Decommissioning of Nuclear Power Reactors

NUCLEAR REGULATORY COMMISSION

10 CFR Parts 2, 50, and 51

RIN 3150-AE96

Decommissioning of Nuclear Power Reactors

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

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SUMMARY: The Nuclear Regulatory Commission is amending its regulations

on the decommissioning procedures that lead to the termination of an

operating license for nuclear power reactors. The final amendments

clarify ambiguities in the current rule and codify procedures that

reduce the regulatory burden, provide greater flexibility, and allow

for greater public participation in the decommissioning process. Some

minor amendments pertain to non-power reactors and are for purposes of

clarification and procedural simplification. The Commission believes

that the final amendments will enhance efficiency and uniformity in the

regulatory process of decommissioning nuclear power plants.

EFFECTIVE DATE: August 28, 1996.

FOR FURTHER INFORMATION CONTACT: Dr. Carl Feldman, Office of Nuclear

Regulatory Research, U.S. Nuclear Regulatory Commission, Washington, DC

20555-0001, telephone (301) 415-6194; or S. Singh Bajwa, Office of

Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission,

Washington, DC 20555-0001, telephone (301) 415-1013.

SUPPLEMENTARY INFORMATION:

Background

On June 27, 1988 (53 FR 24018), the Commission promulgated

decommissioning regulations. On July 20, 1995 (60 FR 37374), the

Commission issued proposed amendments to these regulations. A

discussion of the current requirements and proposed amendments follows.

Current Requirements

Within 2 years after a licensee permanently ceases operation of a

nuclear reactor facility, it must submit a detailed decommissioning

plan to the NRC for approval, along with a supplemental environmental

report that addresses environmental issues that have not already been

considered. Based on these submittals, the NRC reviews the licensee's

planned activities, prepares a Safety Evaluation Report (SER) and an

environmental assessment (EA), and either makes a negative declaration

of impact (the usual case) or prepares an environmental impact

statement (EIS). Upon NRC approval of the decommissioning plan, the

Commission issues an order permitting the licensee to decommission its

facility in accordance with the approved plan. As part of the approval

process, the opportunity for a hearing under subpart G of 10 CFR part

2, is made available to the public. Once the decommissioning process is

completed and the NRC is satisfied that the facility has been

radioactively decontaminated to an unrestricted release level, the NRC

terminates the license.

If the licensee chooses to place the reactor in storage and

dismantle it at a later time, the initial decommissioning plan

submittal need not be as detailed as a plan for prompt dismantlement.

However, before the licensee can begin dismantlement, a detailed plan

and environmental report must be submitted and approved by the

Commission.

Before the decommissioning plan is approved, the licensee cannot

perform major decommissioning activities. If a licensee desires a

reduction in requirements because of the permanent cessation of

operation, it must obtain a license amendment for possession-only

status. This is usually granted after the licensee indicates that the

reactor has permanently ceased operations and fuel has been permanently

removed from the reactor vessel.

A licensee is required to provide assurance that at any time during

the life of the facility, through termination of the license, adequate

funds will be available to complete decommissioning. For operating

reactors, the amount of decommissioning funding required is generically

prescribed in 10 CFR 50.75. Five years before license expiration or

cessation of operations, a preliminary decommissioning plan containing

a site-specific decommissioning cost estimate must be submitted and the

financial assurance mechanism must be appropriately adjusted. Finally,

the decommissioning plan, submitted within 2 years after permanent

cessation of operations, must provide a site-specific cost estimate for

decommissioning and a correspondingly adjusted financial assurance

mechanism. For delayed dismantlement of a power reactor facility, an

updated decommissioning plan must be submitted with the estimated cost

of decommissioning and the licensee must appropriately adjust the

financial assurance mechanism. Before approval of the decommissioning

plan, licensee use of these funds would be determined on a case-

specific basis for premature closure, when accrual of required

decommissioning funds may be incomplete.

Proposed Amendments

The degree of regulatory oversight required for a nuclear power

reactor during its decommissioning stage is considerably less than that

required for the facility during its operating stage. During the

operating stage of the reactor, fuel in the reactor core undergoes a

controlled nuclear fission reaction that generates a high neutron flux

and large

[[Page 39279]]

amounts of heat. Safe control of the nuclear reaction involves the use

and operation of many complex systems. First, the nuclear reaction must

be carefully controlled through neutron absorbing mechanisms. Second,

the heat generated must be removed so that the fuel and its supporting

structure do not overheat. Third, the confining structure and ancillary

systems must be maintained and degradation caused by radiation and

mechanical and thermal stress ameliorated. Fourth, the radioactivity

resulting from the nuclear reaction in the form of direct radiation

(especially near the high neutron flux areas around the reactor

vessel), contaminated materials and effluents (air and water) must be

minimized and controlled. Finally, proper operating procedures must be

established and maintained with appropriately trained staff to ensure

that the reactor system is properly operated and maintained, and that

operating personnel minimize their exposure to radiation when

performing their duties. Moreover, emergency response procedures must

be established and maintained to protect the public in the event of an

accident.

During the decommissioning stage of a nuclear power reactor, the

nuclear fission reaction is stopped and the fuel (spent fuel

assemblies) is permanently removed and placed in the spent fuel pool

until transferred offsite for storage or disposal. While the spent fuel

is still highly radioactive and generates heat caused by radioactive

decay, no neutron flux is generated and the fuel slowly cools as its

energetic decay products diminish. The spent fuel pool, which contains

circulating water, removes the decay heat and filters out any small

radioactive contaminants escaping the spent fuel assemblies. The spent

fuel pool system is relatively simple to operate and maintain compared

to an operating power reactor. The remainder of the facility contains

radioactive contamination and is highly contaminated in the area of the

reactor vessel. However, because the spent fuel is stored in a

configuration that precludes the nuclear fission reaction, no

generation of new radioactivity can occur. Safety concerns for a spent

fuel pool are greatly reduced regarding both control of the nuclear

fission process and the resultant generation of large amounts of heat,

high neutron flux and related materials degradation, and the stresses

imposed on the reactor system. Contaminated areas of the facility must

still be controlled to minimize radiation exposure to personnel and

control the spread of radioactive material. This situation is now

similar to a contaminated materials facility and does not require the

oversight that an operating reactor would require.

Based on the preceding discussion, it should be noted that during

the operating stage of the reactor a nuclear reaction must be sustained

that has the potential during an accident to generate significant

amounts of energy and radiation whose consequences can be severe.

Moreover, the nature of maintaining and controlling a nuclear reaction

and the complexity of systems and operations requirements necessary to

prevent and mitigate adverse consequences requires considerable

oversight by the NRC. During the decommissioning stage of the reactor,

the potential for consequences that could result from an inadvertent

nuclear reaction are highly unlikely. The systems required for

maintaining the spent fuel in the spent fuel pool as well as the

operations required to contain the remaining residual contamination in

the facility and spent fuel pool are relatively simple. Consequently,

the activities performed by the licensee during decommissioning do not

have a significant potential to impact public health and safety and

these require considerably less oversight by the NRC than during power

operations.

The amendments proposed in July 20, 1995 (60 FR 37374), were

intended to provide licensees with simplicity and flexibility in

implementing the decommissioning process, especially with regard to

premature closure. The proposed amendments were intended to clarify

ambiguities in the current regulations, codify procedures and

terminology that have been used in a number of specific cases, and

increase opportunities for the public to become informed about the

licensee's decommissioning activities. The amendments were designed to

establish a level of NRC oversight commensurate with the level of

safety concerns expected during decommissioning activities.

A. Initial activities. The decommissioning process outlined in the

proposed amendments was similar in approach to that in the current

decommissioning rule, but included flexibility in the type of actions

that can be undertaken without NRC approval. Once a licensee

permanently ceases operation of the power reactor, no major

decommissioning activities (as defined in the proposed rule) could be

undertaken until the public and the NRC were provided information by

the licensee. Information required from the licensee in a Post-Shutdown

Decommissioning Activities Report (PSDAR) consisted of the licensee's

proposed decommissioning activities and schedule through license

termination, an assessment of whether such proposed activities are

bounded by existing analyses of environmental impacts, and a general

decommissioning cost estimate for the proposed activities. The PSDAR

would be made available to the public for comment.

Ninety days after the PSDAR submittal to the NRC and approximately

30 days after a public information meeting is held in the vicinity of

the reactor site, the licensee could perform major decommissioning

activities if NRC does not offer an objection. Before undertaking these

activities, the licensee must provide certifications to the NRC that

operations have permanently ceased and fuel has been permanently

removed from the reactor vessel (elements not formally addressed in the

current rule). Once these certifications have been provided to the NRC,

the licensee could no longer operate the reactor.

Part 50 technical requirements would also be amended to properly

cover the transition of the facility from operating to permanent

shutdown status (which also is not explicitly covered in the current

rule). Thus, a licensee who has permanently ceased operations and

removed fuel from the reactor vessel would no longer need to obtain a

license amendment to proceed with certain decommissioning activities

within established regulatory constraints.

B. Major decommissioning activities. A major change from the

current rule is that power reactor licensees would no longer be

required to have an approved decommissioning plan before being

permitted to perform major decommissioning activities. Under the

proposed rule, licensees would be allowed to perform activities that

meet the criteria proposed in Sec. 50.59. Section 50.59 would be

amended to include additional criteria to ensure that concerns specific

to decommissioning are considered by the licensee. Based on NRC

experience with licensee decommissioning activities, the Commission

recognized that the Sec. 50.59 process used by the licensee during

reactor operations encompassed routine activities that are similar to

those undertaken during the decommissioning process. The Commission

concluded that the Sec. 50.59 process could be used by the licensee to

perform major decommissioning activities if licensing conditions and

the level of NRC oversight required during reactor operations are

continued, commensurate with the status of the facility being

decommissioned. These

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objectives were considered in the proposed rule as follows.

(1) The proposed rule would clarify, modify, and extend certain

licensing conditions to decommissioning activities.

(2) Aside from changes to part 50, the final safety analysis report

(FSAR), which is a licensing basis document for performing activities

under Sec. 50.59, would need to be updated to cover decommissioning

activities.

(3) A PSDAR would be submitted to the NRC that would contain a

schedule of planned decommissioning activities and provide a mechanism

for timely NRC oversight. The licensee would provide written

notification to the NRC before performing any decommissioning activity

that is inconsistent with or makes significant schedule changes from

the PSDAR.

C. License termination. A licensee wishing to terminate its license

would submit a license termination plan for approval similar to the

approach that is currently required for a decommissioning plan.

However, the plan would be less detailed than the decommissioning plan

required by the current rule, because it would not need to provide a

dismantlement plan, and could be as simple as a final site survey plan.

The approval process for the termination plan, as in the current rule,

would provide for a hearing opportunity under 10 CFR part 2. The

proposed rule recognized that, if the spent fuel is either offsite or

in an independent spent fuel storage facility (ISFSI), that is covered

under a part 72 license, the remaining facility licensed under part 50

is similar to a materials facility and a less formal hearing, under

subpart L rather than subpart G of part 2, is more appropriate. As in

the current rule, a supplemental environmental report would be required

from the licensee that considers environmental impacts that are not

already covered in existing EISs. An additional requirement, proposed

for the purpose of keeping the public informed, is that a public

meeting be held, after the licensee submits the license termination

plan to the NRC, similar to the one held after the PSDAR submittal.

D. Financial assurance. The proposed rule would continue the same

degree of financial assurance as the current rule, but provide more

flexibility by allowing licensee's limited early use of decommissioning

funds. This provision was presented in a draft policy statement

entitled ``Use of Decommissioning Trust Funds Before Decommissioning

Plan Approval'' (59 FR 5216; February 3, 1994) that was published by

the Commission for comment and incorporated into the proposed rule.

Currently, licensee use of these funds is determined on a case-specific

basis for prematurely shutdown plants. However, the proposed rule

eliminated the requirement for a decommissioning plan and instead

required a PSDAR submittal, which requires a decommissioning cost

estimate. The proposed rule permitted some small percentage (3%) of the

generically prescribed decommissioning funds to be available to the

licensee for planning purposes (``paper studies'') before permanent

cessation of power reactor operations. Moreover, to permit the licensee

to accomplish major decommissioning activities promptly, an additional

generic funding amount would be made available (20%) before a site-

specific cost estimate, which must be submitted to the NRC within 2

years after permanent cessation of operations (as in the current rule).

The remainder of the funds would be made available after submittal of

the site-specific cost estimate, as in the current rule. When the

licensee submits the license termination plan, the same financial

considerations as those in Sec. 50.82(c) of the current rule would be

required to provide assurance that the licensee has adequate funds to

complete decommissioning and terminate the license.

E. License extension. The proposed rule clarified that a license

that has expired is not terminated until the Commission terminates it

and further clarifies what conditions prevail under such circumstances.

F. Grandfathering. The proposed rule applied to power reactor

licensees who do not have an approved decommissioning plan on the

effective date of the final rule. Licensees that already have an

approved plan could, at their option, follow the provisions of the

proposed rule.

G. Non-power reactors. There were some minor clarifications and

procedural simplifications in the proposed rule for the non-power

reactor decommissioning process. Otherwise, the current rule remained

essentially unchanged.

Response to Comments

Thirty-four comment letters were received on the proposed rule from

power reactor licensees, contractors, Government agencies, Agreement

States, citizens groups, and individuals. The comment letters have been

categorized into two groups representing commenters generally in favor

of the proposed rule and those generally not in favor of the proposed

rule. The commenters in favor of the rule (24) consisted of power

reactor licensees, contractors, Government agencies, and an Agreement

State. The commenters not in favor of the rule (10) consisted of

citizens groups, individuals, and an Agreement State. The comments have

been summarized and addressed through issue categories based on the

proposed rule.

Issue 1--Proposed Rule Approach.

Comments. Commenters in support of the proposed rule were, to

varying degrees, supportive of the proposed rule. There were a few

commenters in this group who fully supported the proposed rule because

it would facilitate efficient decommissioning of power plants by

reducing regulatory burden, clarifying the applicability of regulations

originally intended for operating reactors, allowing a phased approach

to decommissioning, and allowing early partial use of the

decommissioning trust fund. A few commenters supported the use of

lessons learned from ongoing decommissioning projects, expanding public

participation, and providing the rationale behind less formal NRC

policies and practices in a way that satisfies the requirements of the

Atomic Energy Act (AEA), Administrative Procedure Act (APA), and

National Environmental Policy Act (NEPA).

While many commenters were generally supportive of the general

concept of the proposed rule, they indicated that the proposed rule did

not go far enough in reducing unnecessary regulatory burden. They noted

that the existing NRC requirements regarding operating reactors were

more than adequate to encompass decommissioning activities and, if

anything, should be relaxed rather than expanded. These recommended

relaxations pertained to such items as a more liberal attitude toward

collection and use of decommissioning trust funds, elimination of

unnecessary criteria concerning the use of the proposed Sec. 50.59,

elimination of proposed mandatory public meetings, elimination of the

proposed Post-Shutdown Decommissioning Activities Report (PSDAR)

submittal, and elimination of the proposed license termination plan or

eliminating its inclusion into the license by amendment, including

elimination of the accompanying proposed Subpart L or G hearing

opportunity.

Commenters not in favor of the proposed rule were not supportive of

the proposed rule to varying degrees. Many of these commenters were

strongly opposed to the proposed rule and indicated that it allowed

nuclear power generators to have discretionary

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powers to regulate themselves; that NRC was abdicating its

responsibility for protecting the health and safety of workers and the

public; that, in allowing the decommissioning plan to be included in

the Final Safety Analysis Report (FSAR) it could be revised without

license amendment, thereby excluding the public from the process; and

that major component removal should not be allowed before the

decommissioning plan is approved by the NRC. These commenters expressed

a variety of views indicating that the existing rule should be left

alone or that the current rule should be left basically in place but

made more efficient through better implementation and should include

greater opportunities for public participation. Finally, a few

commenters indicated that significantly greater public participation

and oversight are necessary than that prescribed in the proposed rule.

