[Federal Register Volume 89, Number 250 (Tuesday, December 31, 2024)]
[Notices]
[Pages 107171-107177]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-31369]
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NUCLEAR REGULATORY COMMISSION
[Docket Nos. 50-354, 50-272, 50-311, 50-277, 50-278, 72-48, and 72-29;
NRC-2024-0206]
PSEG Nuclear, LLC; Hope Creek Generating Station, Salem
Generating Station, Units 1 and 2, and Peach Bottom Atomic Power
Station, Units 2 and 3; Exemption
AGENCY: Nuclear Regulatory Commission.
ACTION: Notice; issuance.
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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is issuing
exemptions in response to a May 28, 2024, request from PSEG Nuclear,
LLC, for Hope Creek Generating Station, Salem Generating Station, Units
1 and 2, and Peach Bottom Atomic Power Station, Units 2 and 3. The
exemptions allow the licensee to periodically transfer earnings from
funds dedicated for radiological decommissioning activities in its
nuclear decommissioning trust (NDT) into separately maintained
subaccounts within the NDT for certain activities that do not fall
within the definition of ``decommission'' in NRC regulations without
prior NRC notification.
DATES: The exemption was issued on December 23, 2024.
ADDRESSES: Please refer to Docket ID NRC-2024-0206 when contacting the
NRC about the availability of information regarding this document. You
may obtain publicly available information related to this document
using any of the following methods:
Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2024-0206. Address
questions about Docket IDs in Regulations.gov to Stacy Schumann;
telephone: 301-415-0624; 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, at 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.
NRC's PDR: The PDR, where you may examine and order copies
of publicly available documents, is open by appointment. 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
a.m. and 4 p.m. eastern
[[Page 107172]]
time (ET), Monday through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Audrey Klett, Office of Nuclear
Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC
20555-0001; telephone: 301-415-0489; email: [email protected].
SUPPLEMENTARY INFORMATION: The text of the exemption is attached.
Dated: December 23, 2024.
For the Nuclear Regulatory Commission.
Audrey L. Klett,
Senior Project Manager, Licensing Projects Branch 1, Division of
Operating Reactor Licensing, Office of Nuclear Reactor Regulation.
Attached--Exemption
NUCLEAR REGULATORY COMMISSION
Docket Nos. 50-354, 50-272, 50-311, 50-277, 50-278, 72-48, 72-29
Hope Creek Generating Station, Salem Generating Station, Units 1 and 2,
and Peach Bottom Atomic Power Station, Units 2 and 3 Exemptions
I. Background
PSEG Nuclear, LLC (PSEG, the licensee) is the holder of renewed
facility operating license NPF-57 for Hope Creek Generating Station
(Hope Creek). Hope Creek is a single unit boiling-water reactor
licensed under Title 10 of the Code of Federal Regulations (10 CFR)
Part 50. PSEG in conjunction with Constellation Energy Generation, LLC
(Constellation) hold renewed facility operating licenses DPR-70 and
DPR-75 for Salem Generating Station, Units 1 and 2 (Salem),
respectively. PSEG holds a 57.41 percent ownership share in Salem and
is the licensed operator. The exemption request, therefore, is only
appliable to PSEG's portion of Salem's decommissioning trust fund.
Salem is a dual unit pressurized-water reactor licensed under 10 CFR
part 50. Hope Creek and Salem are co-located and share the onsite
independent spent fuel storage installation (ISFSI), which has a
general license under 10 CFR part 72. PSEG in conjunction with
Constellation hold subsequent renewed facility operating licenses DPR-
44 and DPR-56 for Peach Bottom Atomic Power Station, Units 2 and 3
(Peach Bottom). PSEG holds a 50 percent ownership share in Peach
Bottom, and Constellation is the licensed operator. The exemption
request, therefore, is only applicable to PSEG's portion of Peach
Bottom's decommissioning trust fund. Peach Bottom is a dual unit
boiling-water reactor licensed under 10 CFR part 50. There is an ISFSI
onsite at Peach Bottom, which has a general license under 10 CFR part
72.
