with the regulations in Sec.
50.82.
NRC's Response: The NRC agrees with the comment.
III. Reasons for Denial
The NRC is denying the petition because the petitioners did not
present any significant new information or arguments that would support
the requested changes for extended shutdown conditions. Furthermore,
the NRC has determined that the issues raised by the petitioners are
adequately addressed by existing NRC regulations and no amendments to
the NRC's regulations are necessary.
Issue No. 1: Define ``Extended Shutdown'' for Power Reactors
The NRC is denying requested change No. 1 because there is no need
to define ``extended shutdown'' in the regulations. The holder of an
operating license is required to maintain the facility and all of its
security and operational programs in accordance with the conditions of
its operating license. This remains true whether the facility is
operating or shut down for any period, including extended shutdowns. As
discussed further under Issue Nos. 2, 3, and 4, the licensee must
maintain programs in effect to ensure the continued safety and security
of the facility regardless of the mode of operation. Therefore, the
issues raised by the petitioners associated with what could be defined
as an extended shutdown are currently and adequately covered by the
existing regulations and NRC processes.
Issue No. 2: Establish Requirements During an Extended Shutdown Period,
Including the Petitioners' Proposed ``Reactor Extended Shutdown
Activities Report'' (RESAR)
The NRC is denying requested change No. 2 because there is no need
to require the licensee to submit a RESAR prior to entering an extended
shutdown condition. This proposed report, as sought by the petitioners,
would be similar to the post-shutdown decommissioning activities report
required by Sec. 50.82(a)(4)(i) and would describe how certain
activities are handled during an extended shutdown. The petitioners
identified topics they believe should be addressed in the proposed
report. Those items are listed below followed by the staff's evaluation
of each item:
Operator License
Aging Management
Technical Specifications
Inservice Inspections (and Inservice Testing)
Quality Assurance
Irradiated Fuel Protection
Fitness for Duty
Operator License
An operator's license is not automatically terminated based solely
on an extended plant shutdown. Under Sec. 55.55, ``Expiration,'' an
operator's license expires 6 years after the date of issuance, upon
termination of employment, or upon determination by the facility
licensee that the license is no longer needed. An operator's license
can be renewed if the requirements of Sec. 55.57, ``Renewal of
licenses,'' are met. Whether the facility is operating or is in
extended shutdown, licensed operators and senior operators, as defined
in Sec. 55.4, ``Definitions,'' are required to successfully complete
requalification requirements established by Sec. 55.59,
``Requalification,'' to maintain their licenses. Further, licensed
operators and senior operators are required to meet proficiency
requirements established by Sec. 55.53(e) to maintain an active
status. Active status under Sec. 55.53(e) is maintained by performing
the functions of an operator or a senior operator, as defined in the
facility's technical specifications, for a specified number of shifts
per calendar quarter. For an operator or senior operator who does not
meet the Sec. 55.53(e) requirements resulting in an inactive status on
his or her license, the requirements of Sec. 55.53(f) apply to ensure
proficiency before an operator can legally perform licensed duties. To
maintain or restore active status on an operator's license, the
facility would need to remain in a mode of operation that requires
operators to actively perform the functions of an operator or senior
operator, as defined by Sec. 55.4. However, if the facility is in a
mode of operation that does not allow for licensed duties to be
performed, this may result in a licensed operator(s) becoming inactive.
The licensee may find it appropriate to have a reduced number of active
licensed operators during an extended shutdown. Before restarting,
however (as discussed in Section III, ``Reasons for Denial,'' Issue No.
3, ``Establish requirements to exit and restart from extended
shutdown,'' of this document), the licensee would need to have the
required number of licensed operators in place under its licensing
basis and the existing 10 CFR part 55 requirements.
Aging Management
A licensee with a facility in an extended shutdown must still
perform the activities specified in its NRC-reviewed aging management
programs if its current licensing basis includes such programs. Any
adjustments to aging management programs are considered changes to the
facility's licensing basis and are controlled through current
regulations under Sec. 50.59, ``Changes, tests, and experiments.''
The scope of aging management activities does not change during an
extended shutdown. Current regulations in 10 CFR part 54 establish the
scope of aging management programs that are only for passive
components, based on whether they perform a prescribed intended
function ``without moving parts or without a change in configuration or
properties.'' The determination of whether a component is classified as
either passive or active is not based on frequency of either operation
or surveillance testing. The assurance of proper function for active
components during an extended shutdown would not fall within
established aging management activities. Active components are included
in the surveillance requirements that are part of the technical
specifications in the license, as well as inservice testing programs
required by regulation.
