[Federal Register Volume 87, Number 24 (Friday, February 4, 2022)]
[Proposed Rules]
[Pages 6434-6436]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-01685]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 87, No. 24 / Friday, February 4, 2022 / 
Proposed Rules  

[[Page 6434]]



NUCLEAR REGULATORY COMMISSION

10 CFR Part 50

[Docket No. PRM-50-119; NRC-2019-0083]


Access to the Decommissioning Trust Fund for the Disposal of 
Large Components

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 February 22, 2019, submitted by Gerard 
P. Van Noordennen on behalf of EnergySolutions, LLC (the petitioner). 
The petition was docketed by the NRC on March 20, 2019, and was 
assigned Docket No. PRM-50-119. The petition requested that the NRC 
revise its regulations to allow access to the decommissioning trust 
fund for the removal of major radioactive components before the 
permanent cessation of operations and revise the definition of 
Decommissioning. The NRC is denying the petition because the petitioner 
does not raise a significant safety or security concern, and this 
subject area is adequately covered by existing regulations. The NRC's 
current regulations and oversight activities continue to provide for 
the reasonable assurance of adequate protection of public health and 
safety.

DATES: The docket for PRM-50-119 is closed on February 4, 2022.

ADDRESSES: Please refer to Docket ID NRC-2019-0083 when contacting the 
NRC about the availability of information for this action. You may 
obtain publicly-available information related to this action by any of 
the following methods:
     Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2019-0083. Address 
questions about NRC Docket IDs to Dawn Forder; telephone: 301-415-3407; 
email: [email protected]. For technical questions, contact the 
individuals listed in the FOR FURTHER INFORMATION CONTACT section of 
this document.
     NRC's Agencywide Documents Access and Management System 
(ADAMS): You may obtain publicly available documents online in the 
ADAMS Public Documents collection at 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]. The ADAMS accession number for each 
document referenced in this document (if that document is available in 
ADAMS) is provided the first time that it is mentioned in the 
SUPPLEMENTARY INFORMATION section.
     NRC's PDR: You may examine and purchase copies of public 
documents, by appointment, at the NRC's PDR, Room P1 B35, One White 
Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. To make 
an appointment to visit the PDR, please send an email to 
[email protected] or call 1-800-397-4209 or 301-415-4737, between 
8:00 a.m. and 4:00 p.m. (ET), Monday through Friday, except Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Solomon Sahle, telephone: 301-415-
3781; email: [email protected], or Shawn Harwell, telephone: 301-
415-1309; email: [email protected]. Both are staff of the Office of 
Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001.

SUPPLEMENTARY INFORMATION:

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 interested person to petition the NRC to issue, 
amend, or rescind any regulation. On February 22, 2019, the NRC 
received a petition for rulemaking (PRM) from Gerard P. Van Noordennen 
on behalf of EnergySolutions, LLC (ADAMS Accession No. ML19079A293). 
The petition requested the NRC revise the definition of Decommissioning 
in Sec.  50.2, ``Definitions,'' and amend Sec.  50.82, ``Termination of 
license,'' to allow access to the decommissioning trust fund to pay for 
the disposal of ``major radioactive components'' before the permanent 
cessation of operations at nuclear power plants. That term is currently 
defined in Sec.  50.2: ``Major radioactive components means, for a 
nuclear power reactor facility, the reactor vessel and internals, steam 
generators, pressurizers, large bore reactor coolant system piping, and 
other large components that are radioactive to a comparable degree.''
    The petition suggested that granting the petition would remove 
unnecessary burden from licensees who store major radioactive 
components on their sites during plant operations because they have 
limited operating funds and cannot use decommissioning funds for the 
disposal of these components.
    The NRC published a notice of docketing and request for comment in 
the Federal Register on June 12, 2019 (84 FR 27209).

II. Public Comments on the Petition

A. Overview of Public Comments

    The public comment period closed on August 26, 2019. The NRC 
received a total of six public comment submissions, with six unique 
comments from the general public and industry. Five commenters 
supported the petition and one commenter opposed the petition.