II. Request/Action
By letter dated May 28, 2024 (Agencywide Documents Access and
Management System (ADAMS) Accession No. ML24150A002), and pursuant to
10 CFR 50.12, ``Specific exemptions,'' the licensee submitted to the
NRC a request for exemptions from 10 CFR 50.82(a)(8)(i)(A) and 10 CFR
50.75(h)(1)(iv) for Hope Creek, Salem, and Peach Bottom (collectively,
the PSEG facilities). The licensee has requested these exemptions to
allow the licensee to periodically transfer earnings from funds
dedicated for radiological decommissioning activities consistent with
the definition of ``decommission'' in 10 CFR 50.2 in its nuclear
decommissioning trust (NDT) into separately maintained ``non-50.75''
subaccounts within the NDT without prior NRC notification. The ``non-
50.75'' subaccounts would be used to separately account for funds to
pay for ``decommissioning costs,'' as defined by the U.S. Treasury
Department,\1\ for each facility. These costs include costs for
radiological and non-radiological activities that do not fall within
the NRC's definition of ``decommission'' in 10 CFR 50.2, including
major radioactive component (MRC) disposal during operations, site
restoration activities, and certain spent fuel management activities.
The licensee states that these periodic transfers of earnings may only
occur if certain conditions, as discussed below in section III, have
been met. The licensee also indicated that because the request relies
on earnings during operations, the exemptions would terminate for a
facility once the certifications of permanents cessation of operations
and permanent removal of fuel from the applicable reactor vessel have
been submitted to the NRC.
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\1\ See Title 26 of the CFR (26 CFR), Section 1.468A-1(b)(6), of
the Treasury Department regulations implementing Section 468A of the
Internal Revenue Code.
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The licensee previously notified the NRC in 2023 of a proposed
amendment to the PSEG Master Decommissioning Trust Agreement that would
exclude funds in a ``non-50.75'' subaccount from being subject to NRC
requirements and clarify that the funds in these subaccounts will not
be relied upon for providing decommissioning financial assurance
required by 10 CFR 50.75 (ML23252A001). The licensee indicated that the
funds in the ``non-50.75'' subaccounts were intended to pay for
decommissioning costs as defined by the U.S. Treasury Department in 26
CFR 1.468A-1(b)(6). The NRC objected to this notification from PSEG
indicating that while the subaccounts may be established and
withdrawals made, the earnings from funds originally dedicated to
radiological decommissioning as defined in 10 CFR 50.2 are restricted
by 10 CFR 50.82(a)(8)(i)(A) and 10 CFR 50.75(h)(1)(iv) to being
withdrawn only for radiological decommissioning expenses as defined in
10 CFR 50.2 (ML23270C007). Further, the NRC staff noted that PSEG would
need to request and have approved an exemption from 10 CFR
50.82(a)(8)(i)(A) and 10 CFR 50.75(h)(1)(iv) in order for PSEG to
periodically transfer future earnings from the NDT to specific
subaccounts within the NDT for decommissioning costs that do not fall
under the definition in 10 CFR 50.2 and amend the Master
Decommissioning Trust Agreement.
The Commission's regulation 10 CFR 50.82(a)(8)(i)(A) restricts
withdrawals from the decommissioning trust fund (DTF) to expenses for
legitimate decommissioning activities consistent with the definition 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.'' The regulation at 10 CFR 50.75(h)(1)(iv) also
restricts 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. These
regulations would prohibit a licensee from transferring earnings from
funds dedicated to radiological decommissioning as defined in 10 CFR
50.2 to any ``non-50.75'' subaccounts within the DTF for activities
that do not fall within the definition of ``decommission'' in 10 CFR
50.2. Therefore, exemptions from 10 CFR 50.82(a)(8)(i)(A) and 10 CFR
50.75(h)(1)(iv) are needed to allow PSEG to transfer earnings from the
NDT to ``non-50.75'' subaccounts within the NDT for activities such as
MRC disposal during operations, spent fuel management, and site
restoration.
The requirements in 10 CFR 50.75(h)(1)(iv) further provide that,
except for withdrawals being made
[[Page 107173]]
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 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 the licensee to make withdrawals from the ``non-50.75''
subaccounts within the NDT without prior notification to the NRC.
