Nuclear Energy Institute; Denial of Petition for Rulemaking

NUCLEAR REGULATORY COMMISSION

10 CFR Parts 30, 40, and 70

[Docket No. PRM-30-61]

Nuclear Energy Institute; Denial of Petition for Rulemaking

AGENCY: Nuclear Regulatory Commission.

ACTION: Denial of petition for rulemaking.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is denying a

petition for rulemaking (PRM-30-61) submitted by the Nuclear Energy

Institute (NEI). The petitioner requested that the NRC amend its

regulations governing timeliness of decommissioning of sites and

separate buildings or outdoor areas. Because the petitioner has

provided no new significant information that would call into question

the basis for the requirements in these regulations, the NRC denies the

petition. To achieve the intent of the petition, NRC will develop

guidance to clarify specific criteria to review licensee requests for

alternate schedules for initiation of decommissioning of inactive

contaminated sites.

ADDRESSES: Copies of the PRM, the public comments received, and the

NRC's letter to the petitioner are available for public inspection or

copying in the NRC Public Document Room, 2120 L Street NW, (lower

level), Washington, DC 20555-0001.

FOR FURTHER INFORMATION CONTACT: Anthony DiPalo, telephone (301) 415-

6191, e-mail, [email protected], of the Office of Nuclear Material Safety and

Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-

0001.

SUPPLEMENTARY INFORMATION:

The Petition

On August 21, 1996 (61 FR 43193), the NRC published a notice of

receipt of a PRM filed by the NEI. The petitioner requested that NRC

amend its regulations in 10 CFR Parts 30, 40, and 70 to provide for an

alternative which could result in the delay of decommissioning of a

site, separate building, or outdoor area where principal activities

have not been conducted for at least 24 months, and the site, separate

building, or outdoor area is unsuitable for unrestricted release in

accordance with NRC requirements. Specifically, the petitioner

requested that inactive facilities be allowed to go on ``standby''

status until economic conditions in its industry improved. The

petitioner believes the requested changes are necessary because the

rule, as written, has the potential to . . . ``eliminate important

components from the nuclear industry infrastructure.'' The petitioner

also asserted as a basis for its petition that NRC's regulations were

not intended to give it jurisdiction over the commercial aspects of a

licensee's activities and, therefore, NRC regulations should not impose

restrictions on facilities or sites that have the potential to impact

commercial decisions. Further, the petitioner believes that NRC's

current regulation is not necessary given the cohesiveness and maturity

of the industry today.

Public Comments on the Petition

The notice of receipt of the PRM invited interested persons to

submit comments. The comment period closed on November 4, 1996. NRC

received comment letters from the following five organizations: (1)

Kennecott Energy; (2) Siemens Power Corporation; (3) Wyoming Mining

Association; (4) National Mining Association; and (5) Babcock & Wilcox,

Naval Nuclear Fuel Division. All five commenters supported the PRM.

They supported amending the Timeliness Rule to permit facilities to

postpone decommissioning and enter a ``standby'' mode in which

facilities would be monitored and maintained for a predetermined time

period, pending future operation.

[[Page 18834]]

The comments are summarized as follows:

1. All five commenters argued that the Timeliness Rule, as

currently written, impacts on a licensee's ability to make commercial

decisions that allow it to compete in the open market. The commenters

believe that any company that has a valid NRC license and operates

within the conditions of the license should have the right to decide

when to start and stop operations, and when to place buildings or

facilities in standby mode, rather than being forced to begin

decommissioning.

2. Three commenters expressed the opinion that NRC's rationale

requiring decommissioning after 24 months of inactivity is no longer

practical, given the cohesiveness and maturity of today's nuclear

industry. The commenters stated that NRC previously rejected a proposal

for a standby mode because of the potential for site abandonment as a

result of changes in a company's financial status, corporate takeover,

or bankruptcy. The commenters believe that the nuclear industry has now

matured and that poorly financed and poorly managed companies are no

longer in business. The remaining companies are said to be stable and

willing and able to assume the costs associated with keeping facilities

in standby mode.

3. Two commenters argued that the Timeliness Rule is regulation by

exception. These commenters believe that it would be better to include

generic provisions in the regulations for maintaining a licensed

facility in standby mode, rather than approving individual requests for

postponement of the initiation of decommissioning.

