[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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