Response. The proposed rule was developed to allow more flexibility

in dealing with premature closures, the decommissioning process in

general, and the experience gained from recent decommissioning

activities such as those at Fort St. Vrain, Shoreham, and Rancho Seco,

as well as early component removal at Yankee Rowe and Trojan. The

justification and intent of the final rule is unchanged. The NRC's

primary concern, as the licensee transitions to decommissioning, is

that the licensee will have sufficient funds to complete

decommissioning and that the activities undertaken by the licensee will

protect the public and the environment. The intent of this final rule

is to streamline some of the decommissioning requirements for power

reactor licensees, especially in approval of the decommissioning plan

before major decommissioning activities can be undertaken and in early

use of decommissioning trust funds.

Specific issues addressed in the final rule are discussed in

greater detail below.

Issue 2--PSDAR, FSAR, and update requirements.

Comments. Commenters in favor of the rule had various comments

concerning the PSDAR, its required update, and the proposed update to

the FSAR. Several commenters indicated that the PSDAR requirement

should be eliminated because it is more stringent than requirements

imposed on operating reactors, that the PSDAR should only require

information (detailed schedule) pertaining to the current phase of

decommissioning because dismantlement and site restoration may not

occur for many years, that the word ``synopsis'' should be used to make

it clear that the PSDAR is a high-level summary, and that there should

be consistency in the criteria for assessing environmental impacts

between the PSDAR and the proposed Sec. 50.59 requirements. A few

comments suggested making the reporting requirements more efficient by

combining them and updating the PSDAR and FSAR together, requiring

updates no more than once every 36 months, or using a single PSDAR for

multi-reactor sites. Several comments suggested that the updating

requirement for the PSDAR be eliminated because Sec. 50.59 already

requires annual reporting requirements, that the term ``significant''

used in the proposed Sec. 50.82(a)(6) should be tied to the Sec. 50.59

safety evaluation, and that the extent of deviation in the PSDAR

schedule that is permissible without notice to the NRC should be

clarified. Finally, there was a comment that the final rule should make

it clear that, if prompt decommissioning (dismantlement) is being

pursued by the licensee, the PSDAR and license termination plan should

be permitted to be the same document.

Commenters not in favor of the rule did not specifically address

Issue 2. However, those commenters believed that the current rule

requirements should be followed and that an approved decommissioning

plan should be required before a licensee is permitted to perform major

decommissioning activities.

Response. The purpose of the PSDAR is to provide a general overview

for the public and the NRC of the licensee's proposed decommissioning

activities until 2 years before termination of the license. The PSDAR

is part of the mechanism for informing and being responsive to the

public prior to any significant decommissioning activities taking

place. It also serves to inform and alert the NRC staff to the schedule

of licensee activities for inspection planning purposes and for

decisions regarding NRC oversight activities. Because the final rule

eliminates the need for an approved decommissioning plan before major

decommissioning activities can be performed, the requirement to submit

a PSDAR is less stringent than existing requirements for power reactor

licensees.

The information required to be in the PSDAR is less detailed than

the information required in the FSAR. Therefore, the PSDAR should not

be combined with the FSAR because the two documents have different

purposes. The final rule requires a written notification if activities

are anticipated that would be inconsistent with the PSDAR activities

previously described. The licensee's consideration of such

inconsistency would include any milestone scheduling changes of

dismantlement tasks and significant increases in decommissioning costs

from those described in the PSDAR. The final rule will explicitly

include the requirement that activities that would result in

significant increases to decommissioning costs from those presented in

the PSDAR must be a consideration in the notification requirements of

Sec. 50.82(a)(7). It is intended that regulatory guidance addressing

the PSDAR Standard Format and Content will be issued soon after the

final rule is published.

Currently, FSAR updates are required annually or 6 months after a

refueling outage provided the interval between updates does not exceed

24 months. Because the FSAR is the basis for the use of Sec. 50.59, the

updates will need to be timely, so the final rule specifies a 24-month

FSAR update for decommissioning activities for those nuclear power

reactor licensees that have submitted the certifications of permanent

cessation of operation and permanent removal of the fuel from the

reactor vessel.

If prompt decommissioning is desired by the licensee, the licensee

could elect early submittal of the PSDAR, before cessation of

operation, and then use of Sec. 50.59 would be permitted at cessation

of operation, provided the certification of permanent fuel removal from

the reactor vessel has been received and the public meeting had been

held in advance. Although the PSDAR and license termination plan serve

different purposes, and a formal approval process is required of the

latter, the PSDAR and license termination plan can be combined. If a

licensee chooses to combine the PSDAR and the license termination plan,

the requirements for both would apply to the combined document,

including the requisite waiting period, public meeting, and approval by

amendment of the license termination plan. The procedure for approval

of a license termination plan is similar to that currently required for

approval of a decommissioning plan. For a multi-reactor site, the PSDAR

could address the activities for all the reactors at the site if

decommissioning of each will be undertaken at the same time.

Issue 3--Ninety-Day Time Period Prior to Undertaking Major

Decommissioning Activities.

Comment. Several commenters noted that the proposed 90-day waiting

period before major decommissioning activities could be undertaken did

not address a

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health and safety concern and that there are potentially high costs

associated with such a delay because licensees could do a lot of

dismantlement during this time that would be more efficient and cost

advantageous. These commenters emphasized that all activities could be

carried out under Sec. 50.59 and the current licensing basis. They

further stated that, if the 90-day hold is retained, clarification is

needed regarding the NRC's opportunity to interpose an objection to

proceeding with major decommissioning and that the NRC review should be

based on areas of significant safety. Finally, one commenter expressed

a concern that the 90-day waiting period would not allow enough time

for public participation, including consideration of comments received

from the public after NRC notices the licensee's PSDAR submittal and

during a public meeting.

Commenters not in favor of the rule did not specifically address

Issue 3. However, those commenters believed that the current rule

requirements should be followed and that an approved decommissioning

plan should be required before a licensee is permitted to perform major

decommissioning activities.

Response. The commenters have correctly noted that the 90-day

waiting period does not just address a health and safety issue. The NRC

has chosen a 90-day waiting period prior to allowing major

decommissioning activities to occur as the minimal time necessary for

the NRC to evaluate the licensee's proposed activities and to conduct a

public meeting. The public meeting is informational and may be chaired

by a local official, with a presentation of the regulatory process for

decommissioning by the NRC, presentation of planned decommissioning

activities by the licensee, and participation by State representatives.

A question and answer period would follow the presentations. By

submitting the PSDAR before cessation of operation, a licensee could

reduce the need for a waiting period (see the response to Issue 2 for

an additional discussion on ways that the waiting period may be

reduced).

Issue 4--Proposed Rule Modifications to Sec. 50.59.

Comment. Many commenters approved of some form of the proposed

modifications to Sec. 50.59. Many of these commenters noted that

Sec. 50.59(e) in the proposed rule is more stringent than the existing

requirements for operating reactors. These commenters believed that the

existing Sec. 50.59 criteria are adequate. Several commenters stated

that the four proposed constraints contained in Sec. 50.59(e) are

somewhat redundant to the proposed requirements in Sec. 50.82; the

PSDAR content plus update and the 90-day waiting period envelopes

issues addressed by these criteria. These commenters believed that if

Sec. 50.59(e) criteria were kept they should be in a regulatory guide

and not in a rule. Comments specific to the four criteria and why they

should be eliminated follow.

Section 50.59(e)(1)(i) concerning foreclosure of the site for

unrestricted release. It was noted that any event that detracts from

this effort would be accidental in nature, and that the proposed rule

provided no explanation of the types of activities that could result in

foreclosing the site for unrestricted use.

Section 50.59(e)(1)(ii) concerning significantly increasing

decommissioning costs. It was noted that cost estimate information is

required prior to and through the decommissioning process, making this

requirement unnecessary. Moreover, it was asserted that there is no

logical correlation between the cost of a decommissioning activity and

whether a license amendment should be required for that activity and

that costs have never been a consideration in determining whether a

proposed activity is consistent with the licensing basis for a plant.

It was also noted that other regulatory bodies such as Public Utility

Commissions and the Federal Energy Regulatory Commission, as well as

economic pressure, will force a licensee to perform decommissioning

cost effectively. It was recognized that actions taken by a licensee

may diminish the decommissioning fund and it was suggested that the

wording be changed to deal with actions that would ``significantly

inhibit the ability to fund decommissioning costs which would prevent

successful decommissioning.''

Section 50.59(e)(1)(iii) concerned environmental impacts not

previously reviewed. It was noted that compliance with the operating

license, technical specifications, and Sec. 50.59 regarding unreviewed

safety questions adequately preclude having significant adverse

environmental impact that have not been reviewed. Moreover, the

requirement is redundant to the requirement concerning unreviewed

environmental impacts required in the content of the PSDAR specified in

Sec. 50.82.

Section 50.59(e)(1)(iv) concerned violating the terms of the

existing license. It was noted that this requirement is redundant with

language in Sec. 50.59(a) that allows licensees to proceed with an

activity so long as it does not violate technical specifications or

constitute an unreviewed safety question as defined by

Sec. 50.59(a)(2). Also, it was noted that a license amendment is

required for changes in technical specifications under the current

Sec. 50.59(c).

Most commenters who opposed the use of proposed Sec. 50.59 were not

in favor of the rule. One commenter stated that the analysis of the

dismantlement activities proposed under Sec. 50.59 to determine whether

or not the activity generates any unreviewed safety issue should be

provided to the NRC, rather than rely on an NRC audit as existing

regulations provide. This analysis would also provide this information

to the public for examination. Several of the commenters indicated that

an after-the-fact review of Sec. 50.59 activities would provide

insufficient regulatory protection. Finally, a commenter stated that

the presence of an NRC inspector is essential during decommissioning

activities.

Response. The Commission concluded that the proposed

Sec. 50.59(e)(1)(iv) is redundant and should be eliminated from the

final rule. The Commission reconsidered the need for the remaining

Sec. 50.59(e)(1) requirements and determined that placing them in

Sec. 50.82 would be more appropriate. The Commission also concluded

that the requirement ensuring that no major decommissioning activities

occur that would significantly increase decommissioning cost could be

overly burdensome. Instead, an appropriate constraint would be to

prohibit any decommissioning activities that result in there no longer

being reasonable assurance that adequate funds will be available for

decommissioning. However, the NRC needs to be aware of changes in

decommissioning activities that would result in significantly

increasing decommissioning costs and would require written notification

of such intended actions. The other paragraphs in Sec. 50.59(e) were

placed in Sec. 50.82(a) to ensure that they will be considered as

overall constraints on the licensee's decommissioning activities,

rather than separately for each contemplated activity as proposed in

Sec. 50.59(e).

The purpose of retaining these requirements is to ensure that no

decommissioning activities can occur that result in: (1) Eliminating

the potential for unrestricted release, (2) significant environmental

impacts not previously considered in EISs, and (3) there no longer

being reasonable assurance that adequate funds will be available for

decommissioning. The basis for this final rule permitting the

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use of Sec. 50.59 activities to perform decommissioning activities is

that environmental impacts have already been considered and that such

consideration was for an unrestricted release condition where the

licensee has sufficient funds to complete decommissioning (see final

generic environmental impact statement (FGEIS), NUREG-0586).1 The

major considerations of licensee decommissioning activities that could

significantly affect the environment are at the license termination

stage when the licensee submits a license termination plan for

approval.

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\1\ NUREG-0586, ``Final Generic Environmental Impact Statement

on Decommissioning of Nuclear Facilities,'' USNRC, August 1988.

Copies are available for inspection or copying for a fee from the

NRC Public Document Room 2120 L Street NW. (Lower Level),

Washington, DC; the PDR's mailing address is Mail Stop LL-6,

Washington, DC 20555-0001; telephone (202) 634-3273; fax (202) 634-

3343.

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If a licensee contemplates decommissioning activities that would

violate these requirements, the licensee may not use the Sec. 50.59

process delineated in this rule to perform the activities. The licensee

would then be required to obtain a license amendment to perform the

activities.

The final rule prohibits licensees from performing any

decommissioning activities that 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

(Sec. 50.82(a)(6)). Prior to the licensee's use of the Sec. 50.59

process to perform major decommissioning activities, the PSDAR

submittal and public information process must be completed. The

licensee is required to include a discussion that provides the reasons

for concluding that the environmental impacts that might occur during

decommissioning activities have already been considered in site-

specific or generic environmental impact statements, and to estimate

the amount of funds necessary to complete decommissioning (see

Sec. 50.82(a)(4)).

The licensee is also required to submit a site-specific cost

estimate within 2 years after permanent cessation of operations. Use of

decommissioning trust funds are subject to the requirements (in

Sec. 50.82(a)(8)) that adequate funds will be available to ultimately

release the site and terminate the license. Moreover, the final rule

requires the licensee to notify the NRC in writing before performing

any decommissioning activity inconsistent with, or making any

significant schedule change from, those actions and schedules described

in the PSDAR and states that this notification include consideration of

significant increases in decommissioning costs (Sec. 50.82(a)(7)).

The NRC intends to maintain an active inspection program to provide

the requisite level of oversight of licensee activities during

decommissioning. The PSDAR and any written notification of changes

required of a licensee will be used to schedule NRC inspection

resources for significant decommissioning activities.

In addition to continuing requirements that the licensee must

comply with, such as 10 CFR part 20, regarding protection of workers

and the public from radiation, and appendix B to 10 CFR part 50

regarding quality assurance, the final rule explicitly extends certain

technical requirements to cover decommissioning activities (e.g.,

Secs. 50.36, 50.36a, 50.36b, and Appendix I regarding technical

specifications for surveillance requirements, administrative controls,

control of effluents, and conditions to protect the environment). Thus,

there will be a licensing basis appropriate to the activities

undertaken using the Sec. 50.59 process during decommissioning. By

maintaining certain requirements throughout the decommissioning

process, licensees will be able to use the existing Sec. 50.59 process

to perform decommissioning activities and thus provide comparable

assurance that protection of the public health, safety, and the

environment will not be compromised.

Issue 5--Environmental Impact Considerations During the Initial

Phase of Decommissioning.

Comments. Many commenters in favor of the rule fully supported the

environmental impact considerations delineated in the proposed rule for

the PSDAR submittal, with no mandatory ER or subsequent EA requirement.

A few commenters suggested that no environmental impacts for

decommissioning need be addressed further because the FGEIS for the

1988 decommissioning rule (NUREG-0586, August 1988) \1\ and subsequent

environmental assessments (for various actual power reactor

decommissioning situations) demonstrate that decontamination and

dismantlement do not significantly affect the human environment and

have beneficial effects in restoring the site to an environmentally

acceptable condition. A few commenters suggested that decommissioning

should be considered a categorical exclusion as defined in 10 CFR

51.22.

Most of the commenters who were not in favor of the rule believed

that the NRC should define decommissioning as a major Federal action

requiring an EA or EIS. They further indicated that a generic

environmental impact statement cannot substitute for a site-specific EA

because the FGEIS does not consider all possibilities. A few of these

commenters further stated that the proposed environmental impact

consideration process is NRC's attempt to streamline the process for

utilities and deregulate NRC current requirements. A few commenters

stated that the process outlined in the proposed rule abdicates NRC's

responsibility to protect the health and safety of the workers, the

public, the environment, and it also undermines citizen's due process.

Response. While the FGEIS (NUREG-O586) \1\ for the 1988

decommissioning rule concluded that only minor negative environmental

impacts would result from decommissioning in addition to substantial

positive environmental impacts, it did not address site-specific

situations that could differ from the assumptions used in the FGEIS

analysis. However, it is expected that any site impacts will be minor.

