ML20055J443
| ML20055J443 | |
| Person / Time | |
|---|---|
| Site: | 07000008 |
| Issue date: | 07/25/1990 |
| From: | Swanson D Battelle Memorial Institute |
| To: | |
| Shared Package | |
| ML20055H740 | List: |
| References | |
| NUDOCS 9008020268 | |
| Download: ML20055J443 (22) | |
Text
_ _ _ _
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMISSION' In the Matter of BATTELLE MEMORIAL INSTITUTE 1 Docket No. 70-8 h
License No. S M-7
)
REQUEST FOR EXEMPTION 1
RE0 VESTED ACTION i
Batt111e Memorial Institute (Battelle), holder of HRC License No. SNM-7, hereby requests the Connission to grant exemp(tions to Battelle from therequ l
request is to permit Battelle to utilize a government statement of intent to partially satisfy its requirement to provide financial assurance of its-1 ability to decommission its facilities.
Battelle submits that, whereas the-referenced regulations do not specifically provide for a private licensee to-rely on a government statement.of intent, such reliance is entirely consistent with NRC's regulatory scheme.
Further, issuance of the requested exemptions is authorized by law and would not endanger life or property or the common defense and security and is in the public interest.
STATEMENT OF BATTELLE'S CASE FACTUAL BACKGROUND Battelle holds NRC License No. SNM-7, authorizing it to possess and. utilize special nuclear and byproduct material.
Pursuant to-10 CFR 70.25 and 30.35, Battelle has the option of-submitting either a complete decommissioning-funding plan or a certification of financial assurance in the amounts-i specified in those regulations, by July 27, 1990.
By virtue of.the quantity of radioactive material authorized under the license, Battelle is required to provide financial assurance in the amount of $750,000 for each of the two i
l Parts under which it is licensed, or a total of $1.5 million.
1 A substantial amount of the research performed by Battelle in Ohio requiring the use 'of radioactive material was done on behalf of.the U.S. Department of Energy (DOE).
However, because the research facilities are privately owned by l
Battelle, as well as soue radioactive material, Battelle was obligated to hold E
a materials license, and could not be exempted from licensing as are many other DOE contractors pursuant to 10 CFR 70.11(a) and 30.12.
9008020268 900725 ~
PDR ADOCK 07000008 C
g ' e
- DOE has assumed responsibility for 85 90% of the cost of decomrissioning and decontaminating Battelle's facilities, as evidenced in the_ attached letter from Edward G. Cumesty Acting Manager of the Chicago Operations Office, DOE, dated July 24, 1990. The precise percentage is to be negotiated between DOE and Battelle.
In support of this obligation, DOE and other Federal Government clients have previously paid several hundred thousand dollars into a trust a
fund to be used exclusively for decontamination of Battelle facilities.
However, DOE has indicated that it is not presently prepared to pay additional l
funds into a trust solely for the purpose of satisfyinti Batte11e's financial assurance certification obligation to the NRC, since, in DOE's-view, a f
statement of its commitment to provide funds for 85-90% of the cost of-cleanup i
should be sufficient given the NRC's willingness to honor a federal, state or i
local 30.35(government statement of intent under sections.70.25(f)(4) and l
f)(4) for a government licensee. As a result, Battelle is faced with.a 1
near ters obli i
certification,gation to assure $1.5 million in funds as part of its and an amount much larger than that when it next renews its license, and yet it is not able to rely on the party substantially responsible for the cost of decommissioning, the Federal Governmcr,t. based on the current i
wording of the NRC Regulations.
1 i
Battelle is satisfying the immediate financial assurance certification requirement by utilizing its existing Goverr, ment Trust and its Industrial r
Trust, which were established to support decommissioning efforts. Those trusts, plus a supplemental letter of credit by Battelle from a bank, totals the $1.5 million certification level.
If this exemption were granted, Battelle would propose to utilize a DOE Statement of Intent to satisfy 85-90%
of the certification requirement, with the Government Trust available to receive funds from DOE. Battelle would then extinguish its letter of credit, and utilize the Industrial Trust to satisfy the remaining 10-15% of the certification funding. Battelle would continue to rely on the COE Statement of Intent to satisfy 85-90% of the cost of the ultimate decommissioning funding plan, to be submitted later.