Technical Specifications
Under Sec. 50.36, ``Technical specifications,'' each operating
license under 10 CFR part 50 for a power reactor must include technical
specifications. These technical specifications include limiting
conditions for operation, as described in Sec. 50.36(c)(2), that
represent the lowest functional capability or performance levels of
equipment required for safe operation of the facility. These technical
specifications also include surveillance requirements, as described in
Sec. 50.36(c)(3), that are requirements relating to test, calibration
or inspection to assure that the necessary quality of systems and
components is maintained
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and that the limiting conditions for operation will be met.
The usage rules contained in technical specifications are
structured to provide reasonable assurance of continued adequate
protection of public health and safety regardless of the amount of time
a facility has been shut down. The requirements for performing and
meeting the surveillance requirements in technical specifications are
independent of the amount of time a facility has been shut down.
Rather, requirements for performing surveillances and meeting
surveillance requirements are dependent on the mode the facility is in,
as defined in the technical specifications, or on other specified
conditions in the applicability of a limiting condition for operation.
Before a licensee changes the mode a facility is in (for example
from a cold shutdown to hot shutdown or from startup to power
operation), any structures, systems, and components necessary for safe
operation of the facility in the new mode must be operable and the
applicable surveillances must have been met as required by the
facility's technical specifications. No additional ``lay-up'' program
or testing/inspection is required.
The usage rules of technical specifications are independent of the
amount of time a facility has been in a shutdown condition and a
noncompliance with the usage rules is a noncompliance with the
operating license requirements subject to enforcement action.
Therefore, the NRC does not agree that a new regulation is needed to
require a licensee to explain whether testing and inspections per the
technical specifications will be continued during an extended shutdown
period.
The technical specifications set out different requirements for
different modes of operation. The NRC agrees that fewer requirements
within the technical specifications are applicable when a reactor is in
cold shutdown, refueling or defueled. However, the technical
specifications still provide reasonable assurance of adequate
protection of public health and safety. The reason that fewer
requirements within the technical specifications apply in cold
shutdown, refueling, or defueled conditions is that there are fewer
credible scenarios that could impact public health and safety when
plants are in those conditions. Nonetheless, the licensee must evaluate
the impact of degradation of required structures, systems, and
components on the operability of those structures, systems, and
components. If a licensee determines that a required system is
inoperable, then the licensee must comply with the required actions in
the technical specifications. Furthermore, the design features of the
technical specifications apply at all times, regardless of mode or time
since shutdown. For example, the design features typically contain
requirements for fuel storage that, if altered or not met, could have a
significant impact on safety.
Inservice Inspection and Inservice Testing
Under Sec. 50.55a(g), Section XI of the American Society of
Mechanical Engineers (ASME) Boiler and Pressure Vessel Code provides
the requirements for inservice inspection of nuclear power plants.
Section XI requires examinations to be scheduled in 10-year inspection
intervals. Section XI has provisions that allow a licensee to shorten
or lengthen inspection intervals to conform to a facility's outage
schedule. Section XI, IWA-2430(d) provides allowances for extended
outages. It states, in part, that:
. . . for plants that are out of service continuously for 6 months
or more, the inspection interval during which the outage occurred
may be extended for a period equivalent to the outage and the
original pattern of intervals extended accordingly for successive
intervals.
Under Sec. 50.55a(f), the ASME Operation and Maintenance of
Nuclear Power Plants (OM Code) provides requirements for inservice
testing of pumps and valves in nuclear power facilities. The OM Code
requires testing to be scheduled periodically within the 10-year
inservice testing program intervals. Licensees may extend the 10-year
inservice testing program intervals for plants with extended outages,
as discussed above for inservice inspection. Under the OM Code,
licensees of plants that are continuously out-of-service are not
required to follow the test schedule for pumps and valves and do not
need to submit relief requests, which would otherwise be necessary. The
OM Code requires that, within the 3 months before a plant is placed in
operation, the pumps must be tested and the valves must be exercised.
Additionally, Section 06.02 of IMC 0375 directs inspectors to
verify that the licensee has considered the latest vendor bulletins and
other important information related to safety-related equipment,
consistent with licensee procedures.