Any site impact should be bounded by the impacts evaluated by previous

applicable GEISs as well as any site-specific EIS. To account for site-

specific situations that may occur outside these environmental impact

considerations, the final rule prohibits major decommissioning

activities that could result in significant environmental impacts not

previously reviewed. The review process for the PSDAR and the approval

process for the license termination plan requires licensees to review

the existing documents and address any discrepancies in their

submittals.

The environmental assessment conducted for this rulemaking relied

on the FGEIS for the decommissioning rule (NUREG-0586, August 1988) \1\

and determined that, insofar as the rule would allow major

decommissioning activities (dismantlement) to proceed without an

environmental assessment, application of the rule will not have a

significant impact on the environment. Although not required by NEPA,

NRC has required in this final rule that licensees indicate in the

PSDAR the reasons for concluding that the planned activities are

bounded by the FGEIS and previous site-specific environmental impact

statements. This requirement is consistent with one of the primary

goals of the PSDAR process, which is to promote public knowledge and

provide an opportunity to hear public views on decommissioning

activities before licensees commence decommissioning.

[[Page 39284]]

At the license termination stage, the Commission must make

decisions on the licensee-proposed actions described in the license

termination plan. The Commission must consider:

(1) The licensee's plan for assuring that adequate funds will be

available for final site release,

(2) Radiation release criteria for license termination, and

(3) The adequacy of the final survey required to verify that these

release criteria have been met.

Therefore, the NRC has determined that submittal of the license

termination plan should be treated as a license amendment. In addition,

under 10 CFR part 51, an environmental assessment or impact statement

would be required at the time the license is amended. Following

resolution of another ongoing NRC rulemaking activity that is

considering adoption of radiological release criteria, a categorical

exclusion may be adopted that would eliminate the requirement for an

environmental assessment or impact analysis, except in the case of a

restricted release of a site.

Issue 6--Public Participation.

Comment. Most commenters supporting the rule commented on the

public participation aspects of the proposed rule. They believed that

the participatory role given to the public was appropriate, excessive,

or in need of further clarification. Several questioned the need for

expanded public participation on matters of public health and safety

because the NRC regulatory framework already provides for such

participation (e.g., license amendment process). These commenters also

noted that the purpose of the public meeting following the PSDAR

submittal was not properly explained and that the final rule should

clearly state that the meeting is intended for exchange of information

only. Many commenters indicated that the NRC should limit the scope of

these meetings and hearings to issues that are related to health and

safety during the decommissioning process. These commenters also

indicated that the supplementary information should include a clear

statement of the purpose and participation guidelines for these

meetings and clearly identify NRC's role at these meetings (which

should be significant). A comment stated that it is essential that

adequate mechanisms be developed for addressing issues of concern

raised by members of the public and that, absent such closure, the

meeting would only compound frustrations felt by the interested public.

Finally, there was a comment that the 90-day waiting period (after the

submittal of the PSDAR to the NRC) before allowing licensees to

undertake major decommissioning activities may not allow enough time

for adequate public participation.

Most commenters who did not favor the rule believed that the public

participatory role proposed was inadequate. These commenters stated

that NRC should retain the possession-only license amendment (POLA) and

decommissioning plan approval required in the current rule to truly

enhance public participation. Public meetings were considered helpful,

but no substitute for an adjudicatory hearing that includes the rights

to discovery, to present evidence, and to cross examine. Along these

lines, a commenter stated that a meeting does not afford citizens the

level of institutional accountability necessary, given the dangers of

environmental-toxic contamination inherent in reactor decommissioning

activities and that citizens must have a substantive role in the

decommissioning process in order to clarify, negotiate, and protect

their community's interest. A few commenters suggested that site-

specific advisory boards (SSABs) should be established early in the

decommissioning process and that meaningful public involvement should

be required at every stage of the decommissioning process, not only at

the final termination stage.

Response. As discussed previously, initial decommissioning

activities (dismantlement) are not significantly different from routine

operational activities such as replacement or refurbishment. Because of

the framework of regulatory provisions embodied in the licensing basis

for the facility, these activities do not present significant safety

issues for which an NRC decision would be warranted. Therefore, it is

appropriate that the licensee be permitted to conduct these activities

without the need for a license amendment. However, the information

meetings will be beneficial in keeping the public informed of the

licensee's decommissioning activities. Although the primary purpose of

these meetings is to inform the public of the licensee's planned

activities, the NRC will consider public health and safety comments

raised by the public during the 90-day period before the licensee

undertakes decommissioning activities.

A more formal public participation process is appropriate at the

termination stage of decommissioning because the final disposition of

the site is determined at that time. Under the current rule, the

Commission issues an order permitting the reactor to be decommissioned,

based on the approved decommissioning plan, which amends the license.

NRC administrative procedures, in subpart G of 10 CFR part 2, now

provide an opportunity for persons to request a hearing regarding the

NRC's decision. A similar procedure will be followed in the final rule

for the license termination plan once the licensee has permanently

removed fuel from the site. However, the hearing will be less formal

because it will follow the procedures in Subpart L of 10 CFR part 2.

The role of the SSABs will be evaluated when the rulemaking regarding

radiological release criteria for license termination is finalized.

Issue 7--Establishment and Use of the Decommissioning Trust Fund.

Most of the commenters on this issue were in favor of the rule.

These commenters requested greater flexibility in what costs can be

included in the fund, such as disposal costs of radioactive waste from

plant operations, and greater flexibility in the use of the trust funds

prior to and during decommissioning. Specific comments that reflect the

full range of comments on financial issues are:

Comment a. The proposed Sec. 50.82(a)(7) proposes to regulate a

licensee's use of, and rate of withdrawal from, the decommissioning

trust fund. While NRC oversight is warranted to ensure that

decommissioning activities can be funded, regulating the rate of

withdrawal from the trust fund may unnecessarily impede the efficiency

of a licensee's decommissioning activities. Because the NRC's generic

estimates of decommissioning costs are substantially lower than most

recent site-specific cost estimates, licensees would be constrained to

withdraw small fractions of an unrealistically low estimate.

Response. Limiting initial withdrawals to 23 percent of the generic

cost estimate (using the Sec. 50.75 requirements), until the licensee

has submitted a site-specific decommissioning cost estimate, preserves

the integrity of the decommissioning trust accounts. The final rule

permits licensees to withdraw up to 3 percent of the generic formula

amount for planning at any time during the decommissioning planning

process, including planning that occurs while a plant is still

operating. This amount should be ample based on current planning costs

for licensees recently undergoing decommissioning. Likewise, allowing

withdrawals of 20 percent of the generic amount for decommissioning

activities would allow funding of certain activities before receipt of

a site-specific cost estimate. This amount is consistent with costs of

large component removal activities undertaken or contemplated by

[[Page 39285]]

licensees of shutdown plants (e.g., Yankee-Rowe and Trojan). Once the

NRC has received the site-specific decommissioning cost estimate, a

licensee would have access to the balance of trust fund monies for the

remaining decommissioning activities. Because the timing of the

submittal of a site-specific cost estimate is within the control of the

licensee, the Commission believes that unwarranted restraints on access

to funds are not imposed by the final rule.

Comment b. The scope of decommissioning-related activities that

licensees may collect funds for should include disposal of low-level

waste generated during operations, maintenance and storage of spent

fuel after cessation of operations, costs to maintain an independent

spent fuel storage installation, and non-radioactive demolition or

``greenfield.'' State Public Service Commissions and the Federal Energy

Regulatory Commission have authorized funding for these activities in

some cases because it is in the best interests of the utilities'

customers. The NRC regulation should not require segregation of these

funds in separate accounts; restrictions on the withdrawal of trust

funds in the proposed rule could lead utilities to create separate

trust accounts for each nuclear facility funding component (e.g.,

decommissioning, spent fuel management, and greenfield). Finally, the

rule should allow for the prudent and economic use, at the utility's

discretion, of decommissioning trust funds during the years of normal

plant operation even before end of life.

Response. The NRC's authority is limited to assuring that licensees

adequately decommission their facilities with respect to cleanup and

removal of radioactive material prior to license termination.

Radiological activities that go beyond the scope of decommissioning, as

defined in Sec. 50.2, such as waste generated during operations or

demolition costs for ``greenfield'' restoration, are not appropriate

costs for inclusion in the decommissioning cost estimate. Funds for

interim spent fuel storage and maintenance are addressed in

Sec. 50.54(bb).

The final rule does not prohibit licensees from having separate

sub-accounts for other activities in the decommissioning trust fund if

minimum amounts specified in the rule are maintained for radiological

decommissioning.

Comment c. Section 50.82(a)(7)(ii) of the proposed rule specifies

that a site-specific decommissioning cost estimate must be submitted to

the NRC prior to the licensee being permitted to use any funding in

excess of previously stipulated amounts. This could be interpreted to

mean that the NRC must approve the additional expenditures. If this

paragraph is retained, the intent of this ``permitting'' should be made

clear. Expenditures made in accordance with the PSDAR and the

decommissioning cost estimate should not require any additional NRC

authorization.

Response. The NRC's intent in the proposed rule was not to use a

formal approval mechanism for decommissioning expenditures once the

licensee submits its site-specific decommissioning cost estimate. The

final rule has been modified as suggested by the commenter.

Comment d. More guidance should be provided regarding what

constitutes a decommissioning ``planning'' expenditure. Changes in the

proposed rule regarding expenditure of funds from the NRC Draft Policy

Statement on use of decommissioning funds before decommissioning plan

approval (59 FR 5216; February 3, 1994), should be more fully

explained.

Response. The term ``planning'' used in Sec. 50.82(a)(8)(ii)

specifically means ``paper'' studies, not equipment removal.

Percentages are used in the final rule rather than specific dollar

amounts, as used in the Draft Policy Statement, to better allow for

inflation of costs in the future. Other changes to the Draft Policy

Statement are based on the response to comments, developed prior to

this rulemaking activity, and presented in the section on the

``Resolution of Comments on the Draft Policy Statement.''

Comment e. If a plant shuts down early, not only will there be

insufficient funds to pay for planned decommissioning (because not all

payments will have been made), but the actual cost of decommissioning

can be 2 to 3 times higher than planned. The NRC should require

external funds in the amount necessary to complete decommissioning

upfront. Moreover, the NRC does not have a procedure in place for

``replacing'' a reactor licensee that goes bankrupt. Finally, the NRC

should specifically allow the total financial approach to be made along

the lines of industry self-insurance.

Response. The revised regulations preserve the integrity of the

decommissioning funds by tying the rate of expenditure to specific

parts of the decommissioning process. At the same time they allow broad

flexibility once a licensee submits its site-specific decommissioning

cost estimate.

The issue of bankruptcy, as well as the requirement for power

reactor licensees to have the total amount of decommissioning funds

upfront, was considered during the development of the current rule and

found to be adequately addressed in current requirements. Bankruptcy

does not necessarily mean that a power reactor licensee will liquidate.

To date, the NRC's experience with bankrupt power reactor licensees has

been that they file under Chapter 11 of the Bankruptcy Code for

reorganization, not liquidation (e.g., Public Service Company of New

Hampshire, El Paso Electric Company, and Cajun Electric Cooperative).

In these cases, bankrupt licensees have continued to provide adequate

funds for safe operation and decommissioning, even as bondholders and

stockholders suffered losses that were often severe. Because electric

utilities typically provide an essential service in an exclusive

franchise area, the NRC staff believes that, even in the unlikely case

of a power reactor licensee liquidating, its service territory and

obligations, including those for decommissioning, would revert to

another entity without direct NRC intervention. However, the NRC

believes that with electric utility deregulation becoming more likely,

it may need to require additional decommissioning funding assurance for

those licensees that are no longer able to collect full decommissioning

costs in rates or set their own rates. Thus, the NRC proposed a

rulemaking plan to, in part, evaluate these developments in SECY-95-223

(September 1, 1995).

Issue 8--Court decision.

Comment. Most commenters who were in favor of the rule indicated

that the proposed rule did not conflict with the recent court decision

regarding the Yankee Rowe decommissioning (Citizens Awareness Network,

Inc. v. NRC, 59 F.3d 284 (1st Cir. 1995)). Most of the commenters who

were not in favor of the rule believed that the proposed rule violated

the court's decision, or the spirit of the decision, regarding Yankee

Rowe.

Response. A significant basis for the court's decision was that it

perceived that the Commission had not adequately provided the reasoning

for the NRC decision to allow decommissioning activities before NRC

approval of a licensee-submitted decommissioning plan (59 F.3d at 291-

292), a decision that the court considered to be a modification of the

Commission's decommissioning regulations. The court noted that the

Commission had failed to provide either a rulemaking proceeding or a

hearing to address what the court perceived to be NRC approvals of

licensee decommissioning activities (59 F.3d at 291-92, 294-95). By

initiation of

[[Page 39286]]

a notice of proposed rulemaking and solicitation of comment (July 20,

1995; 60 FR 37374), the Commission addressed the reasoning underlying

the proposed decommissioning process and allowed public review and

comment on that reasoning.

The final rule includes a public notice and meeting process,

prompted by the licensee's submission of a report describing planned

decommissioning activities, to hear public views before the licensee

undertakes major decommissioning activities. This process specifically

provides that licensees may not begin major decommissioning activities

until after they have submitted a PSDAR. The PSDAR will be made

available to the public for written comment and a public meeting will

be held to hear public views. Finally, the licensee is required to

submit a license termination plan before release of the site. The final

rule specifies that the license termination plan be approved by the NRC

through the license amendment process. This process provides the public

with hearing opportunities and ensures that any hearing on that plan

must be completed prior to release of the site. This procedural

framework assures that those citizens living near the site, potentially

for years or decades after the facility is shut down, will be provided

with information regarding the licensee's planned decommissioning

activities, have an opportunity to ask questions regarding those

activities at a public meeting early in the process, and have timely

input into the decision to release the site.

In its decision, the court also specifically addressed a concern

about decommissioning activities taking place prior to any NEPA

analysis (59 F.3d at 292-93). The final rule addresses this issue in

several respects. First, the final rule explicitly prohibits the

licensee from performing any major decommissioning activity that

results in significant environmental impacts not previously reviewed or

forecloses possible unrestricted release of the site.

Also, when the licensee submits the PSDAR, the licensee must

specifically include a section discussing how the planned activities

fit within the envelope of environmental effects included in either the

FGEIS (NUREG-0586, August 1988) \1\ or the facility's site-specific

environmental impact statement. Moreover, the licensee must provide

written notification if the intended decommissioning activities are

inconsistent with the PSDAR. This requirement helps ensure that, after

submittal and public comment on the PSDAR, any changes to the planned

decommissioning activities continue to be enveloped by the assessment

of environmental impacts in prior environmental reviews. Any activities

not meeting the environmental criteria would require the licensee to

file an application for amendment to the license and a supplement to

its environmental report under 10 CFR part 51. Finally, the rule

requires a formal license termination plan by the licensee. The

activities in the licensee's plan which do not meet the environmental

criteria must be approved by the NRC by a license amendment that

follows NRC procedures for amendments, including applicable hearing

rights (under either subpart L or subpart G of 10 CFR part 2, as

specified in the rule) and the preparation of environmental

assessments.

The court perceived that the agency ``approval'' of the expenditure

of funds from the decommissioning funds may be a basis for triggering

both NEPA reviews and hearing rights (59 F3d at 292-95). The final rule

addresses this issue by providing generic guidance as to what

expenditures can be made out of the decommissioning fund for

decommissioning activities before submittal of a site-specific cost

estimate. The revised regulations use generic criteria for expenditures

from the decommissioning funds and do not require prior NRC approval of

site-specific expenditures meeting the generic criteria (see

Sec. 50.82(a)(7)). These new provisions specifically require licensees

to maintain sufficient funds for release of the site and termination of

the license. The licensee will have to also include an updated, site-

specific analysis of remaining costs in the license termination plan

submittal.