PSEG also notes that its exemption request is informed by draft NRC
Interim Staff Guidance (ISG) on the use of decommissioning trust funds
during operations, ``Draft Interim Staff Guidance on the Use of the
Decommissioning Trust Fund During Operations for Major Radioactive
Component Disposal,'' dated June 21, 2023 (ML23150A051). After
consideration of public comments, the NRC staff issued REFS-ISG-2024-
01, ``Interim Staff Guidance on the Use of the Decommissioning Trust
Fund During Operations for Major Radioactive Component Disposal,''
dated August 5, 2024 (ML24114A263), which provides clarifying guidance
on the NRC's position on the use of decommissioning trust funds during
operations for MRC disposal. The ISG states, in part, as follows:
A licensee may request an exemption in accordance with 10 CFR
50.12, to permit withdrawal of funds from the DTF for the removal
and disposal of MRCs, prior to the cessation of operations and
initiation of decommissioning. The withdrawal of funds from the DTF
may only be used to pay for the offsite disposal of MRCs when the
NRC has determined the total DTF contains funds in excess of cost
estimates to complete all required radiological decommissioning. In
addition, licensees may use economic projections for future years in
calculating the amount of excess funds in the DTF. However,
significant changes in the economic conditions of a licensee,
combined with withdrawals from the trust fund, have the potential to
result in future shortfalls in the DTF. The Commission has stated
trust fund withdrawals for the disposal of MRCs would be granted
only ``in extraordinary circumstances'' (73 FR 62221, 62222, and
62224; October 20, 2008). For these reasons, the staff evaluates
each exemption request for a DTF withdrawal based on a totality of
facts in determining whether to grant or deny a request. REFS-ISG-
2024-01 at 3-4 (internal citations omitted).
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 when (1) 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) any of the special circumstances listed in 10 CFR 50.12(a)(2)
are present. These special circumstances include, among other things,
(1) 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 (2) 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. The Exemptions Are Authorized by Law
The requested exemptions from 10 CFR 50.82(a)(8)(i)(A) and 10 CFR
50.75(h)(1)(iv) would allow the licensee to periodically transfer
earnings from funds in the NDT dedicated for radiological
decommissioning, as defined in 50.2, to ``non-50.75'' subaccounts
within the NDT dedicated for decommissioning activities not restricted
to radiological decommissioning without prior notice to the NRC for the
PSEG facilities. The ``non-50.75'' subaccounts would be used to
separately account for funds to pay for ``decommissioning costs,'' as
defined by the U.S. Treasury Department in 26 CFR 1.468A-1(b)(6), for
each facility. These costs include costs for radiological and non-
radiological activities that do not fall within the definition of
``decommission'' in 10 CFR 50.2, including MRC disposal during
operations, site restoration activities, and certain spent fuel
management activities. These periodic transfers of earnings may only
occur if certain conditions, as discussed below, have been met.
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 that, as explained in
section D below, there would be reasonable assurance of adequate
funding for radiological decommissioning of the PSEG facilities because
the licensee's periodic transfer of the decommissioning trust fund
earnings from the NDT into ``non-50.75'' subaccounts within the NDT for
future non-radiological decommissioning activities including MRC
disposal during operations, site restoration, and spent fuel management
activities, would not negatively impact the licensee's ability to
complete radiological decommissioning within 60 years of permanent
cessation of operations or the licensee's ability to terminate licenses
for the PSEG facilities. Accordingly, granting the licensee's proposed
exemptions will not result in a violation of the Atomic Energy Act of
1954, as amended, or the Commission's regulations. Therefore, issuance
of the exemptions is authorized by law.
B. The Exemptions Present no Undue Risk to Public Health and Safety
As explained in further detail in section D below, based on the NRC
staff's review of PSEG's exemption request and the site-specific
decommissioning cost estimates (SSDCEs) for Hope Creek, Salem, and
Peach Bottom, and the associated cash flow analyses, as confirmed by
NRC staff, there would be reasonable assurance of adequate funding for
radiological decommissioning of the PSEG facilities because the
periodic transfer of some of the excess earnings from NDT funds
dedicated to radiological decommissioning into ``non-50.75''
subaccounts, as well as the subsequent use of the funds within the
subaccounts, will not adversely affect the licensee's ability to
complete radiological decommissioning within 60 years of permanent
cessation of operations or the licensee's ability to terminate licenses
at Hope Creek, Salem, and Peach Bottom. Furthermore, an exemption from
10 CFR 50.75(h)(1)(iv) to allow the licensee to transfer earnings to
the subaccounts dedicated to non-radiological decommissioning
activities without prior written notification to the NRC will not
affect the sufficiency of funds in the NDT to accomplish radiological
decommissioning because such transfers are constrained by conditions
set forth in the exemption request and further discussed below in
section D and are reviewable under the biennial reporting requirements
of 10 CFR 50.75(f)(1). Therefore, the requested exemptions will not
present an undue risk to public health and safety if granted.
