[Federal Register Volume 85, Number 229 (Friday, November 27, 2020)]
[Notices]
[Pages 76113-76116]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-26189]


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NUCLEAR REGULATORY COMMISSION

[Docket Nos. 50-003, 50-247, and 50-286; NRC-2020-0251]


Holtec Decommissioning International, LLC;

    Indian Point Nuclear Generating Station, Unit Nos. 1, 2, and 3
AGENCY: Nuclear Regulatory Commission.

ACTION: Exemption; issuance.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is issuing an 
exemption in response to a February 12, 2020, request from Holtec 
Decommissioning International, LLC (HDI). The exemption permits HDI to 
make withdrawals from the Indian Point Nuclear Generating Station, Unit 
Nos. 1, 2, and 3 (referred to individually as IP1, IP2, and IP3, 
respectively, and collectively as the Indian Point Energy Center or 
IPEC) Decommissioning Trust Funds (DTFs) for spent fuel management and 
site restoration activities for IP1, IP2, and IP3 without prior 
notification to the NRC. This exemption is effective upon issuance, but 
only applies to HDI upon the consummation of the transfers of the 
licenses for IP1, IP2, and IP3 to Holtec International (Holtec) 
subsidiaries Holtec Indian Point 2, LLC and Holtec Indian Point 3, LLC 
and the transfer of the operating authority under the licenses to HDI.

DATES: The exemption was issued on November 23, 2020.

ADDRESSES: Please refer to Docket ID NRC-2020-0251 when contacting the 
NRC about the availability of information regarding this document. You 
may obtain publicly available information related to this document by 
any of the following methods:
     Federal Rulemaking website: Go to https://www.regulations.gov and search for Docket ID NRC-2020-0251. Address 
questions about Docket IDs in Regulations.gov to Jennifer Borges; 
telephone: 301-287-9127; 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)

[[Page 76114]]

reference staff at 1-800-397-4209, 301-415-4737, or by email to 
[email protected]. The ADAMS accession number for each document 
referenced (if it is available in ADAMS) is provided the first time 
that it is mentioned in this document.
     Attention: The PDR, where you may examine and purchase 
copies of public documents, is currently closed. You may submit your 
request to the PDR via email at [email protected] or call 1-800-397-
4209 between 8:00 a.m. and 4:00 p.m. (EST), Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Richard V. Guzman, Office of Nuclear 
Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001; telephone: 301-415-1030, email: [email protected].

SUPPLEMENTARY INFORMATION: The text of the exemption is attached.

    Dated: November 23, 2020.

    For the Nuclear Regulatory Commission.
Richard V. Guzman,
Senior Project Manager, Plant Licensing Branch I, Division of Operator 
Reactor Licensing, Office of Nuclear Reactor Regulation.

Attachment--Exemption.

Nuclear Regulatory Commission

Docket Nos. 50-003, 50-247, and 50-286; Holtec Decommissioning 
International, LLC Indian Point Nuclear Generating Station, Unit Nos. 
1, 2, and 3; Exemption

I. Background.

    The Indian Point Energy Center (IPEC) consists of three, four-loop 
pressurized-water reactors, Indian Point Nuclear Generating Station, 
Unit Nos. 1, 2, and 3 (IP1, IP2, and IP3, respectively), and an 
independent spent fuel storage installation (ISFSI), located in 
Buchanan, New York, in Westchester County, on the east bank of the 
Hudson River. Operation of IP1 permanently ceased on October 31, 1974 
and all fuel was permanently removed from the IP1 reactor vessel by 
January 1976; operation of IP2 permanently ceased on April 30, 2020 and 
all fuel was permanently removed from the lP2 reactor vessel on May 12, 
2020; and operation of IP3 is scheduled to permanently cease by April 
30, 2021.
    The U.S. Nuclear Regulatory Commission (NRC, the Commission) 
licenses for the IPEC are Provisional Operating License No. DPR-5 for 
IP1, Renewed Facility Operating License Nos. DPR-26 and DPR-64 for IP2 
and IP3, respectively, and the general license for the ISFSI. The 
current licensed owners under these licenses are Entergy Nuclear Indian 
Point 2, LLC and Entergy Nuclear Indian Point 3, LLC and the current 
licensed operator under these licenses is Entergy Nuclear Operations, 
Inc. (ENOI). The IPEC licenses are subject to the rules, regulations, 
and orders of the NRC.
    By application dated November 21, 2019 (Agencywide Documents Access 
and Management System (ADAMS) Accession No. ML19326B953), the current 
licensed owners and operator and Holtec International (Holtec) and 
Holtec Decommissioning International, LLC (HDI) requested that the NRC 
consent to the transfer of the ownership of the IPEC licenses to Holtec 
subsidiaries Holtec Indian Point 2, LLC and Holtec Indian Point 3, LLC 
and the operating authority under these licenses to Holtec subsidiary 
HDI.
    In support of the license transfer application, by letter dated 
December 19, 2019 (ADAMS Accession No. ML19354A698), HDI provided to 
the NRC a post-shutdown decommissioning activities report (PSDAR) and 
site-specific decommissioning cost estimate (SSCE) for IPEC. These 
documents reflected HDI's proposed use of the DECON decommissioning 
method to complete decommissioning over a period (inclusive of 2021) of 
43 years if the license transfer application is approved and the 
proposed license transfer transaction is consummated. The 
decommissioning of IPEC would begin following the permanent cessation 
of operations of IP3 in 2021 and the majority of license termination 
activities would be completed by 2033 (i.e., releasing for unrestricted 
use the entirety of the site with the exception of the ISFSI). HDI 
would then remove the fuel and Greater than Class C waste from the 
site, decommission the ISFSI, terminate the NRC licenses, and release 
the remainder of the site for unrestricted use by 2063.