In publishing this final rule, the Commission has explained the

rationale for the new decommissioning process, and has concluded that

nothing in the court decision dictates that the Commission take a

specific approach to this issue or otherwise raises questions

concerning the validity of the approach adopted in this rulemaking.

Issue 9--Definitions.

Comment. Regarding the definitions in Sec. 50.2, a few commenters

indicated that the definition of decommissioning should include the

concept of restricted release to accommodate the proposed rulemaking on

acceptable residual radioactive criteria for decommissioning. Several

commenters noted that the definitions of ``major radioactive

components'' and ``major decommissioning activities'' were unnecessary

because the use of the existing Sec. 50.59 process does not require

these considerations and is adequate to deal with decommissioning

activities. However, if a definition of ``major radioactive

components'' must be kept, the definition should only be relevant to

any components, that when dismantled for shipment, contain greater than

class C waste. During decommissioning activities, these waste disposals

have the greatest significance regarding environmental impacts and

adequate funding and are unrelated to the physical size of components.

Response. When the residual radiation criteria rule is final, the

definition of decommissioning in Sec. 50.2 will address use of the

restricted release. It is necessary to have definitions of ``major

radioactive components'' and ``major decommissioning activities'' to

clarify what decommissioning activities may not occur before the end of

the 90-day waiting period. However, the definition of ``major

radioactive components'' in the final rule has been clarified so that

large components, other than those named, are not prohibited Sec. 50.59

activities if they contain small amounts of radioactivity.

Dismantlement of these components is considered part of routine

operating nuclear power reactor activities.

Issue 10--Modifications to Specific Technical Requirements.

Comment. Most of the commenters addressing this issue were in favor

of the rule and indicated that there should be additional elimination

or modification of requirements beyond those presented in the proposed

rule. There was a spectrum of views on this issue: if a risk analysis

were performed, it would demonstrate that the proposed rule would

impose unnecessary burden on NRC licensees and NRC resources without

commensurate benefit to health and safety; appropriate technical

specifications for decommissioning would be for those activities for

which there is a significant hazard; the final rule should include a

discussion of the logic (i.e., philosophy) in making conforming

revisions to part 50, especially with respect to provisions that did

not change (e.g., Secs. 50.55a, 50.63, 50.72, and 50.73 applicability);

the study and survey by the NRC concerning additional amendments for

non-applicability should be completed before this rule is finalized

(one commenter); and that the proposed rule appears geared to

permanently shut down reactors with fuel onsite and does not

differentiate among the aspects that apply once fuel is removed from

the site, and the rule should consider such situations. Finally, one

commenter requested that environmental qualifications remain in place

for equipment important to safety

[[Page 39287]]

pertaining to spent fuel management and storage.

Response. This rulemaking is primarily directed toward the

procedural process for decommissioning, with particular emphasis on

premature closure situations. The modifications to technical

requirements in the final rule are based on a consequence analysis that

either leads to elimination of the requirement or extends its

applicability to decommissioning.

The modifications to the technical requirements in the final rule

are incomplete, as noted in the proposed rule, and as the information

base continues to develop, additional rulemaking actions to modify

other requirements will be conducted. In the interim, licensees that no

longer have fuel onsite may continue to request exemption for specific

requirements on a case-by-case basis. The information base will address

the storage of high-density packaging of hot spent fuel in the spent

fuel pool with special consideration given to potential radiological

consequences that could occur from loss of coolant in the pool.

Consideration for amending rule requirements is also being given to

situations in which the fuel is in dry storage at an Independent Spent

Fuel Storage Installation (ISFSI).

Comments on specific amendments were:

Comment: Part 26. The final rule should explicitly state that the

fitness for duty program does not apply to a permanently shut down and

defueled facility. If it must apply, then it should apply to persons

with unescorted access to the fuel storage building or buildings

containing equipment necessary for the safe storage and handling of

spent fuel.

Response. Consideration of this issue is ongoing and may result in

future rulemaking. However, until a decision is made, part 26 continues

to be applicable.

Comment: Section 50.36. Criteria are needed to ensure that

technical specifications are appropriate for the conditions of a plant

in a defueled state. The four criteria specified in Sec. 50.59(e) would

be appropriate additional guidance.

Response. Consideration will be given at a later time to the

development of additional guidance in the form of standardized

technical specifications for decommissioning. However, licensees may

apply for modification of their technical specifications on a case-by-

case basis.

Comment: Section 50.36 (c)(6) and (e). These requirements, which

appear to imply that a new set of technical specifications will be

developed for the plant decommissioning phase, are redundant and should

be eliminated because Sec. 50.51(b)(2), the requirement to conduct

activities in accordance with the specific part 50 license for the

facility, is sufficient to ensure effectiveness of the technical

specifications.

Response. As a reactor facility transitions from operational to

decommissioning status, numerous changes to technical specifications

are expected. The regulatory experience with revisions to the technical

specifications during this transition period has entailed case-specific

evaluations of individual licensee requests. This has resulted in some

inconsistency and variability of expectations among shutdown reactor

facility license requirements. This revision provides the basis for

developing a consistent framework for the development of ``standardized

technical specifications for decommissioning,'' as well as addresses

the uncertainty regarding the applicability of the existing regulation

to permanently shutdown reactors. Section 50.51 specifically addresses

the continued effectiveness of expired licenses and limitation of

licensee actions during any continued effectiveness period. As such,

Sec. 50.51 does not, nor is it intended to, provide specific license

conditions and requirements. Section 50.36 addresses this issue.

Comment: Section 50.36a(a)(1). This requirement should be clarified

and revised because radioactive waste systems will have to be removed

prior to license termination, and the present wording appears to

require that these systems be used and maintained. Moreover, temporary

systems are typically used for effluent treatment and the rule should

be modified to describe only those systems that are appropriate.

Response. Section 50.36a(a)(1) is intended to ensure that operating

procedures for any waste treatment systems used to control effluents be

maintained and used to existing release criteria, and not that the

systems be used and maintained when no longer necessary. However, in

response to the comment, Sec. 50.36a(a)(1) has been modified from the

proposed rule so that systems that are no longer necessary can be

eliminated from compliance requirements.

Comment: Section 50.47. A defueled plant that has ceased operation

warrants a material reduction in the scope of its offsite emergency

planning requirements because the credibility of any offsite

consequences are reduced. Beyond the spent fuel pool, there is not

sufficient source term to justify emergency plans. This also pertains

to appendix E to part 50 and the requirements in Sec. 50.54(t)

concerning periodic review (frequency and scope) of the licensee's

emergency preparedness program.

Response. Consideration of the potential radiological consequences

of hot, high-density packaged fuel in the spent fuel pool is still

ongoing. Modifications to this requirement, if made, will be developed

at a later time.

Comment: Section 50.48. While some commenters agreed with the

concept of a fire protection plan through the end of decommissioning,

one found the proposed language overly restrictive, vague, and

ambiguous. This commenter stated that once the permanently removed

spent fuel is certified to no longer be a fire protection concern, an

industrial fire protection program could be adequate in most cases.

Several other commenters noted that there are other ongoing NRC

activities to improve current fire protection regulations, and if

actions are taken now, they should only be based on ``significant

hazards'' considerations.

Response. These modified requirements have been coordinated with

ongoing NRC activities regarding the improvement of fire protection

regulations. Also, see the response to Sec. 50.47 regarding spent fuel

considerations. As presently configured, fire protection regulations

apply only to operating reactor facilities. The need for an ongoing

fire protection program, albeit a modified one, remains after the

facility has ceased reactor operations. The final rule provides a

performance-based program that can readily be modified during the

decommissioning process to address residual hazards.

Comment: Section 50.49. Electric equipment required for protection

of spent fuel outside the reactor does not meet the definition of

equipment defined by Sec. 50.49(b). The discussion in the final rule

should be corrected to note that the environmental qualifications

regulations apply to selected safety and non-safety related equipment

as described in Sec. 50.49(b).

Response. No modifications to the proposed rule are necessary.

However, the environmental qualifications regulations apply to selected

safety and non-safety related equipment as described in Sec. 50.49(b).

Comment : Section 50.51. Section 50.51(b) should be deleted because

it is redundant. If it is kept, the requirements on the continuation of

a license should be clarified to affirm that other operating reactors

would be unaffected

[[Page 39288]]

when the operating license of one reactor has been terminated at a

multi-reactor site. Section 50.51(b)(1) should be clarified to indicate

that, at sites that have an intervening reuse but do not require

decontamination to unrestricted release, decontamination would not need

to occur until the end of the reuse period.

Response. Section 50.51(b) is not redundant and will not be

deleted. This section in the final rule has been modified to clarify

that an expired license for a nuclear reactor facility that has

permanently ceased operations is not terminated until the Commission

terminates it. This provision further clarifies what conditions prevail

under such circumstances. At a multi-reactor site, each reactor is

individually licensed and actions are applied accordingly. The final

rule addressing the radiological criteria for decommissioning will

address the issue of restricted release options. Under the proposed

rule, such restrictions would have to ensure that members of the

public, in the event the restrictions fail, would not receive a dose in

excess of 100 mrem per year. Unless the facility remained under

license, individuals having access to the facility would be considered

members of the public.

Comment: Section 50.54(g). The antitrust law requirements for a

reactor that has permanently ceased operations and permanently defueled

should be reevaluated for applicability.

Response. Section 50.54(g) simply provides that the issuance of an

NRC license does not relieve the licensee from compliance with the

antitrust laws specified in Section 105 of the Atomic Energy Act, and

that the NRC may take appropriate action, including suspension or

revocation of the license, if a court finds the licensee to have

violated any provisions of such antitrust laws. This subsection of the

regulation is sufficiently flexible that there is no reason to modify

or delete it with respect to a facility that has ceased operations or

is permanently defueled.

Comment: Paragraphs (k), (l), and (m) of Sec. 50.54. The

requirement for licensed operators should be eliminated or reduced

because reactivity changes can only occur during the initial stages of

decommissioning in connection with repositioning fuel assemblies in the

spent fuel pool. With reference to Sec. 50.54(i), the scope of the

operator requalification program and limitations on a licensee's

freedom to modify it should be reduced at facilities undergoing

decommissioning.

Response. Consideration of these issues is ongoing and may result

in future rulemaking.

Comment: Section 50.54(w). Onsite property damage insurance for a

facility undergoing decommissioning should be eliminated or

substantially modified.

Response. Consideration of the potential radiological consequences

of hot, high-density packaged fuel in the spent fuel pool is still

ongoing. Modifications to this requirement, if made, will be developed

at a later time.

Comment: Section 50.55a. Pertaining to codes and standards

requirements, it should be noted that Secs. 50.55a (a), (f), and (g),

inservice testing requirements, do not apply to permanently defueled

reactors because the plant is not operating and there is no need to

apply the regulation.

Response. No change is necessary because these requirements provide

assurance that relevant portions of the facility are maintained

functional or operational to adequate standards so they are

operationally capable.

Comment: Section 50.63. The requirements on the loss of all ac

power should not apply to decommissioning because the potential for

significant radiological consequences is very low (there is a low

probability of incident and long recovery time).

Response. Consideration of the potential radiological consequences

of hot, high-density packaged fuel in the spent fuel pool is still

ongoing. Modifications to this requirement, if made, will be developed

at a later time.

Comment: Section 50.65. Monitoring maintenance for a permanently

shutdown and defueled facility on any of its structures, systems, or

components (SSC) to levels required by the current maintenance rule is

unnecessary. Permanently shutdown and defueled facilities can no longer

experience the levels of mechanical stresses associated with an

operating plant. Therefore, the industry interprets the proposed rule

to mean that the maintenance program only applies to the safe storage

of fuel. The relative risks from a shutdown plant allow requirements in

existing technical specifications and other administrative programs to

provide adequate assurance for safe fuel storage.

Response. The maintenance rule, Sec. 50.65, requires that the

performance or condition of all structures, systems, and components

(SSCs) described in Sec. 50.65(b) be included in the scope of the rule.

Under the current rule, licensees are permitted flexibility in the

goals that are established and the monitoring that is performed for

these SSCs. The NRC agrees that the stresses on most SSCs in an

operating plant are greater than those associated with a shutdown and

defueled plant. The final rule allows the scope to be limited to those

SSCs associated with the storage, control, and maintenance of spent

fuel in a safe condition in a manner that provides reasonable assurance

that the SSCs are capable of performing their intended function.

Comment: Section 50.72. The immediate notification requirements for

operating nuclear power reactors should not apply to permanently

defueled reactors or, if applicable, should be significantly modified.

Regarding Sec. 50.72(a)(i), there should be no requirement to use the

Emergency Notification System or Emergency Response Data Systems.

Response. The NRC did not adopt this comment. Notification

requirements for events such as abnormal releases and overexposures are

examples of required reports that are necessary.

Comment: Section 50.111. Criminal penalties should not be imposed

for decommissioning activities because they are not so important to

public health and safety that licensees need be subject to them.

Decommissioning activities for reactor licensees should not be treated

any differently than for other radioactive material licensees.

Response. The Commission believes that certain actions are

essential in initiating the decommissioning process (e.g., certifying

to permanent cessation of operation and permanent removal of fuel from

the reactor vessel, and submitting a PSDAR) and should, therefore, be

treated as substantive with respect to the criminal penalty provisions

of the Atomic Energy Act. Decommissioning actions, when initiated

improperly, have a potential for significant consequences regarding

health, safety, and the environment. Willful violations of, attempted

violations of, or conspiracy to violate, Sec. 50.82 would, therefore,

be a matter of significant concern to the NRC. Thus, the NRC is

retaining the addition of Sec. 50.82 to the list of regulations to

which criminal sanctions apply.

Comment: Section 140.11. Concerning Price Anderson financial

protection, permanently shutdown and defueled facility licensees should

be permitted to withdraw from the secondary financial protection layer,

and single units should be given a reduction in the primary level of

coverage (e.g., $100,000,000).

Response. Consideration of the potential radiological consequences

of hot, high-density packaged fuel in the spent fuel pool is still

ongoing. Modifications to this requirement, if made, will be developed

at a later time, as will considerations of fuel stored in an ISFSI.

Issue 10--Termination of License Requirements.

[[Page 39289]]

Most of the commenters in favor of the rule supported the

decommissioning requirements for termination of the license in the

proposed rule. However, several of these commenters stated that

approval of the license termination plan should not require an

amendment or opportunity for a hearing. They believe that if the plan

is made available for public comment, existing regulations provide

ample opportunity for public participation and the AEA does not require

a hearing. Another commenter noted that once the spent fuel is off the

site, the hazard is reduced so there is no safety, technical, or legal

basis for NRC approval of a detailed decommissioning plan or PSDAR. A

commenter pointed out that the use of the proposed Sec. 50.59, which

includes the four criteria (Sec. 50.59(e)), addresses the unique

circumstances associated with the decommissioning activities. If some

activities do not satisfy the requirements of Sec. 50.59 and a license

amendment is required, interested parties would have an opportunity to

request a hearing. The approval of the plan by amendment and the

opportunity for a hearing are not for reasons of health and safety;

moreover, any interested party could always petition for a hearing

under Sec. 2.206. Another commenter made similar comments and went even

further in stating that if standards for radioactive release are clear,

meeting the objective of terminating the license should be easily

demonstrated without the need for approval of a plan or license

amendment; and that the plan should be available to the NRC for

information only.