In addition, granting the requested exemptions will not alter the
operation of any plant equipment or systems and, therefore, does not
present an undue risk to public health and safety. The proposed
exemptions do not introduce any new industrial, radiological, or
chemical hazards that would present a health and safety risk nor would
granting the exemptions result in modifying or removing design or
operational controls or safeguards that are intended to mitigate onsite
hazards. This exemption does not diminish the effectiveness of other
regulations that
[[Page 107174]]
ensure available funding for decommissioning, including 10 CFR
50.82(a)(6), which prohibits licensees from performing any
decommissioning activities that could foreclose release of the site for
possible unrestricted use, result in significant environmental impacts
not previously reviewed, or result in there no longer being reasonable
assurance that adequate funds will be available for decommissioning;
therefore, the requested exemptions will not present an undue risk to
the public health and safety.
C. The Exemptions Are Consistent With the Common Defense and Security
The requested exemptions would allow the licensee to transfer
earnings from funds dedicated to radiological decommissioning of the
PSEG facilities to subaccounts dedicated to non-radiological
decommissioning activities. The proposed exemptions, including the use
of these funds without prior NRC notification, would not alter the
design, function, or operation of any structures or plant equipment
that is necessary to maintain the safe and secure status of the plant
and would not adversely affect the licensee's ability to physically
secure its sites or protect special nuclear material. Furthermore, this
change to enable the use of a portion of the NDT funds for non-
radiological decommissioning activities has no relation to physical
security issues. Therefore, the common defense and security is not
impacted by the requested exemptions.
D. Special Circumstances
The regulation under 10 CFR 50.12(a)(2) states, in part, that
``[t]he Commission will not consider granting an exemption unless
special circumstances are present,'' and identifies, in 10 CFR
50.12(a)(2)(i)-(iv), when special circumstances are present. In
accordance with 10 CFR 50.12(a)(2)(ii), special circumstances are
present whenever 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.
The underlying purpose of 10 CFR 50.82(a)(8)(i)(A) and 10 CFR
50.75(h)(1)(iv) is to ensure that there is reasonable assurance that
adequate funds will be available for radiological decommissioning of
power reactors within 60 years of permanent cessation of operations.
Strict application of 10 CFR 50.82(a)(8)(i)(A) and 10 CFR
50.75(h)(1)(iv) would prohibit the transfer and subsequent use of
earnings from the funds dedicated to radiological decommissioning as
defined by the NRC in 10 CFR 50.2 in the NDT into ``non-50.75''
subaccounts within the NDT dedicated to ``decommissioning'' activities,
as defined by the U.S. Department of Treasury (including the disposal
of MRCs during operations, spent fuel management activities, and site
restoration), and would require prior NRC notification of any
withdrawals or transfer of such funds.
The NRC staff performed an independent analysis of the financial
information provided in Enclosure 1, as supported by the site-specific
decommissioning cost estimates for Salem, Hope Creek, and Peach Bottom
in Attachments 1-3, respectively, of PSEG's exemption request. PSEG
conservatively chose to use a starting NDT balance for each unit that
excludes any funds accounted for in the ``non-50.75'' subaccounts, as
of December 31, 2023. Accordingly, the NRC staff used the more
conservative projected NDT starting balances provided by PSEG in its
exemption request. The balances in the NDT for each unit as of December
31, 2023, were $495.17 million (M) for Salem, Unit 1, $413.6M for
Salem, Unit 2, $662.95M for Hope Creek, $408.97M for Peach Bottom, Unit
2, and $403.48M for Peach Bottom, Unit 3. NRC staff then escalated
these amounts using a 2 percent real rate of return, as allowed by NRC
regulations, to each unit's respective expected date of permanent
cessation of operations. The resulting NDT balances for each unit were
$603.61M for Salem, Unit 1, $565.79M for Salem, Unit 2, $985.10M for
Hope Creek, $469.78M for Peach Bottom, Unit 2, and $472.73M for Peach
Bottom, Unit 3. Finally, the most recent SSDCEs for each unit used by
NRC staff in its analysis were $518.81M for Salem, Unit 1, $511.62M for
Salem, Unit 2, $1.22B for Hope Creek, $474.28M for Peach Bottom, Unit
2, and $501.61M for Peach Bottom, Unit 3.