Quality Assurance
There is no relaxation of the requirements of appendix B, ``Quality
Assurance Criteria for Nuclear Power Plants and Fuel Reprocessing
Plants,'' to 10 CFR part 50 (appendix B) for an operating facility that
is in an extended outage. Appendix B establishes quality assurance
requirements for the design, manufacture, construction, and operation
of certain structures, systems, and components. The pertinent
requirements of this appendix apply to all licensee activities
affecting the safety-related functions of these structures, systems,
and components, regardless of whether the facility is producing power
or in a shutdown condition. Such activities include designing,
purchasing, fabricating, handling, shipping, storing, cleaning,
erecting, installing, inspecting, testing, operating, maintaining,
repairing, refueling, and modifying these structures, systems, and
components. Criterion II, ``Quality Assurance Program,'' of appendix B,
requires that the quality assurance program, be documented by written
policies, procedures, or instructions and be carried out throughout the
life of the facility. Appendix B requires compliance with the
applicable portions of the regulations for covered activities
regardless of whether or how long the facility has been in a shutdown
period. Licensed operators and other licensee staff would still be
required to be trained to perform activities affecting quality; to
follow written procedures or instructions (where applicable); and to
document, evaluate, and resolve issues through the implementation of
the non-conformance and corrective action programs. In addition,
Criterion XVIII, ``Audits,'' of appendix B, requires licensee staff to
continue to evaluate programs and processes through periodic auditing
throughout the life of the facility and is applicable to facilities
regardless of whether or how long a facility has been in a shutdown
condition.
Irradiated Fuel \2\
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\2\ As part of its review of the petition, the NRC reviewed
other existing regulatory requirements. While not specifically
mentioned by the petitioners, a discussion of emergency planning
requirements and security design basis threats is included in this
notice, as both topics relate to protecting the public and plant
personnel, should irradiated fuel become damaged.
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The petitioners requested that the NRC require licensees to develop
and submit a RESAR that includes a discussion of how the facility will
ensure that any irradiated fuel will be protected and not be damaged
during an extended shutdown period. In addition, the petitioners
requested that the RESAR describe how the public and
[[Page 12447]]
facility personnel will be protected should irradiated fuel become
damaged. The NRC determined that the existing regulations, guidance,
and processes already discussed in this notice would prevent and
mitigate such damage from a design and safety standpoint. The NRC also
reviewed other existing regulatory requirements not specifically
mentioned by the petitioners. Specifically, the NRC considered
emergency planning requirements and security requirements in making
this conclusion.
Irradiated Fuel: Emergency Planning
Emergency planning regulations and required licensee emergency
plans are in place to protect workers and the public from damaged
irradiated fuel including when the facility is in extended shutdown.
Specifically, Sec. 50.54(q)(2) requires that the licensee follow and
maintain the effectiveness of an emergency plan that meets the
requirements in appendix E to part 50 and, for a nuclear power reactor
facility, the planning standards of Sec. 50.47(b). Under Sec.
50.47(b)(14), a licensee must conduct periodic exercises to evaluate
major portions of emergency response capabilities, while periodic
drills are conducted to develop and maintain key skills. Any
deficiencies identified as a result of exercises or drills must be
corrected.
Irradiated Fuel: Design Basis Threat
Existing regulations in 10 CFR part 73, ``Physical Protection of
Plants and Materials,'' require security protection when irradiated
fuel is onsite and stored inside the protected area, regardless of the
reactor's operational mode, or conditions, including an extended
shutdown condition.
Under Sec. 73.55, licensees who are authorized to operate nuclear
power reactors under 10 CFR part 50 or 52 (after the Commission has
made the finding under Sec. 52.103(g)) must establish and maintain a
security plan and the associated protective strategy with defined
design basis threats, as described in Sec. Sec. 73.1 and 73.2, to
protect against acts of radiological sabotage. The security plan
includes a physical security plan, a training and qualification plan, a
safeguards contingency plan, and a cyber security plan.
Along with the security plan, Sec. 73.55(k)(8) requires the
licensee to establish and implement a protective strategy when
irradiated fuel is onsite and stored in the protected area, regardless
of the reactor's operational modes, or conditions.