Response. The requirement for submittal of a termination plan is

retained in the final rule because the NRC must make decisions,

required in the current rule on the decommissioning plan, regarding (1)

the licensee's plan for assuring that adequate funds will be available

for final site release; (2) radiation release criteria for license

termination, and (3) adequacy of the final survey required to verify

that these release criteria have been met. A public meeting is

considered necessary at the license termination stage to inform the

public about the licensee's proposed termination activities and to

provide an opportunity for public comment on those proposed activities.

The NRC has also made the determination that license termination is an

action of sufficient significance as to warrant an opportunity for a

public hearing on NRC's decision regarding the licensee's proposed

termination activities.

Specific comments concerning the license termination plan were

provided by several commenters.

Comment a. The timing of the license termination plan is not

explicit in the proposed rule, Sec. 50.82(a)(8), and it is not clear

whether the rule permits dismantlement activities before submittal or

approval of the license termination plan.

Response. The final rule permits dismantlement activities 90 days

after PSDAR submittal unless the NRC interposes an objection. The

license termination plan must be submitted within 2 years of the

licensee's expected date of license termination (the date specified in

the PSDAR or supplement).

Comment b. The NRC does not explain or support the need for the

elements of the plan, discussed in proposed Sec. 50.82(a)(8)(ii) (A)-

(G). The current rule, under Sec. 50.82(d), simply requires updated,

detailed plans before the start of decommissioning.

Response. The final rule permits major decommissioning activities

(dismantlement) to be performed using the Sec. 50.59 process. Because a

decommissioning plan is no longer required, the requirements for the

license termination plan are less complex than those that are currently

required for a decommissioning plan. The license termination plan

provides documentation on the remaining activities necessary to

terminate the license and includes consideration of remediation aspects

that could involve license termination under either unrestricted or

restricted release conditions (once the rulemaking on acceptable

residual release criteria is final). The site characterization,

description of the remaining dismantlement activities and plans for

site remediation are necessary for the NRC to be sure that the licensee

will have adequate funds to complete decommissioning and that the

appropriate actions will be completed by the licensee to ensure that

the public health and safety will be protected. The language of

Sec. 50.82(8)(a)(ii) (B) and (F) in the proposed rule, now

Sec. 50.82(a)(9)(ii) (B) and (F) in the final rule, has been changed to

more clearly reflect the intent of these requirements. Thus, element

(A) now requires identification of remaining dismantlement activities,

and element (F) now requires an updated site-specific estimate of

remaining decommissioning costs.

Comment c. One commenter questioned how multiple sites will be

addressed. Another commenter stated that a single license termination

plan should be encouraged for multi-reactor sites.

Response. Reactors at a multi-reactor site are individually

licensed and licensing actions are applied to the individual licenses.

A licensee would not be prohibited from submitting a single license

termination plan for the multi-reactor site, but the NRC would address

terminating each license separately.

Issue 11--License Termination: Additional comments.

Comment. A commenter stated that the need for a hearing when the

licensee submits the license termination plan for approval should be

reconsidered. If the licensee meets the requirements of the termination

plan and applicable regulations, there would be no issues to

adjudicate. Another commenter stated that, concerning the subpart L

proceedings, the NRC should issue a clear statement of policy to

eliminate the potential for significant litigation. Several commenters

stated that if subpart L is to be used for hearings, it appears

necessary to change the title of subpart L to include Part 50

licensees. Finally, a commenter stated that the applicability of

Subpart L hearings should be incorporated into Sec. 2.700 as well as

Sec. 2.1201.

Response. With respect to the termination plan, the Commission

recognizes that ongoing rulemaking proceedings may result in

establishing criteria for the restricted release of sites. Even if a

hearing is not legally mandated at the termination stage as argued by

some commenters, the Commission views it as appropriate to use the

amendment process for approval of termination plans, including the

associated opportunity for a hearing, to allow public participation on

the specific actions required for license termination. In particular,

the Commission has determined that, if a hearing is requested on the

termination plan, the hearing must be completed before release of the

site. This action will help ensure meaningful public input on any

proposal for restricted release of the site. Given that a lengthy

period (up to 60 years) may pass between the PSDAR stage and the

termination stage, and given that final release criteria are still

being developed that may include restricted release of a site, the

Commission views a license amendment process as appropriate, along with

the associated opportunity for a hearing, whether or not such hearings

are mandated by legislation. Finally, the changes proposed by the

commenters concerning the change of title of subpart L to include part

50 licensees and the incorporation of

[[Page 39290]]

subpart L applicability into Secs. 2.700 and 2.1201 are unnecessary

because the rule already addresses these considerations.

Comment. Many commenters expressed confusion on when a subpart L or

subpart G hearing would be appropriate. One commenter noted that once

fuel is out of the reactor vessel and in dry storage, there is no

difference between storage on or off site and that reference to the

subpart G hearing should be deleted. Another commenter wanted a

clarification of what is meant by removing fuel from the site (i.e.,

under a part 72 license). Another commenter suggested that the wording

to Sec. 2.1201(a)(3) be clarified concerning permanent removal of fuel

from the site to an authorized facility. One commenter inquired as to

whether a license could be terminated if the licensee removed the fuel

to an onsite ISFSI.

Response. The final rule clearly indicates that once the fuel is

removed from the licensed part 50 facility the power reactor facility

can be treated as a materials facility where a subpart L hearing is

appropriate. If fuel remains at the facility, a subpart G hearing is

appropriate. If the fuel is in an ISFSI, that part of the affected site

is regulated under a part 72 license and would no longer be regulated

under the part 50 license. The wording in Sec. 2.1201(a)(3) has been

changed to ``removal of fuel from the part 50 facility,'' rather than

``from the site,'' and means either removal offsite to an authorized

facility or to an onsite facility (ISFSI) not under the part 50

license.

Comment. Many commenters did not see the need for an environmental

review at the license termination stage, and one suggested that it be

considered a categorical exclusion. Another commenter stated that if

there were to be an environmental review, its scope should be

restricted to whether the licensee's controls and methods for

mitigation of radiation will meet the standards adopted in Sec. 20.1405

of the proposed residual radiation criteria rule.

Response. At the license termination stage, an environmental

assessment or impact statement will be required when the license is

amended. Following resolution of another ongoing NRC rulemaking

activity that is considering adoption of radiological release criteria,

a categorical exclusion may be adopted that would eliminate the

requirement for an environmental assessment or impact analysis, except

in the case of a restricted release of a site.

Comment. A few comments addressed proposed changes to Sec. 51.53

concerning requirements for environmental impact considerations. One

commenter stated that the first sentence of the first paragraph of

Sec. 51.53(b) should be deleted to be consistent with the concept that

``a license amendment authorizing decommissioning activities'' is no

longer required. Revised wording should begin with ``each applicant for

a license amendment approving a license termination plan or

decommissioning plan.'' Another commenter stated that Sec. 51.53 should

be revised to reflect the fact that the proposed rule, if adopted,

would not require an amendment that authorizes the conduct of

decommissioning activities, because neither the existing nor the

proposed decommissioning process requires a license amendment to

approve a decommissioning plan. Therefore the first paragraph of this

section should be reworded as ``[E]ach applicant for license

termination upon submittal of the license termination plan under

Sec. 50.82 of this chapter either for unrestricted use or based on

continuing use restrictions applicable to the site, * * * shall submit

* * *'' A similar change was stated to be needed in Sec. 51.95 for the

same reasons. Finally, a commenter noted that Sec. 51.53(b) as well as

Sec. 51.95(b) refer to ``applicants * * * for a utilization facility,''

which does not seem to be an element of the proposed rule and should be

deleted; also, Sec. 51.95(b) does not mention approval of a license

amendment for license termination or a decommissioning plan, which is

an omission and should be consistent with Sec. 51.53(b).

Response. No change was made to this section because the non-power

reactor facilities are still required to submit a decommissioning plan.

For non-power reactors, the current rule remains essentially unchanged

and requires submittal of a decommissioning plan that is approved

through license amendment. The non-power reactor licensee must also

submit an appropriate supplemental environmental report and the NRC

must do an EA as part of the decommissioning plan approval process.

Comment. Most of the commenters who were not in favor of the rule

supported the license termination phase requirements but believe that

these requirements were not timely and should be implemented in some

manner at the initiation phase of decommissioning.

Response. During the initial phase of decommissioning, the

requirements in the final rule are designed to provide oversight

commensurate with the level of safety concerns experienced in

decommissioning, while providing additional opportunity for public

comment on the licensee's proposed activities. The final rule

requirements are based on NRC's experience with licensees' use of the

Sec. 50.59 process during operations and consideration of the types of

activities that licensees would undertake during the decommissioning

process. Where appropriate, licensing requirements are continued

through decommissioning and the NRC is informed of each licensee's

planned decommissioning activities. (Additional discussion can be found

in the response to Comment 5).

Issue 12--Regulatory Guides.

Comment. Several commenters requested regulatory guidance in the

form of regulatory guides. These requests pertained to a standard

format and content for the PSDAR and license termination plan as well

as to transition guidance for licensees who are shut down and choose to

adopt the new process. Additional guidance was also requested for a

regulatory guide that dealt with the decommissioning process, such as a

revision to Regulatory Guide 1.86, ``Termination of Operating Licenses

for Nuclear Reactors,'' that would include such topics as the objective

and implementation aspects of public meeting and hearings, guidance on

issues the NRC would consider in not giving negative consent approval

to the PSDAR after the 90-day waiting period, guidance on

interpretation and development of technical rule requirements, and

guidance, on the particulars of ``grandfathering.'' Additionally,

several commenters requested additional financial guidance, through a

regulatory guide, on the development and use of the decommissioning

trust fund.

Response. The NRC intends to issue regulatory guidance on the

initial phase of decommissioning. Guidance on the standard format and

content of the PSDAR will be issued after the final rule is published.

Other guidance on the license termination phase is also being

developed.

Issue 13--Elimination of the Possession-only License Amendment

(POLA).

Comment. Generally, commenters in favor of the rule agreed with

eliminating the POLA. Objections to POLA elimination from other

commenters were that distinct categories between reactor operation and

cessation of operation should be maintained and that eliminating the

POLA process would eliminate a hearing opportunity prior to reactor

decommissioning. Reflecting the views of many commenters against POLA

elimination, a State commenter said that by deleting

[[Page 39291]]

the POLA the NRC would eliminate the amendment process that expressly

provides for State consultation (Sec. 50.91(b)) and that no subpart G

hearing process would occur that would allow for discovery by parties

to the proceeding and provide a mechanism for intervention. The State

commenter held that the proposed rule delays the need for amendment to

the license termination stage when it is too late; it is needed before

major decommissioning activities are undertaken. Moreover, at the

license termination stage, only a subpart L hearing is proposed (no

discovery). Finally, a few commenters asked why non-power reactors,

which are less hazardous facilities (smaller and less contaminated),

can still request a POLA and still require decommissioning plan

approval while power reactors no longer have this option or

requirement.

Response. If fuel is removed from the licensed part 50 facility,

the activities undertaken during decommissioning are more like the

kinds of activities undertaken at a typical materials facility where

the subpart L process applies. The final rule requires that certain

procedures be satisfied before a licensee can perform major

decommissioning activities. These procedures include requiring a PSDAR

submittal, conducting a public meeting, and allowing a specified time

period for NRC review of the licensee's intended actions. Other final

rule requirements prohibit the licensee from performing any major

decommissioning activity that could result in significant environmental

impacts not previously reviewed or foreclose the release of the site

for unrestricted use. Written notification to the NRC is required for

licensee decommissioning activities that are inconsistent with those

described in the PSDAR, including significant changes in

decommissioning costs. Finally, the final rule extends certain

regulatory requirements to decommissioning. Thus, licensee activities

that would require approval under a POLA are no longer necessary. The

affected State(s) will be notified about the public information meeting

as well as consulted on the licensee's planned decommissioning

activities by the NRC prior to the public meeting. The final rule

requires that a copy of the PSDAR and any written notification of

inconsistent PSDAR activities be sent to the affected State(s). In

response to the comment concerning why non-power reactors are still

given the option of submitting a POLA and still require a

decommissioning plan, it is noted that such reactors are required to

immediately dismantle, except for extenuating circumstances, and are

not permitted a storage period (because there is no significant health,

safety or environmental reason for delay--see FGEIS, NUREG 0586).\1\

Issue 14--``Grandfathering'' Considerations.

Comment. There were several commenters who were concerned that the

proposed rule did not significantly address nor provide necessary

guidance for ``grandfathering'' issues. Specific comments in this area

were that recognition should be given to those plants whose

decommissioning plans have been approved on a case-by-case basis; that

if existing facilities are grandfathered from any part of the proposed

rule, it should clearly identify this; that the proposed rule does not

adequately implement the grandfathering option because the current

Sec. 50.82 would disappear from the rule and no explicit provisions

would exist to rely on. It is suggested that the NRC keep the old

provision as well as an applicable alternative and; that for

grandfathering, an implementation provision should be added to the rule

in a fashion similar to Sec. 20.1008. Several commenters also noted

that guidance needs to be given to those licensees who are in various

aspects of decommissioning based on the current rule requirements and

wish to switch to the proposed rule requirements.

Response. The Commission has reconsidered the issue of

``grandfathering'' and modified the language in the final rule to

provide more specific guidance for nuclear power reactor licensees

whose facilities are currently at certain stages of decommissioning.

The Commission has decided to eliminate the provision in the proposed

rule that would give those licensees that have an NRC approved

decommissioning plan, before the date when a final rule became

effective, the option of either complying with the final rule

requirements or continuing with the requirements of the currently

existing rule. All licensees will be required to comply with the

decommissioning procedures specified in the provisions of the final

rule, when it becomes effective. The final rule addresses the process

for converting from the existing rule requirements to those in the

final rule for those nuclear power reactor licensees whose facilities

are already at certain stages of decommissioning.

For power reactor licensees who, before the effective date of this

final rule, either submitted a decommissioning plan for approval or

possess an approved plan, the plan will be considered as the PSDAR

submittal and the licensee will be required to perform decommissioning

in conformance with these final rule requirements. However, for power

reactor licensees who are involved in subpart G hearings of 10 CFR part

2, conversion to the new rule will not be permitted until the hearing

process is completed. The public meeting and 90-day hold on

decommissioning activities required in Sec. 50.82(a) (4)(ii) and (5)

will not apply. Those licensees will be subject to any orders arising

from these subpart G hearings, absent any orders from the Commission.

For nuclear power reactor facility licensees whose licenses have

been modified, before the effective date of this rule, to allow

possession but not operation of the facility, the certifications

required in Sec. 50.82(a)(1) will be considered to have been submitted.

With regard to extending current rule requirements for

``grandfathering'' considerations, no current rule requirements need be

retained because the ``grandfathering'' provision in the proposed rule

has been eliminated in the final rule. The final rule covers conversion

from the existing requirements for approval of a submitted or approved

decommissioning plan, as described above, and is specific to existing

licensee decommissioning plan situations.

Issue 15--Miscellaneous Comments.

Comment. Several commenters stated that the backfit rule,

Sec. 50.109, should apply to decommissioning because a proper reading

of the intent of that rule should cover rulemaking dealing with

decommissioning. Otherwise, additional requirements could be imposed

without a benefit cost analysis.

Response. The Commission has concluded that the provisions

addressed in this rulemaking do not involve a backfit because they

address only reactors that have permanently ceased operations and

Sec. 50.109 only applies to design, construction and operation of a

facility. These regulations are primarily procedural in nature and, to

the extent they address nonprocedural matters, they are a codification

of existing process.

Comment. A few commenters noted that the regulatory analysis for

the proposed rule did not evaluate the alternatives to the proposed new

regulatory requirements and existing requirements do not require a

license termination plan or a license amendment to approve a license

termination plan. The regulatory

[[Page 39292]]

analysis does not accomplish the objective of ensuring that all

regulatory burdens are needed, justified, and minimal.