Using the projected NDT balance at the time of permanent cessation
of operation (as described above), the estimated annual radiological
costs over SAFSTOR and active decommissioning periods, and a 2 percent
real rate of return on the NDT over the decommissioning period, the NRC
staff performed a beginning-of-year cashflow analysis for each unit to
confirm the information provided in the exemption request. PSEG used a
beginning-of-year analysis in its request, which is a more conservative
approach than what the NRC staff typically uses in its standard review
process (middle-of-year analysis). In its analysis, the NRC staff found
that excess amounts were projected after completion of radiological
decommissioning. The resulting excess funding amounts for each unit
were $1.23B for Salem, Unit 1, $961.86M for Salem, Unit 2, $1.5B for
Hope Creek, $831.7M for Peach Bottom, Unit 2, and $775.78M for Peach
Bottom, Unit 3.
Additionally, PSEG performed sensitivity analyses using the same
SSDCE cashflow analyses described above with the exception of taking
credit for earnings on NDT funds during operations. NRC staff confirmed
that, when considering a 0% real rate of return during operations
(effectively, conservatively assuming that all excess earnings on the
funds are transferred to ``non-50.75'' subaccounts during operations)
and a 2% real rate of return during the decommissioning period for each
unit, significant surplus of funds remain at completion of
decommissioning. Specifically, the resulting excess funding for each
unit were $786.9M for Salem 1, $485.2M for Salem 2, $284.3M for Hope
Creek, $565.9M for Peach Bottom, Unit 2, and $486.1M for Peach Bottom,
Unit 3.
In addition, PSEG has proposed three conditions to the exemption
that would allow periodic transfers to the ``non-50.75'' subaccounts
without prior NRC notification over the operating life of each unit
such that:
Transfers are limited to earnings from funds dedicated for
radiological decommissioning determined by an increase in the amount of
funds accumulated in the NDT since the last decommissioning funding
status (DFS) report submitted under 10 CFR 50.75(f)(1).
At the time of the transfer, the amount of decommissioning
funding assurance (DFA) provided by NDT funds, excluding funds held in
the subaccounts, using the prepayment method in 10 CFR 50.75(e)(1)(i)
must exceed the amount of DFA required by 10 CFR 50.75(b) and (c) for
the associated station by at least $100 million (nominal dollars).
DFS reports submitted under 10 CFR 50.75(f)(1) will
include the amount of funds transferred into the subaccounts since the
last submitted report.
Based on its review, the NRC staff finds that these conditions,
proposed by PSEG: (1) ensure periodic transfers are restricted to
actual earnings from funds dedicated to radiological decommissioning in
the NDT (RD funds) and that no transfers can be made if the value of
the RD funds has decreased since the last submitted DFS report; (2)
ensure that post-transfer NDT funding for each unit is in the amount
[[Page 107175]]
required to ensure at least $100M above NRC DFA requirements in 10 CFR
50.75(b) and (c); and (3) allow the periodic transfers to the ``non-
50.75'' subaccounts to be monitored by the NRC. In addition, the NRC
staff notes that PSEG also requested that the exemptions cease to be
effective on an individual reactor basis once the certifications of
permanent cessation of operations and permanent removal of fuel from
the reactor vessel required under 10 CFR 50.82(a)(1)(i) and (ii) have
been submitted. The NRC staff finds that expiration of the exemption at
this stage would ensure that RD funds and future earnings are
designated for their intended purpose during decommissioning.