II. Request/Action

    In support of the license transfer application, in addition to 
providing a PSDAR and an SSCE, by letter dated February 12, 2020 (ADAMS 
Accession No. ML20043C539), HDI also submitted to the NRC a request for 
exemption from specific requirements of 10 CFR 50.82(a)(8)(i)(A) and 10 
CFR 50.75(h)(1)(iv). The exemption from 10 CFR 50.82(a)(8)(i)(A) and 10 
CFR 50.75(h)(1)(iv) would permit HDI to make withdrawals from the IP1, 
IP2, and IP3 Decommissioning Trust Funds (DTFs) for spent fuel 
management and site restoration activities for IP1, IP2, and IP3, 
respectively, in accordance with HDI's SSCE. The exemption from 10 CFR 
50.75(h)(1)(iv) would also permit HDI to make these withdrawals without 
prior notification to the NRC, similar to withdrawals for 
decommissioning activities made in accordance with 10 CFR 50.82(a)(8). 
The exemption would only apply to HDI if and when the proposed license 
transfer transaction is consummated.
    As part of its exemption request, HDI provided Tables 1, 2, and 3 
for IP1, IP2, and IP3, respectively, showing the annual cash flows for 
each unit's DTF while conducting decommissioning activities under the 
decommissioning method discussed in HDI's PSDAR. Each table contains 
the projected withdrawals from the unit's DTF needed to cover the 
estimated costs at that unit for radiological decommissioning, spent 
fuel management, and site restoration activities in accordance with 
HDI's SSCE. By letter dated March 26, 2020 (ADAMS Accession No. 
ML20086Q904), pursuant to 10 CFR 50.75(f)(2), ENOI reported the 
balances of the IP1, IP2, and IP3 DTFs as of December 31, 2019. The NRC 
staff considered all of this information in its review of the exemption 
request.
    The requirements of 10 CFR 50.82(a)(8)(i)(A) restrict the use of 
DTF withdrawals to expenses related to legitimate decommissioning 
activities consistent with the definition of decommissioning that 
appears in 10 CFR 50.2, ``Definitions.'' The definition of 
``decommission'' in 10 CFR 50.2 is:

To remove a facility or site safely from service and reduce residual 
radioactivity to a level that permits--
    (1) Release of the property for unrestricted use and termination 
of the license; or
    (2) Release of the property under restricted conditions and 
termination of the license.

    This definition does not include activities associated with spent 
fuel management and site restoration activities. The requirements of 10 
CFR 50.75(h)(1)(iv) also restrict the use of DTF disbursements (other 
than for ordinary administrative costs and other incidental expenses of 
the fund in connection with the operation of the fund) to 
decommissioning expenses until final radiological decommissioning is 
completed. Therefore, an exemption from 10 CFR 50.82(a)(8)(i)(A) and 10 
CFR 50.75(h)(1)(iv) is needed to allow HDI to use funds from the IPEC 
DTFs for spent fuel management and site restoration activities at IPEC. 
The requirements of 10 CFR 50.75(h)(1)(iv) further provide that, except 
for withdrawals being made under 10 CFR 50.82(a)(8) or for payments of 
ordinary administrative costs and other incidental expenses of the fund 
in connection with the operation of the fund, no disbursement

[[Page 76115]]

may be made from the DTF without written notice to the NRC at least 30 
working days in advance. Therefore, an exemption from 10 CFR 
50.75(h)(1)(iv) is also needed to allow HDI to use funds from the IPEC 
DTFs for spent fuel management and site restoration activities at IPEC 
without prior NRC notification.