Response. The regulatory analysis did evaluate the alternatives to

the proposed new regulatory requirements. The license termination plan

is not a new requirement because, under the existing rule, licensees

are required to submit a proposed decommissioning plan for approval

within 2 years of permanent shutdown. Currently, licensees who plan to

delay decommissioning by including a period of storage must submit a

final decommissioning plan for approval before starting

decommissioning. Current NRC policy is to approve the decommissioning

plan by license amendment. Because the proposed rule would permit the

licensee use of the Sec. 50.59 process to perform major dismantlement

activities, the license termination plan is less complex than a

decommissioning plan and covers the remainder of activities requiring

completion to terminate the license, other than dismantlement

activities. The changes adopted in the rulemaking primarily provide

additional flexibility to licensees that reduces burden without

reducing safety by allowing licensees to undertake the majority of

decommissioning activities without first obtaining NRC approval.

Comment. Several commenters wanted the option of entombment to be

allowed because restricted release will be allowed when the residual

radiation criteria rule is final. Aside from the difficulty of

disposal, the money not spent on LLW burial is substantial. The

interest on this money would be more than adequate to provide for the

maintenance and surveillance required for the entombment option. The

public, including local communities, may be interested in not

transporting waste across state boundaries and in keeping funds that

would otherwise be spent on disposal within the community.

Response. The issue of entombment was not addressed in this rule.

The NRC position on entombment is the same as in the current rule.

Entombment would only be permitted for very special circumstances but

would involve a continued license on a case-by-case basis. The concept

of restricted release included in the proposed rule on residual

radiation criteria would involve termination of the license with

restrictions in place to limit the use of the facility by the public,

but certain radiological criteria for restricted release would have to

be met.

Comment. Several individual commenters wanted to know whether NRC

rules allow the optional period of storage of the reactor facility to

be longer than 60 years and does the 60-year completion date for

decommissioning specified in the current rule consider storage of fuel

in an ISFSI. One commenter stressed that spent fuel should not be

separated from any of the phases of decommissioning because this is a

piecemeal approach and inappropriate. Another commenter stated that the

licensee should be required to maintain capability to handle the fuel

for dry cask storage.

Response. The primary considerations of the proposed rule were

procedural, with emphasis on the issue of premature closure. Other

aspects of the existing rule were unchanged. A 60-year period for

completion of decommissioning is still imposed, subject to other

considerations delineated in the current rule requirements. The

existing rule, as well as the proposed rule, consider the storage and

maintenance of spent fuel as an operational consideration and provide

separate part 50 requirements for this purpose. Regarding maintaining

the capability to handle the fuel for dry cask storage, these

requirements are maintained in 10 CFR part 72.

Comment. Several commenters noted that the requirements of this

proposed rule and the proposed residual radiological criteria rule

should be coordinated to avoid redundancy.

Response. The two rules will be coordinated.

Comment. A few commenters noted that a complete site

characterization should be included at the initiation of

decommissioning activities and that mandatory site radiological surveys

should be required before issuing a new license to establish background

conditions.

Response. These considerations are being addressed during

finalization of the residual radiological criteria rule.

Comment. Finally, several commenters requested that the NRC

consider the impacts of the proposed ``safeguards for nuclear fuel or

high level radioactive waste'' rule (60 FR 42079; August 15, 1995)

(which affects parts 60, 72, 73, and 75) on this rule when that

proposed rule is issued in final form.

Response. This rule is primarily directed toward the procedural

requirements necessary for power reactor decommissionings. Therefore,

the requirements imposed by this rule can be treated independently from

the other ``safeguards'' rule under development. That rule, when final,

may modify some of the technical requirements imposed by this final

rule.

Resolution of Comments on the Draft Policy Statement

On February 3, 1994 (59 FR 5216), the NRC published in the Federal

Register a draft policy statement and accompanying criteria relating to

power reactor licensee use of decommissioning trust funds before NRC

approval of licensees' decommissioning plans. The proposed rulemaking

to amend the procedural aspects of decommissioning (60 FR 2210; July

20, 1995) codified the position embodied in the draft policy statement.

Based on the NRC's resolution of comments on the proposed rule and

incorporated into this final rule, the criteria in the draft policy

statement have been modified. No final policy statement will be issued.

Other changes in the final rule pertaining to licensee use of

decommissioning trust funds were discussed earlier in the section on

Response to Comments.

The NRC received comments on the draft policy statement from the

following individuals or organizations:

1. Michigan Department of Commerce

2. Citizens Awareness Network

3. Mary P. Sinclair

4. Detroit Edison Company

5. Committee for a Safe Energy Future

6. Jon Block

7. Nuclear Energy Institute

8. Yankee Atomic Electric Company

9. Virginia Power Company

10. New England Coalition on Nuclear Pollution

11. Winston & Strawn

12. Consolidated Edison Company

13. Maryland Department of the Environment

14. TU Electric Company

The public interest group, individual commenters, and one State

oppose allowing any withdrawals from decommissioning trust funds before

the NRC approves a licensee's decommissioning plan, a procedure that

this final rule has discontinued. The other commenters generally

supported the draft policy statement, although they disagreed with

certain provisions or took issue with the need for it. Specific

comments and observations, and the NRC analysis of and response to

them, are discussed below.

Specific Comments

Comment 1. The trust agreements may need to be modified to include

low-level radioactive waste storage and disposal (LLW) and interim

spent fuel storage as allowable decommissioning costs when these costs

are incurred as part of additional, temporary facilities at particular

sites. LLW disposal costs, in particular, should be able to be paid

from the decommissioning waste fund

[[Page 39293]]

without waiting 60 days for NRC approval. Provisions should be included

for decommissioning nonradioactive structures associated with the

reactor (Commenters 1 and 4).

Response. The policy statement and this rule were not intended to

address this issue. This issue is being addressed separately (see SECY

95-223; September 1, 1995). As provided in 10 CFR 50.75, financial

assurance for decommissioning includes the cost of disposal of LLW

associated with reactor decommissioning. If a temporary facility is

built to store LLW under the Part 50 reactor license, the trust

agreement should have been structured to include these costs. Although

the NRC definition of decommissioning excludes interim storage of spent

reactor fuel, a licensee is required to provide for the cost of interim

spent fuel storage under 10 CFR 50.54(bb).

With respect to the issue of waiving the 60-day NRC approval period

for withdrawals to pay for LLW shipments, this final rule eliminates

the procedure to which this comment referred.

Comment 2. The NRC should not allow decommissioning trust fund

withdrawals before an environmental assessment is performed while the

reactor licensee has a possession-only license because: (1) It will

allow large-scale decommissioning activities without a resident NRC

inspector on-site during the removal of irradiated components; (2) it

is inconsistent with the mandate of the NRC, which is to implement a

submitted, reviewed, publicly evaluated, and approved decommissioning

plan before large-scale decommissioning activities begin; (3) health

and safety of the workers and the public can not be adequately served

by the experimental process of the component removal process, and (4)

existing NRC regulations state that a licensee may only conduct limited

activities prior to approval of the decommissioning plan (e.g.,

decontamination, minor component disassembly, shipment and storage of

spent fuel). Reasonable interpretation of the rules does not require

expansion of 10 CFR 50.59 and/or activities permitted under a license

(Commenters 2, 3, 5, 6, and 10).

There could be insufficient financial resources remaining to

decommission Nuclear Power Plants thus, creating a potential burden

on the State and, serious impairment of radioactive material

licensee's ability to complete decommissioning. Most existing

decommissioning `certifications and funding plans' are generally

acknowledged by the NRC to already be severely UNDERFUNDED. This

rule would exacerbate that situation (Commenter 13).

Response. This final rule addresses the process that licensees are

to use for post-shutdown decommissioning activities, as well as the

limits on the amounts to be withdrawn from decommissioning trust funds.

By permitting a licensee to perform certain decommissioning

activities and to withdraw funds for those activities through use of

the PSDAR submittal process required in the final rule will allow the

licensee to reduce its overall decommissioning costs by taking

advantage of lower low-level radioactive waste disposal costs. This

will benefit the licensee and its ratepayers without adversely

affecting public health and safety.

Comment 3. The NRC should develop a similar policy for operating

plants and should allow licensees to withdraw decommissioning trust

funds to dispose of structures and equipment no longer being used for

operating plants (Commenters 7, 8 (by reference), and 14).

Footnote 2 of the policy statement should be revised to clarify

that the policy statement does not apply ``to licensee withdrawals from

decommissioning funds for operating plants'' rather than stating that

the policy statement does not apply ``to licensees with operating

nuclear reactors'' (Commenter 11).

Response. The NRC has concluded that allowing decommissioning trust

fund withdrawals for disposals by nuclear power plants that continue to

operate is not warranted. These activities are more appropriately

considered operating activities and should be financed in that way.

Footnote 2 is not included in this final rule.

Comment 4. The policy statement may become obsolete if the NRC

adopts a new definition of decommissioning as proposed on February 2,

1994 (59 FR 4868). This definition states, ``Decommissioning means to

remove a facility or site safely from service and reduce residual

radioactivity to a level that permits use 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.''

To avoid obsolescence of the policy statement as a result of changes in

the definition of decommissioning, the commenters recommend replacing

all references to release of the site for unrestricted use with

``decommissioning of the site consistent with the definition in

Sec. 50.2'' (Commenters 7, 8 (by reference), and 11).

Response. The NRC agrees with this recommendation and has changed

this final rule accordingly.

Comment 5. Two commenters disagree with a statement in the draft

policy statement, ``If a licensee of a permanently shut down facility

spends decommissioning trust funds on legitimate decommissioning

activities, the timing of these expenditures, either before or after

NRC approves a licensee's decommissioning plan, should not adversely

affect public health and safety, provided adequate funds are maintained

to restore the facility to a safe storage configuration in case

decommissioning activities are interrupted unexpectedly'' (Commenter

7's emphasis). The commenters state that maintaining a viable SAFSTOR

option beyond plan approval should not be required for cases where

another option has been approved by NRC (Commenters 7 and 8).

The draft policy statement misuses the term ``SAFSTOR'' to mean

maintenance of a site in a safe storage condition prior to receipt of

Decommissioning Plan approval and commencement of decommissioning

rather than a specific decommissioning alternative defined in NRC

regulations (Commenters 11 and 14).

Response. Commenter 7 has misinterpreted the intent of this

statement. First, this part of the policy statement was drafted to make

the point that any expenditures for decommissioning activities normally

viewed as necessary would not be detrimental to public health and

safety, notwithstanding the timing of these expenditures, unless they

were large enough to prevent the licensee from returning its facility

to a safe storage configuration if the decommissioning process were to

go awry. This is not the same as requiring a licensee to switch from

DECON (immediate dismantlement) to SAFSTOR after the NRC has approved

the licensee's decommissioning plan.

This final rule modifies use of the above-referenced criterion for

decommissioning trust fund withdrawals. However, the rule corrects any

references to SAFSTOR when it means to address the general ability of a

licensee to return its reactor to safe storage while awaiting further

decommissioning.

Comment 6. Criterion 4 is redundant of the other criteria

(Commenters 7 and 8). At a minimum, the statement should indicate that

items (c) and (d) of criterion 4 do not require NRC approval before a

licensee undertakes the proposed activities (Commenter 8). Redundancies

can be eliminated by

[[Page 39294]]

factoring the first three criteria into criterion 4. However, issuance

of the policy statement based on criterion 4 (or the other criteria) is

premature in that the NRC is currently considering more definitive

guidance on acceptable pre-plan-approval decommissioning activities

(Commenter 11).

Response. The NRC agrees that some confusion may have arisen by

including criterion 4 in the policy statement. The NRC included this

criterion to provide guidance on the allowed decommissioning activities

as opposed to the use of decommissioning trust funds for those

activities. Criterion 4 is a quote from Commission guidance in the SRM

of January 14, 1993, and, to some degree, overlaps the other criteria

of the policy statement. The NRC has removed criterion 4 as a separate

criterion in this final rule.

Comment 7. The ``ancillary issue'' in the draft policy statement

should be expanded to include a number of expenses that are paid out of

decommissioning trusts by operating plants well in advance of licensee

preparation and submission of the decommissioning plan. These expenses

include, but are not limited to, trust fees, investment manager fees,

income taxes, and periodic site-specific studies (Commenters 7, 8 (by

reference), 11, and 14).

The policy statement should be revised to state specifically that

if a licensee determines that it meets the criteria for de minimis

withdrawals, it need not request permission from the NRC to use these

funds (Commenter 8).

* * * The section dealing with `de minimis' withdrawals for

developing the decommissioning plan also seems to be outside the

original intent for use of these funds. These withdrawals may seem

to be a minor portion of funds allocated for decommissioning, but it

starts a process that would allow utilities to tap these funds, if

they can fit activities into the definition of decommissioning or

simply request to use these funds for other purposes * * * Other

uses are unacceptable, even if they are subject to prior regulator

approval (Commenter 13).

Response. The intent of the ancillary issue was to allow de minimis

withdrawals from decommissioning trust funds of up to $5 million for

decommissioning-related administrative and other expenses without prior

NRC consent notwithstanding the operating status of the plant. The

final rule has changed this withdrawal amount to up to 3 percent of the

generic amount specified in Sec. 50.75(c). This withdrawal amount is

for purposes of planning for decommissioning (paper studies) and

pertains to licensees of operating as well as permanently shut down

plants. Permission from the NRC to use these funds in de minimis

amounts is unnecessary as long as the amount and purpose of the

withdrawal is documented.

With respect to Commenter 13's concerns, the NRC has specified a

maximum limit for de minimis withdrawals. If a licensee were to exceed

this limit or use funds for non-decommissioning purposes, it would be

subject to NRC enforcement action.

Comment 8. ``* * * The NRC has neither articulated the reasons why

this detailed level of oversight (discussed in the policy statement) is

needed, nor has the NRC provided specific examples of potential waste

and misuse of funds that would warrant their proposed oversight * * *

Absent an appropriate justification for the implementation of this

policy statement, * * * this policy statement represents regulation

without benefit (and that NRC concerns expressed in the policy

statement) are not tangible for decommissioning.'' Thus, the policy

statement should not be issued (Commenter 9).

Also, ``the draft policy statement provides no basis for the NRC's

conclusion that prior NRC review of pre-plan-approval decommissioning

fund expenditures should be required.'' The draft policy statement may

satisfy the Commission's directive to the NRC staff to develop a policy

without including an approval mechanism (Commenter 11).

The draft policy statement is not clear as to the purpose of the

NRC review of decommissioning expenditures before decommissioning plan

approval. The only reason for the review, given in the statement of

policy, is to ensure the health and safety of the general public. There

are other regulatory mechanisms for evaluating the activity for which

the funds are withdrawn without reviewing the actual withdrawal from

the fund. The expenditure of decommissioning trust funds for legitimate

decommissioning activities is an economic and not a safety concern

(Commenter 14).

Response. Although the NRC did not include specific examples of

waste and misuse of funds in the policy statement, as with any

industrial process, costly mistakes can conceivably occur in

decommissioning. The NRC also disagrees that codifying decommissioning

trust fund withdrawals represents regulation without benefit. The NRC

has specifically promulgated decommissioning requirements in 10 CFR

50.82 that include licensee PSDAR submittal process that is intended

for keeping the NRC and public informed of the licensee's planned

decommissioning activities. The intent of the regulations is to require

licensees to maintain the entire amount of funds needed for

decommissioning in a specified assurance mechanism until the funds are

used for their intended decommissioning activities.

The PSDAR is closely tied to a licensee's provision of assurance to

fund the decommissioning activities adequately. Without any NRC

criteria for expenditures before the PSDAR submittal process is

completed, the decommissioning trust fund could become a shell and thus

defeat the purpose of NRC decommissioning funding assurance

regulations. Because of the safety implications of inadequate

decommissioning funds, the NRC believes it has responsibility for

specifying withdrawal rates, notwithstanding the reviews that rate

regulators may perform.