Furthermore, in its request, PSEG describes various methods to
augment the NDT in the event of a projected shortfall in funding
dedicated to the radiological decommissioning of the PSEG units. In
accordance with 10 CFR 50.75, if the NDT is not sufficiently funded, as
identified in a DFS report submitted under 10 CFR 50.75(f)(1), then the
shortfall in funding must be rectified by the next DFS report
submission. PSEG identified various additional funding methods, as
described in 10 CFR 50.75(e)(1) and NRC Regulatory Guide 1.159 Revision
2, ``Assuring the Availability of Funds for Decommissioning Nuclear
Reactors'' (ML112160012), that could be used including:
Funds held in ``non-50.75'' subaccounts would be readily
available to be transferred to their associated RD funds account
without prior approval (or subject to disapproval) by a State
regulatory authority, thereby dedicated for radiological
decommissioning as prepaid funds under 10 CFR 50.75(e)(1)(i).
Generation of electric energy from PSEG's operating
nuclear plants provides a source of revenue for cash injections to the
NDT as prepaid funds under 10 CFR 50.75(e)(1)(i).
PSEG's parent company meets Financial Test A.2 in Appendix
A in 10 CFR part 30 for providing a guarantee in an amount that would
be a significant part of the required amount of funding, pursuant to 10
CFR 50.75(e)(1)(iii).
Based on its review, the NRC staff finds that the additional
funding mechanisms identified by PSEG provide assurance that there are
means available to address any shortfalls in radiological
decommissioning funding identified in a DFS report analysis.
In summary, the NRC staff finds that reasonable assurance exists
that adequate funds will be available in PSEG's NDT to complete
radiological decommissioning and terminate the Part 50 licenses for
Salem, Hope Creek, and Peach Bottom because the proposed periodic
transfer of funds to ``non-50.75'' subaccounts will not adversely
impact PSEG's ability to complete radiological decommissioning within
60 years of permanent cessation of operations and terminate the PSEG
licenses based on the following considerations: (1) the NRC staff's
independent review of the licensee's request confirmed large projected
excess amounts remaining in each fund after completion of
decommissioning for each facility; (2) the exemptions would be subject
to three conditions proposed by PSEG described above that place certain
restrictions on the periodic transfer of excess earnings from NDT funds
dedicated to radiological decommissioning to ``non-50.75'' subaccounts
such that the transfers will not adversely affect PSEG's ability to
meet the minimum decommissioning funding assurance requirements
described in 10 CFR 50.75, and the conditions provide a means for the
NRC staff to track the periodic transfers; (3) the exemptions will
cease to be effective on an individual reactor basis once the
certifications for permanent cessation of operations and permanent
removal of fuel from the reactor vessel required under 10 CFR
50.82(a)(1) have been submitted; and (4) the additional funding
mechanisms identified by PSEG ensure there are means available to
address any shortfalls in radiological decommissioning funding
identified in a DFS report analysis. Further, based on a totality of
the circumstances discussed above, the NRC staff finds that PSEG has
demonstrated extraordinary circumstances in support of the proposed
exemptions allowing PSEG to periodically transfer earnings from the NDT
to ``non-50.75'' subaccounts within the NDT for MRC disposal during
operations. Accordingly, the NRC staff finds that the underlying
purposes of 10 CFR 50.82(a)(8)(i)(A) and 10 CFR 50.75(h)(1)(iv) to
ensure that there is reasonable assurance that adequate funds will be
available for radiological decommissioning of power reactors within 60
years of permanent cessation of operations would still be achieved by
allowing the exemptions for PSEG to transfer excess earnings to ``non-
50.75'' subaccounts and use the funding for MRC disposal during
operations, spent fuel management, and site restoration activities at
Salem, Hope Creek, and Peach Bottom.
In its submittal, the PSEG also requested exemption from the
requirement of 10 CFR 50.75(h)(1)(iv) concerning prior written
notification to the NRC for periodic transfers made in accordance with
the exemption request. The underlying purpose of notifying the NRC
prior to the use of funds from the NDT is to provide the 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 DTF to accomplish radiological decommissioning of the facilities.