III. Discussion.

    Pursuant to 10 CFR 50.12, the Commission may, upon application by 
any interested person or upon its own initiative, grant exemptions from 
the requirements of 10 CFR part 50 (1) when the exemptions are 
authorized by law, will not present an undue risk to the public health 
and safety, and are consistent with the common defense and security; 
and (2) when any of the special circumstances listed in 10 CFR 
50.12(a)(2) are present. These special circumstances include, among 
other things:

    (ii) Application of the regulation in the particular 
circumstances would not serve the underlying purpose of the rule or 
is not necessary to achieve the underlying purpose of the rule; and
    (iii) Compliance would result in undue hardship or other costs 
that are significantly in excess of those contemplated when the 
regulation was adopted, or that are significantly in excess of those 
incurred by others similarly situated.

A. Authorized by Law

    The requested exemption from 10 CFR 50.82(a)(8)(i)(A) and 10 CFR 
50.75(h)(1)(iv) would allow HDI to use a portion of the funds from the 
IPEC DTFs for spent fuel management and site restoration activities at 
IPEC without prior notice to the NRC in the same manner that 
withdrawals are made under 10 CFR 50.82(a)(8) for decommissioning 
activities. As stated above, 10 CFR 50.12 allows the NRC to grant 
exemptions from the requirements of 10 CFR part 50 when the exemptions 
are authorized by law. The NRC staff has determined, as explained 
below, that granting HDI's proposed exemption will not result in a 
violation of the Atomic Energy Act of 1954, as amended, or the 
Commission's regulations. Therefore, the exemption is authorized by 
law.

B. No Undue Risk to Public Health and Safety

    The underlying purpose of 10 CFR 50.82(a)(8)(i)(A) and 10 CFR 
50.75(h)(1)(iv) is to provide reasonable assurance that adequate funds 
will be available for the radiological decommissioning of power 
reactors. Based on HDI's SSCE and the cash flow analyses, use of a 
portion of the IPEC DTFs for spent fuel management and site restoration 
activities at IPEC will not adversely impact HDI's ability to complete 
radiological decommissioning within 60 years and terminate the IPEC 
licenses. Furthermore, an exemption from 10 CFR 50.75(h)(1)(iv) to 
allow HDI to make withdrawals from the DTFs for spent fuel management 
and site restoration activities without prior written notification to 
the NRC will not affect the sufficiency of funds in the DTFs to 
accomplish radiological decommissioning, because such withdrawals are 
still constrained by the provisions of 10 CFR 50.82(a)(8)(i)(B)-(C) and 
are reviewable under the annual reporting requirements of 10 CFR 
50.82(a)(8)(v)-(vii).
    Based on the above, there are no new accident precursors created by 
using the DTFs in the proposed manner. Thus, the probability of 
postulated accidents is not increased. Also, based on the above, the 
consequences of postulated accidents are not increased. No changes are 
being made in the types or amounts of effluents that may be released 
offsite. There is no significant increase in occupational or public 
radiation exposure. Therefore, the requested exemption will not present 
an undue risk to public health and safety.

C. Consistent With the Common Defense and Security

    The requested exemption would allow HDI to use funds from the IPEC 
DTFs for spent fuel management and site restoration activities at IPEC. 
Spent fuel management under 10 CFR 50.54(bb) is an integral part of the 
planned HDI decommissioning and license termination process and will 
not adversely affect HDI's ability to physically secure the site or 
protect special nuclear material. This change to enable the use of a 
portion of the funds from the DTFs for spent fuel management and site 
restoration activities has no relation to security issues. Therefore, 
the common defense and security is not impacted by the requested 
exemption.