4. One commenter argued the petitioner's case that the lack of a

standby provision in the Timeliness Rule has the potential to eliminate

important components from the nuclear industry. It is believed that

these components and facilities may be needed in future years to

support continuing operation and potential industry expansion. The

commenter indicated that fuel cycle facilities operate in a constantly

changing economic environment. Mines and mills that have been inactive

for years are now beginning to start up because of improved economic

conditions. The operating status of conversion facilities and

enrichment plants has fluctuated in response to international policy

and the influx of low-enriched products from countries of the former

Soviet Union. Commercial facilities that support the armed forces must

be prepared to respond if called on.

Reasons for Denial

NRC is denying the petition for the following reasons:

1. NRC believes the current language of the Timeliness Rule is

sufficiently flexible to accommodate the petitioner's concerns because

it currently contains provisions for granting licensees alternative

time schedules for initiating decommissioning. NRC also believes that

clarification of the specific acceptance criteria for granting

alternative schedules could be achieved through the development of

guidance.

2. NRC believes that the amendments requested by the petitioner

would conflict with the primary purpose of the Timeliness Rule to

effectively and efficiently clean up contaminated sites that pose a

potential threat to public health and safety. The Timeliness Rule was

promulgated in July 1994 to address those situations where

decommissioning of contaminated sites was unreasonably delayed. The 24-

month inactivity criterion related to decontamination of unused sites,

separate buildings, or outdoor areas provides assurance that the

licensee will undertake timely cleanup of inactive portions of its site

while it is financially solvent.

3. Although the petitioner argues that the nuclear industry has

matured and recognizes its responsibilities, that troubled licensees

are no longer in business, and that NRC regulations provide adequate

decommissioning funding assurance and transfer of ownership

requirements, the NRC's experience with inactive materials licensees

indicates the need for the timeliness provisions. In fact, since the

Timeliness Rule became effective in 1994, approximately 25 material

licensees have filed for bankruptcy. Past history with NRC materials

facility decommissioning indicates that the approach taken through the

Timeliness Rule is the appropriate one.

4. NRC believes that the petitioner is incorrect in asserting that

the Timeliness Rule, as currently written, has the potential to

eliminate important components from the nuclear industry

infrastructure. For case-specific situations, delay of decommissioning

is permitted by the current rule if the Commission determines that this

relief would not be detrimental to the public health and safety and

would otherwise be in the public interest. Licensees must describe why

their request to delay decommissioning is in the public interest.

Therefore, if the licensee can satisfactorily demonstrate that a

proposed delay in decommissioning is not detrimental to public health

and safety and is in the public interest, the delay would be granted

and there should be no adverse impact on the nuclear industry

infrastructure.

Since the effective date of the Timeliness Rule, August 15, 1994,

fewer than 30 licensees out of several thousand have asked to delay

decommissioning activities and only three of these requests were

initially denied. Each denial resulted from a lack of adequate

justification. After discussions with the licensees, two of these three

requests were withdrawn and one request was approved. Based on the

relatively few requests received to date, the NRC concludes that the

Timeliness Rule, as written, is not overly restrictive. Further, since

NRC has not denied any request to delay decommissioning that was

supported with adequate justification, it appears that the rule is not

having an adverse impact on licensees' commercial decisions, as

suggested by the petitioner.

5. The Generic Environmental Impact Statement (GEIS), entitled

``Final Generic Environmental Impact Statement on Decommissioning of

Nuclear Facilities'' (NUREG-0586), prepared in connection with the 1988

modifications to the decommissioning regulations recommended prompt

dismantlement of material facilities once they had permanently ceased

operation. The GEIS concluded that decommissioning can be accomplished

safely and at a reasonable cost shortly after cessation of activities.

Further, the GEIS concluded that immediate decommissioning following

cessation of activities eliminates the potential problems that may

result from an increasing number of contaminated sites, and the

potential health, safety, regulatory, and economic problems associated

with maintaining an inactive nuclear facility. The Timeliness Rule

imposed certain ``action-forcing'' requirements to ensure that the

recommendations in the GEIS were met.

In conclusion, no new significant information has been provided by

the petitioner that calls into question the basis for the requirements

of the Timeliness Rule. The intent of the petition will be achieved by

developing guidance on the specific criteria for reviewing licensee

request submittals for alternate schedules for the initiation of

decommissioning of inactive contaminated sites. Obviously, if the

petitioner believes that the final guidance documents and their

implementation do not adequately address the intent of the petition,

the petitioner has the option of resubmitting

[[Page 18835]]

the petition. For the reasons cited in this document, NRC denies the

petition.

Dated at Rockville, Maryland, this 31st day of March, 1999.

For the Nuclear Regulatory Commission.

Frank J. Miraglia,

Acting Executive Director for Operations.

[FR Doc. 99-9536 Filed 4-15-99; 8:45 am]

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