# Decommissioning of Nuclear Power Reactors

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URL: https://www.frixlaw.com/law-library/documents/fr%3A96-19031

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** July 29, 1996
- **Citation:** 61 FR 39278

## Text

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

[[Page 39280]]

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

[[Page 39281]]

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

[[Page 39282]]

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

[[Page 39283]]

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

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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

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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 de

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A96-19031. Public record. Not legal advice.