D. Special Circumstances

    Special circumstances, in accordance with 10 CFR 50.12(a)(2)(ii), 
are present whenever application of the regulation in the particular 
circumstances is not necessary to achieve the underlying purpose of the 
regulation.
    The underlying purpose of 10 CFR 50.82(a)(8)(i)(A) and 10 CFR 
50.75(h)(1)(iv), which restrict withdrawals from DTFs to expenses for 
radiological decommissioning activities, is to provide reasonable 
assurance that adequate funds will be available for radiological 
decommissioning of power reactors and license termination. Strict 
application of these requirements would prohibit the withdrawal of 
funds from the IPEC DTFs for activities other than radiological 
decommissioning activities at IPEC, such as for spent fuel management 
and site restoration activities, until final radiological 
decommissioning at IPEC has been completed.
    The DTFs for IP1, IP2, and IP3 contained $555.74 million, $701.30 
million, and $929.97 million, respectively, as of December 31, 2019. 
HDI's analyses project the total radiological decommissioning costs at 
IP1, IP2, and IP3 to be approximately $485,015,000, $469,456,000, and 
$583,168,000, respectively (in 2019 dollars), including the costs for 
decommissioning the ISFSI. As required by 10 CFR 50.54(bb), HDI 
estimated the costs associated with spent fuel management at IP1, IP2, 
and IP3 to be $72,381,000, $188,278,000, and $371,370,000, respectively 
(in 2019 dollars).
    The NRC staff performed independent cash flow analyses of the IPEC 
DTFs over the proposed 43-year DECON period (assuming an annual real 
rate of return of 2 percent, as allowed by 10 CFR 50.75(e)(1)(ii)) and 
determined the projected earnings of the DTFs. The NRC staff confirmed 
that the current funds in the DTFs and projected earnings provide 
reasonable assurance of adequate funding to complete all NRC-required 
radiological decommissioning activities at IPEC and also to pay for 
spent fuel management and site restoration activities. Therefore, the 
NRC staff finds that HDI has provided reasonable assurance that 
adequate funds will be available for the radiological decommissioning 
of IPEC, even with the disbursement of funds from the DTFs for spent 
fuel management and site restoration activities. Consequently, the NRC 
staff concludes that application of the requirements of 10 CFR 
50.82(a)(8)(i)(A) and 10 CFR 50.75(h)(1)(iv), that funds from the DTFs 
only be used for radiological decommissioning activities and not for 
spent fuel management and site restoration activities, is not necessary 
to achieve the underlying purpose of the rule. Thus, special 
circumstances are present supporting approval of the exemption request.
    In its submittal, HDI also requested exemption from the requirement 
of 10 CFR 50.75(h)(1)(iv) concerning prior written notification to the 
NRC of withdrawals from the DTFs to fund activities other than 
radiological decommissioning. The underlying

[[Page 76116]]