Pursuant to the requirements in 10 CFR 50.75(f)(1), licensees are
required to monitor and report to the NRC every two years, the status
of the NDT funds for Salem, Hope Creek, and Peach Bottom. These reports
provide the NRC staff with awareness of, and the ability to take action
on, any actual or potential funding deficiencies. As previously
discussed, PSEG proposed that the exemption be subject to certain
conditions, including that the DFS reports submitted under 10 CFR
50.75(f)(1) will include the amount of funds transferred into the
``non-50.75'' subaccounts since the last submitted report. By granting
the exemption to 10 CFR 50.75(h)(1)(iv) and 10 CFR 50.82(a)(8)(i)(A),
subject to this condition, the NRC staff considers that withdrawals
consistent with the licensee's submittal dated May 28, 2024, are
authorized. The NRC staff finds that the additional reporting provided
by PSEG's proposed condition would provide similar information to the
NRC as the prior notification requirement in 10 CFR 50.75(h)(1)(iv) and
is, therefore, not necessary to achieve the underlying purpose of the
regulation.
The requested exemption would not allow the use of funds from the
PSEG NDTs for any purpose that is not currently authorized in the
regulations without prior notification to the NRC. In addition, the
existing reporting requirement in 10 CFR 50.75(f)(1) allows the NRC
staff to continually monitor the status of funding for radiological
decommissioning and provides the opportunity for the NRC to take
appropriate actions, if needed. Additionally, the exemption does not
change the requirement that any shortfall in funding assurance
identified in a DFS report be corrected by the time the next report is
due. Therefore, the granting of the exemption to 10 CFR 50.75(h)(1)(iv)
to allow the PSEG to make periodic transfers, as described in the
exemption request, to subaccounts within the PSEG NDTs to cover
authorized expenses for decommissioning activities other than
radiological decommissioning of Salem,
[[Page 107176]]
Hope Creek, and Peach Bottom without prior written notification to the
NRC will still meet the underlying purpose of the regulation.
For the reasons discussed above, the NRC staff concludes that 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 PSEG to transfer excess
earnings to ``non-50.75'' subaccounts and use the funding for MRC
disposal during operations, spent fuel management, and site restoration
activities at Salem, Hope Creek, and Peach Bottom without prior NRC
notification. Accordingly, the NRC staff finds that the special
circumstance of 10 CFR 50.12(a)(2)(ii) is present in the particular
circumstances of Hope Creek, Salem, and Peach Bottom.
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.
As discussed above, the licensee states, and the NRC staff
confirmed, that the overarching NDT accounts for Hope Creek, Salem, and
Peach Bottom contain funds in excess of the estimated costs of
radiological decommissioning of the facilities, as described in the
individual SSDCEs. PSEG states that if funds accumulated in ``non-
50.75'' subaccounts (i.e., subaccounts dedicated to non-radiological
decommissioning activities) cannot be used for their intended purpose,
then the licensee would need to obtain additional funds to pay for
activities that would not be recoverable from the NDT or modify
operations at the facilities to avoid or delay such costs until final
radiological decommissioning has been completed. In its exemption
request, PSEG describes the history of each facility's dedicated DTF
and states that more funds in the NDT have been dedicated for
radiological decommissioning than originally intended through the rate-
setting process. PSEG states that up until 2003, non-bypassable
charges, authorized by the cognizant regulatory authority, were used as
the funding mechanism for NDTs. These non-bypassable charges, as
described in the request, were collected and intended for use to fund
all aspects of decommissioning a facility, including radiological
decommissioning, spent fuel management, and site restoration.
Commencing in 2004, these units were no longer rate-regulated and,
therefore, were no longer eligible to use the sinking fund method.
Accordingly, the funding mechanism transitioned to the prepaid method.
The NDT fund balances for each unit in 2004 that included funds for the
entire decommissioning process were $212.16M for Salem, Unit 1,
$195.35M for Salem, Unit 2, $324.44M for Hope Creek, $178.11M for Peach
Bottom, Unit 2, and $180.64M for Peach Bottom, Unit 3.
The resulting NDT funds became ``dedicated'' to radiological
decommissioning, as the total amounts were reported to the NRC as such
in DFS reports. Based on its review of the application, the NRC staff
finds that, though precise accounting that could be used to delineate
the funding across the total decommissioning project was not maintained
by the licensee, it appears that some excess funding in the NDT was
initially dedicated to activities other than radiological
decommissioning as defined in 10 CFR 50.2 through the rate-setting
process.