B. NRC Response to Public Comments

    Comment: One commenter suggested an approach to allow the use of 
excess decommissioning trust funds for disposal of major radioactive 
components. In this approach, the NRC could allow operators to 
reallocate excess decommissioning trust funds for operational expenses 
through a two-step process: (1) Excess funds are identified and 
returned from holder; and (2) operator uses returned funds to manage 
operational expenses, including disposal of large components.
    NRC Response: The process described in the comment is available 
now, upon request by a licensee through the exemption process (Sec.  
50.12, ``Specific exemptions''), which requires a site-specific review 
and approval by the NRC. A projected excess in the decommissioning 
trust fund is one factor that the NRC would consider in reviewing an 
exemption request. Other potential factors include the size of the

[[Page 6435]]

excess compared to the site-specific cost estimate (SSCE), whether the 
expense is included in a SSCE, evidence that funds have been collected 
or set aside for the activity in a comingled decommissioning trust 
fund, and availability of rate collection as a means to resolve a 
shortfall in radiological decommissioning funding. Any decision on an 
exemption request to use decommissioning funds to dispose of major 
radioactive components during operation would be based on a totality of 
the information in the request and any other information of which the 
NRC is aware. It should be noted that cost estimates for 
decommissioning are less accurate the further out in time the plant is 
from decommissioning. Thus, a release of funds without NRC approval 
whenever an excess is identified by the licensee would diminish 
decommissioning funding assurance, even if the excess is identified by 
comparison to a SSCE. The NRC has previously addressed this issue in 
the denial of PRM-50-88 (73 FR 62220; October 20, 2008).
    Comment: One commenter stated that operators are making a business 
decision to store large components during a plant's operational period 
and dispose of the major radioactive components with decommissioning 
trust funds once the decommissioning period begins, despite storage and 
monitoring costs. The commenter states that this results in a potential 
for loss of control of radiological material, if improperly stored/
monitored.
    NRC Response: Existing NRC regulations ensure adequate control of 
radiological material, including major radioactive components that have 
been removed from service. Proper storage and monitoring of 
radiological material is addressed through the NRC's onsite inspection 
procedures.
    Comment: One commenter stated that the NRC should consider early 
use of decommissioning trust funds by licensees if the disposal costs 
are specifically included in the cost estimate. The commenter stated 
that this could be achieved either by the licensee preparing a SSCE 
that included the items for which excess funds are to be used, or by 
the NRC revising the generic formula for trust fund calculation to 
require additional funds to account for these waste volumes, 
effectively increasing the estimated waste volume factor of the 
formula. The commenter noted that a change to the generic formula in 
this manner is problematic because some basis would be required to 
account for later reducing the waste volume based on operational 
disposal activities, which may be an ongoing or repeated activity 
during the operational life of a facility.
    NRC Response: The NRC agrees with the commenter that a revision to 
the Sec.  50.75 Table of Minimum Amounts would be problematic. The 
formulas provided in this table are generic and designed to provide a 
reasonable estimate of radiological decommissioning costs for the 
facility. Revising the table to account for the disposal of major 
radioactive components prior to decommissioning is difficult due to 
several factors, including site-specific variations in the generation 
and disposal of these components. As such, the Table of Minimum Amounts 
has not been updated for over 30 years. However, the NRC is considering 
updates to the generic decommissioning funding formula to make it more 
reflective of current cost considerations as part of the proposed rule, 
``Regulatory Improvements for Production and Utilization Facilities 
Transitioning to Decommissioning'' (RIN 3150-AJ59), and will seek 
public comment on the matter. Nonetheless, currently licensees can use 
the existing formula, or an SSCE, as part of a demonstration that 
excess funds exist in the decommissioning trust fund to support either 
an exemption request or for other purposes, such as the reallocation of 
other funds. Projected excess funds would be one factor the NRC would 
consider when reviewing an exemption request. The staff notes the 
determination of excess funds relies on long-term projections that may 
prove inaccurate because unpredictable changes in economic conditions 
could result in future shortfalls in the decommissioning trust fund. 
Therefore, in reviewing an exemption request, the NRC would consider 
the totality of information provided in the request and any other 
information of which the NRC is aware.
    Comment: One commenter stated that an ``innovative financial 
approach'' that could provide for early removal of large parts would be 
the establishment by the NRC of a process whereby a licensee can have 
access to excess decommissioning trust funds (where ``excess'' should 
consider spent fuel management funds, whether comingled or not) that 
can only be used for specific purposes by the licensee, such as 
management of large component/operational wastes or other items that 
will contribute to the ultimate decommissioning of the facility.
    NRC Response: Under the NRC's existing regulatory framework, 
licensees can request access to excess decommissioning funds on such a 
basis through the exemption process.
    Comment: Three commenters stated that nuclear utilities should have 
the flexibility to use decommissioning trust fundsduring operations to 
facilitate the timely disposal of these components in acost-
effectivemanner to maximize the reduction in disposal cost and 
therefore aid in ensuringthat ample decommissioning trust funds remain 
available when fulldecommissioning takes place.
    NRC Response: If excess decommissioning trust funds are available 
(e.g., as determined by comparing decommissioning fund growth against 
an SSCE), then licensees may use existing procedures to access the 
available funds. If excess funds are not available, then licensees may 
use operating revenues or continue to store the components on site 
until such time as either excess funds are available (and then request 
an exemption to use those funds) or until decommissioning begins.
    Comment: Two commenters stated that the industry and NRC have 
experience with thedecommissioning of nuclear power plants and the time 
has come to modernize the decommissioning regulatory process.
    NRC Response: The NRC is currently pursuing decommissioning 
improvements in a separate rulemaking, ``Regulatory Improvements for 
Production and Utilization Facilities Transitioning to 
Decommissioning'' (82 FR 13778).