Comment 9. Trust fund withdrawals should also be permitted for

early decommissioning-related activities that, although not themselves

directly reducing radioactivity at the site, will significantly

facilitate such activities when they subsequently occur (Commenters 11

and 12).

Response. In this final rule, withdrawals for planning activities

are allowed before completion of the PSDAR process.

Comment 10. The NRC should clarify footnote 2 to indicate that it

applies to licensees of multi-unit sites. ``So long as usage of trust

withdrawals is identifiable with the shut down reactor and does not

diminish decontamination funding subsequently available for reactors

which are continuing to operate, there is no reason why multi-reactor

licensees should be treated differently than single-reactor licensees

for purposes of this policy statement'' (Commenter 12).

Response. The NRC agrees with this statement. However, footnote 2

is not included in this final rule.

Comment 11. ``If the NRC believes that NRC review and approval of

pre-plan-approval decommissioning expenditures is necessary, it should

act through rulemaking rather than policy * * * Since prior NRC review

of decommissioning fund withdrawals is not currently required, if the

NRC wishes to impose such a requirement, it should initiate rulemaking

to revise its decommissioning regulations accordingly'' (Commenter 11).

Response. This final rule codifies criteria for decommissioning

trust fund withdrawals. Thus, this commenter's concerns have been

addressed.

[[Page 39295]]

Comment 12. ``The `tacit consent' approach for reviewing licensee

expenditure plans is inappropriate'' and unsupported by the reasons the

NRC stated for its policy. By expressly preserving the possibility that

it would take action to prevent a fund withdrawal, the NRC blurs its

asserted distinction between review and approval. Also, it is not clear

that ``tacit consent'' and ``approval'' are legally distinguishable for

purposes of determining whether the NRC is engaged in a ``licensing

action'' that could involve public participation and environmental

review (Commenter 11).

Response. The NRC does not use ``tacit consent'' in this final

rule. Thus, the concerns expressed in this comment should be assuaged.

Comment 13. ``Criterion 1 * * * should be revised to eliminate the

provision that withdrawals must be for activities `that would

necessarily occur under most reasonable decommissioning scenarios.'''

This phrase adds nothing to the preceding provision that the withdrawal

must be for ``legitimate decommissioning activities.'' Because

licensees may face decommissioning expenditures for activities that are

within the NRC's definition of decommissioning but nonetheless unique

to their plant(s), the proposed provision is inappropriately

restrictive (Commenter 11).

Criterion 1 is overly restrictive and burdensome * * * If the

NRC wants to prevent activities that preclude release of the site

for (un)restricted use or are not in support of decommissioning

efforts it should require review of the activity itself through any

of the other available mechanisms such as 10 CFR 50.59 or special

rulemaking * * * The basic premise is that in the event that there

are circumstances or conditions which delay or preclude proceeding

with the decommissioning effort there will be funds available to

place the plant in a storage condition until the event or

circumstance is resolved. Thus, as long as the value of the fund

does not fall below the regulatory required amount in effect at the

time of the request the withdrawal should be allowed. Thus, the only

requirement should be that the utility document that [the] activity

was a legitimate decommissioning activity and the expenditure was

reasonable (Commenter 14).

Response. The NRC did not mean to imply that decommissioning

activities unique to one site would not be eligible for early trust

fund withdrawals. However, because we agree that the phrase,

``legitimate decommissioning activities,'' is sufficient, the NRC has

eliminated the phrase from this final rule.

Comment 14. ``* * * The explicit characterization as a

decommissioning `contingency' of the funding `necessary to maintain the

status quo' could be construed inappropriately to require that

licensees include funding for that purpose in their decommissioning

funds * * * If this criterion is retained, the language regarding

provisions for this contingency should be deleted from the policy

statement'' (Commenter 11).

Response. This terminology has been eliminated in this final rule.

Comment 15. ``It does not seem necessary that NRC approve requests

for the `withdrawal of decommissioning funds for early equipment

removal, prior to approval of the utilities['] decommissioning plans.

This does not seem in concert with the intent of the sample statement

under Background `* * * the fund trustee should only release funds upon

certification that decommissioning is proceeding pursuant to an NRC-

approved plan' '' (Commenter 13).

Response. This final rule does not continue the language in

question.

Comment 16. ``* * * This ruling may be judged as an item of

Compatibility (for Agreement States). Because Maryland regulations,

policies, etc., are expected to closely follow Federal rules and

procedures, we would be forced to adopt and allow our licensees to use

the same principle'' (Commenter 13).

Response. The NRC does not believe that this is an issue of State

compatibility because this final rule only applies to power reactor

licensees, which are exclusively NRC licensees.

Summary of Changes in the Final Rule

Based on the response to comments, a few changes were made in the

final rule. Otherwise, the final rule provisions are the same as those

presented in the ``background'' section under the section titled

proposed amendments. Specific changes made to the proposed rule in the

final rule are summarized as follows:

(1) Section 50.2. The definition of ``major radioactive

components'' has been clarified.

(2) Section 50.36a(a)(1). The amendment has been changed to exclude

systems that are no longer necessary for compliance.

(3) Section 50.59. Proposed Sec. 50.59(e) was eliminated. However,

three of the proposed rule requirements contained in Sec. 50.59(e) were

moved to Sec. 50.82(a) (6) and (7). Placing these requirements in

Sec. 50.82 as overall constraints, rather than specific requirements

for each Sec. 50.59 activity, required modification of the constraint

that the decommissioning activities not result in significantly

increasing decommissioning costs. Thus, the final rule

(Sec. 50.82(a)(6)(iii)) prohibits decommissioning activities that would

result in there no longer being reasonable assurance that adequate

funds will be available to complete decommissioning. In addition, the

final rule requires in Sec. 50.82(a)(7) that changes from those

specified in the PSDAR that would result in significantly increasing

decommissioning costs require written notification to the NRC. The

fourth requirement that the terms of the existing license not be

violated was eliminated. The requirement to consider environmental

impact in the PSDAR, Sec. 50.82(a)(4) was modified to explicitly

require the reasons for concluding that any environmental impacts will

be bounded by existing analysis.

(4) Section 50.71. Section 50.71(e)(4) was revised to permit

nuclear power reactor licensees that have submitted the certifications

required under Sec. 50.82(a)(1) to update the FSAR every 24-months.

(5) Sections 50.82(a)(4)(i) and (6). The licensee is required to

send a copy of the PSDAR and written notification of departure from the

PSDAR to the NRC and affected State(s).

(6) Section 50.82(a)(8)(ii). The phrase ``being permitted to use''

was removed from this section to avoid any incorrect interpretation

that the NRC must explicitly approve decommissioning funding

expenditures.

(7) Section 50.82. Specifies that once the rule is effective, all

power reactor licensees must comply with it. Power reactor licensees

that possess an approved plan as well as licensees that applied for

plan approval before the rule took effect would have the plan

considered a PSDAR submittal, and licensees would be permitted to

perform decommissioning activities in accordance with Sec. 50.82.

However, for power reactor licensees who are involved in subpart G

hearings of 10 CFR part 2, conversion to the new rule will not be

permitted until the hearing process is completed and those licensees

will be subject to any orders arising from these hearings absent any

orders from the Commission.

(8) Section 50.82(a)(1)(iii). Specifies that once the rule is

effective, power reactor licensees whose licenses have been modified,

before the effective date of this rule, to possess but not operate the

facility, will be considered to have submitted the certifications

required in Sec. 50.82(a)(1).

(9) To improve clarity, the first sentence in Sec. 2.1205(d)(1) has

been rewritten from that proposed to that found in the existing

regulation.

(10) To improve clarity and maintain parallelism of requirements,

the last

[[Page 39296]]

sentence of Sec. 51.53(b) has been rewritten from that found in the

proposed rule to correspond with the language found in Sec. 51.95(b) of

the proposed (and existing) rule.

(11) To improve clarity, Sec. 50.82(a)(9)(ii) (B) and (F) have been

rewritten.

Finding of No Significant Environmental Impact: Availability

The Commission has determined under the National Environmental

Policy Act of 1969, as amended, and the Commission's regulations in

subpart A of 10 CFR Part 51, that this rule, if adopted, would not be a

major Federal action significantly affecting the quality of the human

environment and therefore, an environmental impact statement is not

required. The final rule clarifies current decommissioning requirements

for nuclear power reactors in 10 CFR Part 50 and presents a more

efficient, uniform, and understandable process. The Commission has

analyzed the major environmental impacts associated with

decommissioning in the Generic Environmental Impact Statement (GEIS),

NUREG-0586, August 1988,\1\ published in conjunction with the

Commission's final decommissioning rule (53 FR 24018; June 27, 1988).

Insofar as this rule would allow major decommissioning

(dismantlement) to proceed without an environmental assessment, the

environmental impacts of this rule are within the scope of the prior

GEIS. The environmental assessment for the final rule and finding of no

significant impact on which this determination is based are available

for inspection and photocopying for a fee at the NRC Public Document

Room, 2120 L Street NW. (Lower Level), Washington, DC. Single copies of

the environmental assessment and the finding of no significant impact

are available from Carl Feldman, U.S. Nuclear Regulatory Commission,

Washington, DC 20555-0001, (301) 415-6194.

Paperwork Reduction Act Statement

This final rule amends information collection requirements that are

subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et

seq.). These requirements were approved by the Office of Management and

Budget, approval number 3150-0011.

Because the rule will relax existing information collection

requirements, the public burden for this collection of information is

expected to be decreased by 12,202 hours per licensee. This reduction

includes the time required for reviewing instructions, searching

existing data sources, gathering and maintaining the data needed and

completing and reviewing the collection of information. Send comments

on any aspect of this collection of information, including suggestions

for further reducing this burden, to the Information and Records

Management Branch (T-6 F33), U.S. Nuclear Regulatory Commission,

Washington, DC, 20555-0001, or by Internet electronic mail to

[email protected]; and to the Desk Officer, Office of Information and

Regulatory Affairs, NEOB-10202, (3150-0011), Office of Management and

Budget, Washington, DC 20503.

Public Protection Notification

The NRC may not conduct or sponsor, and a person is not required to

respond to, a collection of information unless it displays a currently

valid OMB control number.

Regulatory Analysis

The NRC has prepared a regulatory analysis for this final rule. The

analysis qualitatively examines the costs and benefits of the

alternatives considered by the NRC. In the response to comments, the

NRC concluded that only some minor changes to the draft regulatory

analysis were necessary, corresponding to some minor procedural changes

in the final rule. The regulatory analysis is available for inspection

in the NRC Public Document Room, 2120 L Street NW. (Lower Level),

Washington, DC 20555-0001. Single copies of the analysis may be

obtained from Dr. Carl Feldman, Office of Nuclear Regulatory Research,

U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001,

telephone (301) 415-6194.

Regulatory Flexibility Certification

In accordance with the Regulatory Flexibility Act of 1980 (5 U.S.C.

605(b)), the Commission certifies that this rule will not have a

significant economic impact on a substantial number of small entities.

The final rule modifies requirements for timely decommissioning of

nuclear power plants. The companies that own these plants do not fall

within the scope of the definition of small entities as given in the

Regulatory Flexibility Act or the Small Business Size Standards

promulgated in regulations issued by the Small Business Administration

(13 CFR Part 121). This discussion constitutes the analysis for the

regulatory flexibility certification requirement.

Small Business Regulatory Enforcement Fairness Act

In accordance with the Small Business Regulatory Enforcement

Fairness Act of 1996, the NRC has determined that this action is not a

major rule and has verified this determination with the Office of

Information and Regulatory Affairs, OMB

Backfit Analysis

The Commission has determined that the backfit rule, 10 CFR 50.109,

does not apply to these final amendments, and therefore, a backfit

analysis has not been prepared for this rule. The scope of the backfit

provision in 10 CFR 50.109 is limited to construction and operation of

reactors. These final amendments would only apply to reactors that have

permanently ceased operations and, as such, would not constitute

backfits under 10 CFR 50.109.

List of Subjects

10 CFR Part 2

Administrative practice and procedure, Antitrust, Byproduct

material, Classified information, Environmental protection, Nuclear

materials, Nuclear power plants and reactors, Penalties, Sex

discrimination, Source material, Special nuclear material, Waste

treatment and disposal.

10 CFR Part 50

Antitrust, Classified information, Criminal penalties, Fire

protection, Intergovernmental relations, Nuclear power plants and

reactors, Radiation protection, Reactor siting criteria, Reporting and

recordkeeping requirements.

10 CFR Part 51

Administrative practice and procedure, Environmental impact

statement, Nuclear materials, Nuclear power plants and reactors,

Reporting and recordkeeping requirements.

For reasons set out in the preamble and under the authority of the

Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of

1974, as amended, and 5 U.S.C. 552 and 553, the NRC is adopting the

following amendments to 10 CFR parts 2, 50, and 51.

PART 2-- RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND

ISSUANCE OF ORDERS

1. The authority citation for part 2 continues to read as follows:

Authority: Secs. 161, 181, 68 Stat. 948, 953, as amended (42

U.S.C. 2201, 2231); sec. 191, as amended, Pub. L. 87-615, 76 Stat.

409

[[Page 39297]]

(42 U.S.C. 2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C.

5841); 5 U.S.C. 552.

Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104,

105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42

U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); sec. 114(f), Pub.

L. 97-425 96 Stat. 2213, as amended (42 U.S.C. 10134(f)); sec. 102,

Pub. L. 91-190, 83 Stat 853, as amended (42 U.S.C. 4332); sec. 301,

88 Stat. 1248 (42 U.S.C. 5871). Sections 2.102, 2.103, 2.104, 2.105,

2.721 also issued under secs. 102, 103, 104, 105, 183, 189, 68 Stat.

936, 937, 938, 954, 955, as amended (42 U.S.C. 2132, 2133, 2134,

2135, 2233, 2239). Section 2.105 also issued under Pub. L. 97-415,

96 Stat. 2073 (42 U.S.C. 2239). Sections 2.200-2.206 also issued

under secs. 161b, i, o, 182, 186, 234, 68 Stat. 948-951, 955, 83

Stat. 444, as amended (42 U.S.C. 2201(b), (i), (o), 2236, 2282);

sec. 206, 88 Stat. 1246 (42 U.S.C. 5846). Sections 2.600-2.606 also

issued under sec. 102, Pub. L. 91-190, 83 Stat. 853, as amended (42

U.S.C. 4332). Sections 2.700a, 2.719 also issued under 5 U.S.C. 554.

Sections 2.754, 2.760, 2.770, 2.780, also issued under 5 U.S.C. 557.

Section 2.764 and Table 1A of Appendix C also issued under secs.

135, 141, Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155,

10161). Section 2.790 also issued under sec. 103, 68 Stat. 936, as

amended (42 U.S.C. 2133) and 5 U.S.C. 552. Sections 2.800 and 2.808

also issued under 5 U.S.C. 553. Section 2.809 also issued under 5

U.S.C. 553 and sec. 29, Pub. L. 85 256, 71 Stat. 579, as amended (42

U.S.C. 2039). Subpart K also issued under sec. 189, 68 Stat. 955 (42

U.S.C. 2239); sec. 134, Pub. L. 97-425, 96 Stat. 2230 (42 U.S.C.

10154). Subpart L also issued under sec. 189, 68 Stat. 955 (42

U.S.C. 2239). Appendix A also issued under sec. 6, Pub. L. 91-560,

84 Stat. 1473 (42 U.S.C. 2135). Appendix B also issued under sec.

10, Pub. L. 99-240, 99 Stat. 1842 (42 U.S.C. 2021b et. seq.).

