[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