Fitness for Duty
Existing regulations in 10 CFR part 26, ``Fitness for Duty
Programs,'' require that all persons who are granted unescorted access
to nuclear power reactor protected areas by the licensees be subject to
a fitness-for-duty program. Under Sec. 26.3(a), licensees who are
authorized to operate a nuclear power reactor facility under 10 CFR
part 50 or part 52 (after the Commission has made the finding under
Sec. 52.103(g)) must comply with the requirements of 10 CFR part 26,
except for subpart K, ``FFD Program for Construction.''
The fitness-for-duty requirements apply regardless of the reactor's
operational modes, or conditions, and include drug and alcohol testing,
behavioral observation, and determinations of fitness.
Therefore, staff has determined that requested change No. 2, to
require a licensee to develop and submit a RESAR, whether prior to or
during an extended shutdown, is not necessary because the issues raised
by the petitioners are currently and adequately covered by the existing
regulations.
Issue No. 3: Establish Requirements To Exit and Restart From Extended
Shutdown
The NRC is denying requested change No. 3 because there is no need
to amend the regulations to establish criteria for exiting an extended
shutdown. The staff determined that existing reactor oversight process
guidance provides for appropriate NRC oversight of a plant in an
extended shutdown condition. Oversight of reactor facilities in
extended shutdown for reasons not related to performance is governed by
IMC 0375. One of the purposes of IMC 0375 is to provide assurance that
the facility will be operated in a manner that provides adequate
protection of public health and safety following restart. Section 06.02
of IMC 0375 discusses the inspection plan and indicates that a focus on
operational readiness of the licensee for reactor restart may be
necessary. Aspects that may be considered as potential areas for
additional NRC inspection include equipment upgrades and maintenance,
procedure updates, facilities maintenance, and the status of the
corrective action program. Also, licensees must continue to implement
the Maintenance Rule in accordance with Sec. 50.65, which mandates (1)
an evaluation every 24 months that takes into account, where practical,
industry-wide operating experience and (2) performance monitoring,
condition monitoring, and preventative maintenance activities for all
equipment covered by the rule. In addition, a facility cannot restart
without active licensed operators per Sec. 55.53 and as described
previously under Issue No. 2.
Before a licensee changes the mode a facility is in, any
structures, systems, and components necessary for safe operation of the
facility in the new mode must be operable and the applicable
surveillances must have been conducted as required by the facility's
technical specifications.
David Kraft of the Nuclear Energy Information Service raised many
of the same issues in a letter to the agency dated June 16, 2016. By
letter dated August 4, 2016, John Giessner from the Division of Nuclear
Materials Safety in NRC Region III responded to Mr. Kraft. In this
response letter, referenced by the petitioners as ``the Giessner
letter,'' the NRC staff answered questions about the requirements for
power reactor decommissioning and extended shutdown. The NRC's response
letter noted that the regulations do not prohibit a licensee from
voluntarily entering the extended shutdown configuration described in
the petition and IMC 0375 provides for NRC oversight of a facility
exiting from extended shutdown. If a licensee were to place a facility
in extended shutdown and later decide to restart, the NRC has
sufficient regulations, processes, and procedures in place to ensure
that the restart is conducted in a safe manner.
The example cited by the petitioners was the extended shutdown of
Browns Ferry Nuclear Plant, Unit 1, which was shut down from March 1985
to June 2007, after operating for 10 years. During the 22-year
shutdown, the NRC continued to provide oversight with multiple resident
inspectors assigned to the Browns Ferry Nuclear Plants. Further, NRC
staff from regional and headquarters offices routinely visited the
Browns Ferry Nuclear Plant for oversight of the operating Unit 2 and 3
reactors. As part of the reactor oversight process, the NRC developed
an inspection procedure to monitor the restart effort and to ensure
that the plant was able to restart and operate in a safe manner. This
procedure formed the basis for the current IMC 0375. The NRC used
existing regulatory tools (e.g., inspectors, inspection procedures,
enforcement of the operating license) during the startup of Browns
Ferry Nuclear Plant, Unit 1, in 2007. As shown by the safe startup of
Browns Ferry Nuclear Plant, Unit 1, the NRC has the regulatory tools
necessary to ensure that the public health and safety and common
defense and security continue to be protected in the context of restart
[[Page 12448]]
of a power reactor following an extended shutdown.