III. Reasons for Denial

    The NRC is denying the petition because a licensee may access the 
decommissioning trust fund to pay for the disposal of major radioactive 
components (1) by requesting reimbursement when submitting their 
decommissioning cost estimate per Sec.  50.82 or (2) by requesting an 
exemption under Sec.  50.12 to permit withdrawal from the 
decommissioning trust fund prior to decommissioning. Although the 
Commission has stated that trust fund withdrawals for disposal of major 
radioactive components would be granted only ``in extraordinary 
circumstances'' (73 FR 62222; October 20, 2008), the NRC reviews each 
exemption request based on the merit of the facts provided in the 
request.
    While the petitioner noted that only ``excess'' funds would be used 
from the decommissioning trust fund to pay for the disposal of major 
radioactive components, the NRC notes that whether there is an excess 
would be based on economic projections. Economic projections are less 
accurate the further out in time they attempt to project, and, 
therefore, changes in economic conditions combined with

[[Page 6436]]

withdrawals from the decommissioning trust fund could potentially 
result in future shortfalls in the fund. Nevertheless, a projected 
excess is one factor that the NRC would consider in reviewing an 
exemption request. Other potential factors include: The size of the 
excess compared to the SSCE, whether the expense is included in a SSCE, 
evidence that funds have been collected or set aside for the activity 
in a comingled decommissioning trust fund, and availability of rate 
collection as a means to resolve a shortfall in radiological 
decommissioning funding. Any decision on an exemption request to use 
decommissioning funds to dispose of major radioactive components during 
operation would be based on a totality of the information in the 
request and any other information of which the NRC is aware. These 
circumstances are site-specific and dependent on the unique financial 
status of each licensee.
    The staff believes it would be difficult to develop generally 
applicable requirements to address the use of decommissioning trust 
funds for this purpose and therefore, more efficient to review such 
requests on a case-by-case basis. Therefore, the staff considers an 
exemption to be an adequate means for licensees to request a withdrawal 
from their decommissioning trust fund for the disposal of major 
radioactive components. If the staff sees an increase in exemption 
requests to withdraw decommissioning funds prior to decommissioning, 
then the NRC could reconsider whether addressing the issue through 
rulemaking would reduce the need for exemptions and be more efficient 
for the agency. Such reconsideration will include any experience and 
insights the staff has gained in evaluating exemption requests at that 
time.
    Additionally, some licensees successfully pursued reallocating 
funding streams that would otherwise have been added to their 
decommissioning trust fund by establishing ``sub-accounts'' in their 
decommissioning trust funds. Such sub-accounts are not regulated by the 
NRC and, therefore, can be used at the discretion of the licensee at 
any time during operations or decommissioning. For rate-regulated 
licensees, these sub-accounts are typically funded with Public Utility 
Commission-authorized rate collections once it is established that the 
trust dedicated to radiologically decommissioning is sufficiently 
funded in accordance with NRC regulations. While non-rate-regulated 
(i.e., merchant) licensees do not have access to rate collection, they 
may still fund such sub-accounts through alternate means or request a 
reallocation of funds across their decommissioning trust fund accounts 
using the 10 CFR 50.12 exemption process. The NRC is denying the 
petition because it does not raise a significant safety or security 
concern and the requested amendments are not necessary to enable 
licensees to access excess decommissioning funding prior to 
decommissioning for the purpose of disposal of major radioactive 
components under existing regulations in 10 CFR part 50.

IV. Conclusion

    For the reasons cited in this document, the NRC is denying PRM-50-
119. The NRC reaffirms that its existing regulations continue to 
provide reasonable assurance of adequate protection of public health 
and safety.

    Dated: January 24, 2022.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2022-01685 Filed 2-3-22; 8:45 am]
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