2. Section 2.1201, paragraph (a)(3) is added to read as follows:

Sec. 2.1201 Scope of subpart.

(a) * * *

(3) The amendment of a Part 50 license following permanent removal

of fuel from the Part 50 facility to an authorized facility for

licensees that have previously made declarations related to permanent

cessation of operations and permanent removal of fuel from the reactor

in accordance with Sec. 50.82(a)(1). Subpart L hearings for the license

termination plan amendment, if conducted, must be completed before

license termination.

* * * * *

3. Section 2.1203, paragraph (e) is revised to read as follows:

Sec. 2.1203 Docket; filing; service.

* * * * *

(e) A request for a hearing or petition for leave to intervene must

be served in accordance with Sec. 2.712 and Sec. 2.1205(f) and (R). All

other documents issued by the presiding officer or the Commission or

offered for filing are served in accordance with Sec. 2.712.

4. Section 2.1205, paragraphs (c) through (n) are redesignated as

paragraphs (d) through (o), a new paragraph (c) is added, and newly

designated paragraphs (d), (e)(2), (e)(4), the introductory text of

paragraph (h), (i), the introductory text of paragraph (j), the

introductory text of paragraph (k), (k)(3), the introductory text of

paragraphs (l)(1) and (l)(2) are revised to read as follows:

Sec. 2.1205 Request for a hearing; petition for leave to intervene.

* * * * *

(c) For amendments of Part 50 licenses under Sec. 2.1201(a)(3), a

notice of receipt of the application, with reference to the opportunity

for a hearing under the procedures set forth in this subpart, must be

published in the Federal Register at least 30 days prior to issuance of

the requested amendment by the Commission.

(d) A person, other than an applicant, shall file a request for a

hearing within--

(1) Thirty days of the agency's publication in the Federal Register

of a notice referring or relating to an application or the licensing

action requested by an application, which must include a reference to

the opportunity for a hearing under the procedures set forth in this

subpart. With respect to an amendment described in Sec. 2.1201(a)(3),

other than the one to terminate the license, the Commission, prior to

issuance of the requested amendment, will follow the procedures in

Sec. 50.91 and Sec. 50.92(c) to the extent necessary to make a

determination on whether the amendment involves a significant hazards

consideration. If the Commission finds there are significant hazards

considerations involved in the requested amendment, the amendment will

not be issued until any hearings under this paragraph are completed.

(2) If a Federal Register notice is not published in accordance

with paragraph (d)(1), the earliest of--

(i) Thirty days after the requester receives actual notice of a

pending application, or

(ii) Thirty days after the requester receives actual notice of an

agency action granting an application in whole or in part, or

(iii) One hundred and eighty days after agency action granting an

application in whole or in part.

(e) * * *

(2) How the interests may be affected by the results of the

proceeding, including the reasons why the requestor should be permitted

a hearing, with particular reference to the factors set out in

paragraph (h) of this section;

* * * * *

(4) The circumstances establishing that the request for a hearing

is timely in accordance with paragraph (d) of this section.

* * * * *

(h) In ruling on a request for a hearing filed under paragraph (d)

of this section, the presiding officer shall determine that the

specified areas of concern are germane to the subject matter of the

proceeding and that the petition is timely. The presiding officer also

shall determine that the requestor meets the judicial standards for

standing and shall consider, among other factors--

* * * * *

(i) If a hearing request filed under paragraph (b) of this section

is granted, the applicant and the NRC staff shall be parties to the

proceeding. If a hearing request filed under paragraph (c) or (d) of

this section is granted, the requestor shall be a party to the

proceeding along with the applicant and the NRC staff, if the NRC staff

chooses or is ordered to participate as a party in accordance with

Sec. 2.1213.

(j) If a request for hearing is granted and a notice of the kind

described in paragraph (d)(1) previously has not been published in the

Federal Register, a notice of hearing must be published in the Federal

Register stating--

* * * * *

(k) Any petition for leave to intervene must be filed within 30

days of the date of publication of the notice of hearing. The petition

must set forth the information required under paragraph (e) of this

section.

* * * * *

(3) Thereafter, the petition for leave to intervene must be ruled

upon by the presiding officer, taking into account the matters set

forth in paragraph (h) of this section.

* * * * *

(l)(1) A request for a hearing or a petition for leave to intervene

found by the presiding officer to be untimely under paragraph (d) or

(k) of this section will be entertained only upon determination by the

Commission or the presiding officer that the requestor or petitioner

has established that--

* * * * *

(2) If the request for a hearing on the petition for leave to

intervene is found to be untimely and the requestor or petitioner fails

to establish that it otherwise should be entertained on the paragraph

(l)(1) of this section, the request or petition will be treated as a

[[Page 39298]]

petition under Sec. 2.206 and referred for appropriate disposition.

* * * * *

5. Section 2.1211, paragraph (b) is revised to read as follows:

Sec. 2.1211 Participation by a person not a party.

* * * * *

(b) Within 30 days of an order granting a request for a hearing

made under Sec. 2.1205 (b)-(d) or, in instances when it is published,

within 30 days of notice of hearing issued under Sec. 2.1205(j), the

representative of the interested State, county, municipality, or an

agency thereof, may request an opportunity to participate in a

proceeding under this subpart. The request for an opportunity to

participate must state with reasonable specificity the requestor's

areas of concern about the licensing activity that is the subject

matter of the proceeding. Upon receipt of a request that is filed in

accordance with these time limits and that specifies the requestor's

areas of concern, the presiding officer shall afford the representative

a reasonable opportunity to make written and oral presentations in

accordance with Secs. 2.1233 and 2.1235, without requiring the

representative to take a position with respect to the issues.

Participants under this subsection may notice an appeal of an initial

decision in accordance with Sec. 2.1253 with respect to any issue on

which they participate.

* * * * *

6. Section 2.1213 is revised to read as follows:

Sec. 2.1213 Role of the NRC staff.

If a hearing request is filed under Sec. 2.1205(b), the NRC staff

shall be a party to the proceeding. If a hearing request is filed under

Sec. 2.1205 (c) or (d), within 10 days of the designation of a

presiding officer pursuant to Sec. 2.1207, the NRC staff shall notify

the presiding officer whether or not the staff desires to participate

as a party to the adjudication. In addition, upon a determination by

the presiding officer that the resolution of any issue in the

proceeding would be aided materially by the staff's participation in

the proceeding as a party, the presiding officer may order or permit

the NRC staff to participate as a party with respect to that particular

issue.

7. Section 2.1233, paragraph (c) is revised to read as follows:

Sec. 2.1233 Written presentations; written questions.

* * * * *

(c) In a hearing initiated under Sec. 2.1205(d), the initial

written presentation of a party that requested a hearing or petitioned

for leave to intervene must describe in detail any deficiency or

omission in the license application, with references to any particular

section or portion of the application considered deficient, give a

detailed statement of reasons why any particular sections or portion is

deficient or why an omission is material, and describe in detail what

relief is sought with respect to each deficiency or omission.

* * * * *

8. Section 2.1263 is revised to read as follows:

Sec. 2.1263 Stays of NRC staff licensing actions or of decisions of a

presiding officer or the Commission pending hearing or review.

Applications for a stay of any decision or action of the

Commission, a presiding officer, or any action by the NRC staff in

issuing a license in accordance with Sec. 2.1205(m) are governed by

Sec. 2.788, except that any request for a stay of staff licensing

action pending completion of an adjudication under this subpart must be

filed at the time a request for a hearing or petition to intervene is

filed or within 10 days of the staff's action, whichever is later. A

request for a stay of a staff licensing action must be filed with the

adjudicatory decisionmaker before which the licensing proceeding is

pending.

PART 50--DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION

FACILITIES

9. The authority citation for Part 50 continues to read as follows:

Authority: Secs. 102, 103, 104, 105, 161, 182, 183, 186, 189, 68

Stat. 936, 937, 938, 948, 953, 954, 955, 956, as amended, sec. 234,

83 Stat. 1244, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2201,

2232, 2233, 2236, 2239, 2282); secs. 201, as amended, 202, 206, 88

Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846).

Section 50.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat.

2951 (42 U.S.C. 5851). Section 50.10 also issued under secs. 101,

185, 68 Stat. 955, as amended (42 U.S.C. 2131, 2235); sec. 102 Pub.

L. 91-190, 83 Stat. 853 (42 U.S.C. 4332). Sections 50.13, 50.54(dd),

and 50.103 also issued under sec. 108, 68 Stat. 939, as amended (42

U.S.C. 2138). Sections 50.23, 50.35, 50.55, and 50.56 also issued

under sec. 185, 68 Stat. 955 (42 U.S.C. 2235). Sections 50.33a,

50.55a and Appendix Q also issued under sec. 102, Pub. L. 91-190, 83

Stat. 853 (42 U.S.C. 4332). Sections 50.34 and 50.54 also issued

under sec. 204, 88 Stat. 1245 (42 U.S.C. 5844). Sections 50.58,

50.91, and 50.92 also issued under Pub. L. 97-415, 96 Stat. 2073 (42

U.S.C. 2239). Section 50.78 also issued under sec. 122, 68 Stat. 939

(42 U.S.C. 2152). Sections 50.80-50.81 also issued under sec. 184,

68 Stat. 954, as amended (42 U.S.C. 2234). Appendix F also issued

under sec. 187, 68 Stat. 955 (42 U.S.C. 2237).

10. Section 50.2, the terms ``Certified fuel handler,'' ``Major

decommissioning activity,'' ``Major radioactive components,''

``Permanent cessation of operations,'' and ``Permanent fuel removal,''

are added to read as follows:

Sec. 50.2 Definitions.

* * * * *

Certified fuel handler means, for a nuclear power reactor facility,

a non-licensed operator who has qualified in accordance with a fuel

handler training program approved by the Commission.

* * * * *

Major decommissioning activity means, for a nuclear power reactor

facility, any activity that results in permanent removal of major

radioactive components, permanently modifies the structure of the

containment, or results in dismantling components for shipment

containing greater than class C waste in accordance with Sec. 61.55 of

this chapter.

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.

* * * * *

Permanent cessation of operation(s) means, for a nuclear power

reactor facility, a certification by a licensee to the NRC that it has

permanently ceased or will permanently cease reactor operation(s), or a

final legally effective order to permanently cease operation(s) has

come into effect.

Permanent fuel removal means, for a nuclear power reactor facility,

a certification by the licensee to the NRC that it has permanently

removed all fuel assemblies from the reactor vessel.

* * * * *

11. Section 50.4, paragraphs (b)(8) and (b)(9) are added to read as

follows:

Sec. 50.4 Written communications.

* * * * *

(b) * * *

(8) Certification of permanent cessation of operations. The

licensee's certification of permanent cessation of operations, pursuant

to Sec. 50.82(a)(1), must state the date on which operations have

ceased or will cease, and the signed and notarized original must be

submitted to: The Nuclear Regulatory Commission, Document Control Desk,

Washington, DC 20555-0001.

(9) Certification of permanent fuel removal. The licensee's

certification of

[[Page 39299]]

permanent fuel removal, pursuant to Sec. 50.82(a)(1), must state the

date on which the fuel was removed from the reactor vessel and the

disposition of the fuel, and the signed and notarized original must be

submitted to: The Nuclear Regulatory Commission, Document Control Desk,

Washington, DC 20555-0001.

* * * * *

12. Section 50.36, paragraphs (c)(6) and (c)(7) are redesignated as

(c)(7) and (c)(8) and new paragraphs (c)(6) and (e) are added to read

as follows:

Sec. 50.36 Technical specifications.

* * * * *

(c) * * *

(6) Decommissioning. This paragraph applies only to nuclear power

reactor facilities that have submitted the certifications required by

Sec. 50.82(a)(1) and to non-power reactor facilities which are not

authorized to operate. Technical specifications involving safety

limits, limiting safety system settings, and limiting control system

settings; limiting conditions for operation; surveillance requirements;

design features; and administrative controls will be developed on a

case-by-case basis.

* * * * *

(e) The provisions of this section apply to each nuclear reactor

licensee whose authority to operate the reactor has been removed by

license amendment, order, or regulation.

13. Section 50.36a is revised to read as follows:

Sec. 50.36a Technical specifications on effluents from nuclear power

reactors.

(a) In order to keep releases of radioactive materials to

unrestricted areas during normal conditions, including expected

occurrences, as low as is reasonably achievable, each licensee of a

nuclear power reactor will include technical specifications that, in

addition to requiring compliance with applicable provisions of

Sec. 20.1301 of this chapter, require that:

(1) Operating procedures developed pursuant to Sec. 50.34a(c) for

the control of effluents be established and followed and that the

radioactive waste system, pursuant to Sec. 50.34a, be maintained and

used. The licensee shall retain the operating procedures in effect as a

record until the Commission terminates the license and shall retain

each superseded revision of the procedures for 3 years from the date it

was superseded.

(2) Each licensee shall submit a report to the Commission annually

that specifies the quantity of each of the principal radionuclides

released to unrestricted areas in liquid and in gaseous effluents

during the previous 12 months, including any other information as may

be required by the Commission to estimate maximum potential annual

radiation doses to the public resulting from effluent releases. The

report must be submitted as specified in Sec. 50.4, and the time

between submission of the reports must be no longer than 12 months. If

quantities of radioactive materials released during the reporting

period are significantly above design objectives, the report must cover

this specifically. On the basis of these reports and any additional

information the Commission may obtain from the licensee or others, the

Commission may require the licensee to take action as the Commission

deems appropriate.

(b) In establishing and implementing the operating procedures

described in paragraph (a) of this section, the licensee shall be

guided by the following considerations: Experience with the design,

construction, and operation of nuclear power reactors indicates that

compliance with the technical specifications described in this section

will keep average annual releases of radioactive material in effluents

and their resultant committed effective dose equivalents at small

percentages of the dose limits specified in Sec. 20.1301 and in the

license. At the same time, the licensee is permitted the flexibility of

operation, compatible with considerations of health and safety, to

assure that the public is provided a dependable source of power even

under unusual conditions which may temporarily result in releases

higher than such small percentages, but still within the limits

specified in Sec. 20.1301 of this chapter and in the license. It is

expected that in using this flexibility under unusual conditions, the

licensee will exert its best efforts to keep levels of radioactive

material in effluents as low as is reasonably achievable. The guides

set out in appendix I, provide numerical guidance on limiting

conditions for operation for light-water cooled nuclear power reactors

to meet the requirement that radioactive materials in effluents

released to unrestricted areas be kept as low as is reasonably

achievable.

14. Section 50.36b is revised to read as follows:

Sec. 50.36b Environmental conditions.

Each license authorizing operation of a production or utilization

facility, and each license for a nuclear power reactor facility for

which the certification of permanent cessation of operations required

under Sec. 50.82(a)(1) has been submitted, which is of a type described

in Sec. 50.21(b) (2) or (3) or Sec. 50.22 or is a testing facility, may

include conditions to protect the environment to be set out in an

attachment to the license which is incorporated in and made a part of

the license. These conditions will be derived from information

contained in the environmental report and the supplement to the

environmental report submitted pursuant to Secs. 51.50 and 51.53 of

this chapter as analyzed and evaluated in the NRC record of decision,

and will identify the obligations of the licensee in the environmental

area, including, as appropriate, requirements for reporting and keeping

records of environmental data, and any conditions and monitoring

requirement for the protection of the nonaquatic environment.

15. Section 50.44, paragraph (a), is revised to read as follows:

Sec. 50.44 Standards for combustible gas control system in light-

water-cooled power reactors.

(a) Each boiling or pressurized light-water nuclear power reactor

fueled with oxide pellets within cylindrical zircaloy or ZIRLO

cladding, must, as provided in paragraphs (b) through (d) of this

section, include means for control of hydrogen gas that may be

generated, following a postulated loss-of-coolant acci

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