Other examples of power reactor facilities experiencing extended
shutdowns relevant to the petition include: Crystal River Nuclear
Generating Plant, Unit 3, which was shut down for an extended period of
time before permanent cessation of operations; Kewaunee Power Station,
which had permanently shut down and defueled but later considered
restarting and relicensing (ultimately the licensee chose not to seek
authorization for restart); James A. FitzPatrick Nuclear Power Plant,
Davis-Besse Nuclear Power Station, Unit 1, and Perry Nuclear Power
Plant, Unit 1, for which the licensees had made a decision to
permanently cease operations that was later reversed prior to the
cessation of operations. The NRC staff's review of these additional
examples found that the existing regulatory tools were effective and
sufficient in addressing these different scenarios and ensured that the
public health and safety and common defense and security continued to
be protected.
Therefore, the NRC finds that the potential safety and security
issues associated with exit and restart from extended shutdown are
currently and adequately covered by the existing regulations and NRC
processes.
Issue No. 4: Conduct a Decommissioning Funding Review(s) During an
Extended Shutdown and Establish Requirements To Prevent the Retraction
of Any Letter of Permanent Cessation of Operations Certification
The NRC is denying requested change No. 4 because there is no need
to prohibit withdrawal of a certification of permanent cessation of
operations or to require additional assessments of decommissioning
funding during an extended shutdown.
Certifications Under Sec. 50.82, ``Termination of License''
The regulations in Sec. 50.82 do not prohibit a power reactor
licensee from voluntarily placing its facilities in an extended
shutdown without terminating the operating license. The regulations
require a licensee with an operating license for a power reactor in an
extended shutdown to continue to meet all safety and security
requirements as outlined in the facility's operating license.
The regulations in Sec. 50.82(a)(1) specify two actions that the
licensee must take to permanently cease operations of a nuclear power
facility. First, when the licensee decides to permanently cease
operations, the licensee must submit a certification of this decision
to the NRC in writing within 30 days under Sec. 50.82(a)(1)(i). Under
Sec. 50.4(b)(8), this certification must contain the date on which the
power generation operations have ceased or will cease. As a result,
licensees typically submit an initial certification of the intended
permanent cessation of operations providing a planned date and a
certification of actual cessation of operations providing the actual
date. Second, under Sec. 50.82(a)(1)(ii), the licensee must submit to
the NRC a certification of permanent removal of fuel from the reactor
vessel. Under Sec. 50.82(a)(2), once the NRC dockets the
certifications submitted under Sec. 50.82(a)(1), the licensee is no
longer authorized to operate the reactor or place or retain fuel into
the reactor vessel.
The submittal and docketing of a certification under Sec.
50.82(a)(1)(i) of a determination to permanently cease operations alone
is not sufficient to result in removal of a licensee's authority to
operate the reactor. No existing regulation would prevent a power
reactor licensee from changing its decision to cease operations by
retracting its certification under Sec. 50.82(a)(1)(i).
However, the NRC's regulation at Sec. 50.82(a)(6) states that the
licensee must not perform any decommissioning activity that: (1)
Forecloses release of the site for possible unrestricted use, (2)
results in any significant environmental impact not previously
reviewed, or (3) results in there no longer being reasonable assurance
that adequate funds will be available for decommissioning. If any
decommissioning activity could not meet these conditions, the licensee
is prohibited from undertaking the activity until it submits, and the
NRC approves, a license amendment request that describes the proposed
activity and the potential impact associated with that activity.
The petitioners provided no basis for requesting the NRC to
prohibit withdrawal of a certification of permanent cessation of
operations submitted under Sec. 50.82(a)(1)(i). There is no change in
the authority to operate granted by a facility's operating license
associated solely with the filing of the Sec. 50.82(a)(1)(i)
certification. There is also no change in the regulatory treatment of a
commercial nuclear power reactor based solely on the submittal of the
certification of permanent cessation of operations required by Sec.
50.82(a)(1)(i). Thus, withdrawal of this certification, in and of
itself, regardless of whether the licensee intends to enter an extended
shutdown or continue operating the facility, does not affect the status
of the facility with respect to the NRC's requirements. Similar
regulations are found in Sec. 52.110 for combined licenses.
Therefore, the NRC concludes that prohibiting a licensee from
withdrawing a certification of permanent cessation of operations that
had been submitted under Sec. 50.82(a)(1)(i) would not address a new
safety or security issue that is not currently and adequately covered
by the existing regulations.
Decommissioning Funding
The petitioners requested that the amended regulations clearly
address whether decommissioning funding may be used for activities
during a facility's extended shutdown and include the criteria and
conditions governing their use of such funds.