In addition, in its exemption request, PSEG states, in relevant
part, that, ``The current environment in which a permanent federal
repository for spent fuel does not exist requires PSEG to provide long-
term storage for spent fuel in the onsite independent spent fuel
storage installations. Not granting the requested exemptions to PSEG
would impose costs in excess of those incurred by other 10 CFR part 50
licensees that have requested and been granted exemptions from these
regulations for similar purposes.''
PSEG further states that, ``[P]reventing the use of these funds in
the NDT would impose an unnecessary and undue burden in excess of that
contemplated when the regulation was adopted without any corresponding
safety benefit. Therefore, strict compliance with the rule would result
in an undue hardship or other costs that are significantly in excess of
those contemplated when the regulations were adopted, or that are
significantly in excess of those incurred by others similarly situated,
and the special circumstances of 10 CFR 50.12(a)(2)(iii) are present.''
The NRC has stated that funding for spent fuel management (and site
restoration) activities may be commingled in the DTF, 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 the NDT 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 PSEG NDTs to cover the cost of activities
associated with spent fuel management (and site restoration) for each
of its units, in addition to radiological decommissioning, is supported
by PSEG's SSDCEs and associated analyses. If PSEG cannot use its NDTs
for spent fuel management (and site restoration) activities, it would
need to obtain additional funding that would not be recoverable from
the DTF, or it would have to modify its decommissioning approach and
methods. Based on the considerations described above, 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. Accordingly,
the NRC staff finds that the special circumstance of 10 CFR
50.12(a)(2)(iii) is present.
For the reasons discussed above, the NRC staff concludes that 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 PSEG to transfer excess
earnings to ``non-50.75'' subaccounts and use the funding for MRC
disposal during operations, spent fuel management, and site restoration
activities at Salem, Hope Creek, and Peach Bottom 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
The NRC staff considered whether there would be any significant
environmental impacts associated with the proposed exemptions. For the
proposed action, the NRC staff performed an environmental assessment
(EA) pursuant to 10 CFR 51.30. The NRC determined that a finding of no
significant impact (FONSI) is appropriate, and an environmental
[[Page 107177]]
impact statement is not warranted. The EA and the FONSI were published
on December 20,2024 in the Federal Register (89 FR 104236).
IV. Conclusions
Accordingly, the Commission has determined that, pursuant to 10 CFR
50.12(a), 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. Also, special circumstances are present.
Therefore, the Commission hereby grants PSEG exemptions from 10 CFR
50.82(a)(8)(i)(A) and 10 CFR 50.75(h)(1)(iv) to allow the periodic
transfer of earnings from funds dedicated to radiological
decommissioning, consistent with the definition of ``decommission'' in
10 CFR 50.2, of Salem, Hope Creek, and Peach Bottom, to ``non-50.75''
subaccounts dedicated to other ``decommissioning'' activities, as
defined in U.S. Department of Treasury regulations in 26 CFR 1.468A-
1(b)(6), without prior notice to the NRC subject to the following
conditions:
Transfers are limited to earnings from funds dedicated for
radiological decommissioning determined by an increase in the amount of
funds accumulated in the NDT since the last decommissioning funding
status (DFS) report submitted under 10 CFR 50.75(f)(1).
At the time of the transfer, the amount of decommissioning
funding assurance (DFA) provided by NDT funds, excluding funds held in
the subaccounts, using the prepayment method in 10 CFR 50.75(e)(1)(i)
must exceed the amount of DFA required by 10 CFR 50.75(b) and (c) for
the associated station by at least $100 million (nominal dollars).
DFS reports submitted under 10 CFR 50.75(f)(1) will
include the amount of funds transferred into the subaccounts since the
last submitted report.
The exemptions are effective upon issuance. The exemptions will
expire on an individual reactor basis once the NRC has docketed the
licensee's certifications of permanent cessation of operations and
permanent removal of fuel from the reactor vessel required under 10 CFR
50.82(a)(1)(i) and (ii) for the respective reactor unit, consistent
with 10 CFR 50.82(a)(2).
Dated: December 23, 2024.
For the Nuclear Regulatory Commission.
Jamie Pelton,
Acting Director, Division of Operating Reactor Licensing, Office of
Nuclear Reactor Regulation.
[FR Doc. 2024-31369 Filed 12-30-24; 8:45 am]
BILLING CODE 7590-01-P