purpose of notifying the NRC prior to withdrawal of funds from the DTFs 
is to provide opportunity for NRC intervention, when deemed necessary, 
if the withdrawals are for expenses other than those authorized by 10 
CFR 50.75(h)(1)(iv) and 10 CFR 50.82(a)(8) that could result in there 
being insufficient funds in the DTFs to accomplish radiological 
decommissioning.
    By granting the exemption to 10 CFR 50.75(h)(1)(iv) and 10 CFR 
50.82(a)(8)(i)(A), the NRC staff considers that withdrawals consistent 
with HDI's submittal dated February 12, 2020, are authorized. As stated 
previously, the NRC staff determined that there are sufficient funds in 
the DTFs to complete radiological decommissioning activities, as well 
as to conduct spent fuel management and site restoration activities, 
consistent with HDI's PSDAR, SSCE, and February 12, 2020, exemption 
request. Pursuant to the requirements in 10 CFR 50.82(a)(8)(v) and 
(vii), licensees are required to monitor and annually report to the NRC 
the status of the DTFs and the licensee's funding for spent fuel 
management. These reports provide the NRC staff with awareness of, and 
the ability to take action on, any actual or potential funding 
deficiencies. Additionally, 10 CFR 50.82(a)(8)(vi) requires that the 
annual financial assurance status report must include additional 
financial assurance to cover the estimated cost of completion if the 
sum of the balance of any remaining decommissioning funds, plus 
earnings on such funds calculated at not greater than a 2-percent real 
rate of return, together with the amount provided by other financial 
assurance methods being relied upon, does not cover the estimated cost 
to complete the decommissioning. The requested exemption would not 
allow the withdrawal of funds from the DTFs for any other purpose that 
is not currently authorized in the regulations without prior 
notification to the NRC. Therefore, the granting of the exemption to 10 
CFR 50.75(h)(1)(iv) to allow HDI to make withdrawals from the DTFs to 
cover authorized expenses for spent fuel management and site 
restoration activities without prior written notification to the NRC 
will still meet the underlying purpose of the regulation.
    Special circumstances, in accordance with 10 CFR 50.12(a)(2)(iii), 
are present whenever compliance would result in undue hardship or other 
costs that are significantly in excess of those contemplated when the 
regulation was adopted, or that are significantly in excess of those 
incurred by others similarly situated. HDI states that the DTFs contain 
funds in excess of the estimated costs of radiological decommissioning 
and that these excess funds are needed for spent fuel management and 
site restoration activities. The NRC does not preclude the use of funds 
from DTFs in excess of those needed for radiological decommissioning 
for other purposes, such as spent fuel management or site restoration 
activities.
    The NRC has stated that funding for spent fuel management and site 
restoration activities may be commingled in DTFs, provided that the 
licensee is able to identify and account for the radiological 
decommissioning funds separately from the funds set aside for spent 
fuel management and site restoration activities (see NRC Regulatory 
Issue Summary 2001-07, Rev. 1, ``10 CFR 50.75 Reporting and 
Recordkeeping for Decommissioning Planning,'' dated January 8, 2009 
(ADAMS Accession No. ML083440158), and Regulatory Guide 1.184, Revision 
1, ``Decommissioning of Nuclear Power Reactors,'' dated October 2013 
(ADAMS Accession No. ML13144A840)). Preventing access to those excess 
funds in DTFs because spent fuel management and site restoration 
activities are not associated with radiological decommissioning would 
create an unnecessary financial burden without any corresponding safety 
benefit. The adequacy of the IPEC DTFs to cover the cost of activities 
associated with spent fuel management and site restoration, in addition 
to radiological decommissioning, is supported by HDI's SSCE. If HDI 
cannot use its DTFs for spent fuel management and site restoration 
activities, it would need to obtain additional funding that would not 
be recoverable from the DTFs, or it would have to modify its 
decommissioning approach and methods. The NRC staff concludes that 
either outcome would impose an unnecessary and undue burden 
significantly in excess of that contemplated when 10 CFR 
50.82(a)(8)(i)(A) and 10 CFR 50.75(h)(1)(iv) were adopted.
    The underlying purposes of 10 CFR 50.82(a)(8)(i)(A) and 10 CFR 
50.75(h)(1)(iv) would be achieved by allowing HDI to use a portion of 
the IPEC DTFs for spent fuel management and site restoration activities 
without prior NRC notification, and compliance with the regulations 
would result in an undue hardship or other costs that are significantly 
in excess of those contemplated when the regulations were adopted. 
Thus, the special circumstances required by 10 CFR 50.12(a)(2)(ii) and 
10 CFR 50.12(a)(2)(iii) exist and support the approval of the requested 
exemption.

E. Environmental Considerations

    In accordance with 10 CFR 51.31(a), the Commission has determined 
that granting the exemption will not have a significant effect on the 
quality of the human environment (see Environmental Assessment and 
Finding of No Significant Impact published in the Federal Register on 
November 10, 2020 (85 FR 71664)).

IV. Conclusions.

    In consideration of the above, the NRC staff finds that the 
proposed exemption confirms the adequacy of funding in the IPEC DTFs, 
considering growth, to complete radiological decommissioning of the 
site and to terminate the licenses and also to cover estimated spent 
fuel management and site restoration activities.
    Accordingly, the Commission has determined that, pursuant to 10 CFR 
50.12(a), the exemption is authorized by law, will not present an undue 
risk to public health and safety, and is consistent with the common 
defense and security. Also, special circumstances are present. 
Therefore, the Commission hereby grants HDI an exemption from the 
requirements of 10 CFR 50.82(a)(8)(i)(A) and 10 CFR 50.75(h)(1)(iv) to 
allow the use of a portion of the funds from the IPEC DTFs for spent 
fuel management and site restoration activities in accordance with 
HDI's PSDAR and SSCE, dated December 19, 2019. Additionally, the 
Commission hereby grants HDI an exemption from the requirement of 10 
CFR 50.75(h)(1)(iv) to allow such withdrawals without prior NRC 
notification.
    This exemption is effective upon issuance.

    Dated: November 23, 2020.

    For the Nuclear Regulatory Commission.
Craig G. Erlanger,
Director, Division of Operating Reactor Licensing, Office of Nuclear 
Reactor Regulation.
[FR Doc. 2020-26189 Filed 11-25-20; 8:45 am]
BILLING CODE 7590-01-P