The regulations in Sec. 50.82(a)(8)(ii) limit the use of
decommissioning trust funds by licensees prior to the submittal of the
certifications required under Sec. 50.82(a)(1) of permanent cessation
of operations and permanent removal of fuel from the reactor vessel.
These limitations allow the use of only a specified portion of the
funds for decommissioning planning and would apply during an extended
shutdown as well as during operation. In addition, a licensee in an
extended shutdown is not relieved of any existing decommissioning trust
fund regulations that are applicable to any facility with an operating
license.
The petitioners also requested that the amended regulations require
licensees to submit a preliminary decommissioning cost estimate to the
NRC at 5-year intervals throughout the period of extended shutdown and
inquired whether the decommissioning funding amounts required by Sec.
50.75(c) should be re-assessed during an extended shutdown.
The regulations in Sec. Sec. 50.75(f)(1) and (f)(2) require
licensees to report at least once every 2 years on the status of its
decommissioning funding and related factors. In addition to these
requirements for biennial reports, Sec. 50.75(f)(3) requires that each
power reactor licensee shall, at or about 5 years prior to the
projected end of operations,\3\ submit a preliminary decommissioning
cost estimate that includes an up-to-date assessment of the major
factors that could affect the cost to decommission. An extended
[[Page 12449]]
shutdown would have no effect on the license expiration date, and all
applicable decommissioning funding regulations remain in effect,
including Sec. 50.75.
---------------------------------------------------------------------------
\3\ The ``end of operations'' in this context refers to when a
licensee is no longer authorized to operate the reactor or place or
retain fuel into the reactor vessel, under Sec. 50.82(a)(2).
---------------------------------------------------------------------------
Therefore, the NRC finds that prohibiting withdrawal of a
certification of permanent cessation of operations under Sec.
50.82(a)(1)(i) or requiring additional reassessment of decommissioning
funding during an extended shutdown would not address a new safety or
security issue that is not currently and adequately covered by the
existing regulations.
IV. Availability of Documents
The documents identified in the following table are available to
interested persons through one or more of the methods, as indicated.
------------------------------------------------------------------------
ADAMS Accession No./
Document Federal Register
citation
------------------------------------------------------------------------
Request for Petition for Rulemaking (PRM-50- ML16258A486
114), dated September 1, 2016.................
Federal Register notice, ``Power Reactors in 81 FR 89011
Extended Shutdowns,'' dated December 9, 2016..
Comment Submission 1: Rodney McCullum of ML17055B792
Nuclear Energy Institute (NEI), dated February
22, 2017......................................
Comment Submission 2: Paul Bessette of Morgan, ML17055B953
Lewis & Bockius, LLP (on behalf of Entergy
Nuclear Operations, Inc.), dated February 23,
2017..........................................
IMC 0350, ``Oversight of Reactor Facilities in ML17116A273
a Shutdown Condition Due to Significant
Performance and/or Operational Concerns,''
dated March 1, 2018...........................
IMC 0375, ``Implementation of the Reactor ML15247A274
Oversight Process at Reactor Facilities in an
Extended Shutdown Condition for Reasons Other
Than Performance,'' dated November 13, 2015...
Letter from Mr. David A. Kraft of Nuclear ML16175A449
Energy Information Service, dated June 16,
2016..........................................
NRC Letter to Mr. David A. Kraft of Nuclear ML16218A266
Energy Information Service, dated August 4,
2016..........................................
------------------------------------------------------------------------
The NRC may post materials related to this document, including
public comments, on the Federal Rulemaking website at https://www.regulations.gov under Docket ID NRC-2016-0204. The Federal
Rulemaking website allows you to receive alerts when changes or
additions occur in a docket folder. To subscribe: (1) Navigate to the
docket folder (NRC-2016-0204); (2) click the ``Sign up for Email
Alerts'' link; and (3) enter your email address and select how
frequently you would like to receive emails (daily, weekly, or
monthly).
V. Conclusion
For these reasons, the NRC is denying PRM-50-114. The NRC has
concluded that the issues raised by the petitioners are adequately
addressed by existing NRC regulations and no amendments to the NRC's
regulations are necessary.
Dated at Rockville, Maryland, this 26th day of February, 2020.
For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2020-04271 Filed 3-2-20; 8:45 am]
BILLING CODE 7590-01-P