LEGAL BASIS FOR GRANTING EXEMPTIONS The Commission is authorized to grant a specific exemption from the requirements in Parts 70 and 30 if it detemines that doing so is
- 1) authorized by law, 2) will not endanger life or property or the common defense and security), and 3) is otherwise in the public interest.10 CFR 70.14(a) and 30.11(a. Based on the discussion below, Battelle submits that the Commission already implicitly made these findings when it issued its-decommissioning regulations permitting government licensees to use a statement of intent to obtain funds for decommissioning when necessary.
Issuance Of The Exemptions Is Authorized By Law The NRC regulations currently pemit a government licensee to promise to utilize its budgeting process to provide assurance that it will support decommissioning of its licensed facilities. 10 CFR 70.25(f)(4) and 30.35(f) (4). This is true regardless of whether the licensee has the resources of the entire Federal budget, or is merely a small local government with a small tax base. The Commission declared that it was authorized to
promulgate these regulations pursuant to the Atomic Energy Act of 1954, as amended. 53 Fed. Rea< 24018, 24044, 24055 (June 27, 1988).
Included in these authorized regulations are subsections of the referenced requirements which even allow a private statement to satisfy the 'inancial assurance requirement (i.e. a parent company guarantee).
Batte11e's requested exemption would not expand on the scope of the regulations to any substantive extent, since the requested action would merely l=
entail having the NRC exercise its discretion to consider a DOE statement of intent to be a satisfactory method of providing financf al assurance on behalf of a private licensee.
The same rationale for finding that statutory authority exists for issuing the referenced regulations in connection with a federal, state or local government licensee, or with a private (parent) company guarantee, would apply equally to a government guarantee made on behalf of a private licensee. Accordingly, the legal basis exists for granting the exemption.
m Issuance Of The Exemptions Will Not Endanger Life Or Property Or The Common
=
Defense And Security And Are Otherwise In The Public Interest In the Supplementary Information accompanying the issuance of the final regulations, the NRC explained the rationale for allowing government licensees f
ability to merely issue a statement of intent, while not permitting private b
licensees to issue their own private statements of intent (when a parent
('
company guarantee is not available).
TheNRCstatedthat"[t]hedifferent treatment arises because there is reasonable assurance that the appropriate government entity, which has the power of taxation, will provide adequate funding in the future to decomission the facility (June in a manner which protects j.
public health...." 53 Fed. Rea. 24018, 24034 27,1988).
t There is no meaningful distinction between the scenario contemplated by the NRC % the referenced ouote, and Batte11e's situation where the United States Government is obligated to pay a percentage of the decomissioning of Battelle's facilities.
Indeed, based 7n conversations with the drafters of the regulations, and a close reading of the Supplementary Infomation accompanying the issuance of the final rule, it ap) ears that the NRC simply did not contemplate a situation like Batte11e's, w1ere the Federal Government was obligated to pay a substantial amount of the decommissioning costs of an operation, and yet was not the licensee. The Comission was obviously not concerned about the inherent nature of a private licensee, as contrasted with a public one, for it authorized the use of a private guarantee under certain circumstances (the parent company guarantee).
Rather, the Commission's concern seems to be focused on the financial viability of the guarantor, whether the responsible party is a government entity or a parent of a private company licensee.
Since Batte11e's situation involves a comitment by the Federal Government, there does not seem to be any question of the ability of the guarantor to initiate funding mechanisms to support the commitment to pay approximately 90% of Batte11e's decomissioning costs. Battelle would provide the remaining financial assurance through alternate means which are authorized by 10 CFR 70.25(f) and 30.35(f).
As to the public interest consideration, it is clear that both Congress and the NRC did not intend to place DOE decomissioning obligations, such as that
. ~.
which it has with Battelle, under the control of the NRC. Congress, in promulgating Section 202 of the Energy Reorganization Act of 1974, and the Commission,inissuing10CFR70.11,70.14(c),30.4,and30.11(c), clearly intended to remove DOE from the regulatory authority of the NRC, with four exceptions which are unrelated to this factual situation.
By forcin make actual cash outlays to support a decommissioning funding plan, g DOE to rather than relying on DOE's statement of intent to make funding available for its obligations, NRC would be accomplishing indirectly what Congress and the Commission clearly did not wish to occur directly.
CONCLUSION Based on the discussion above, Battelle concludes that the requested exemptions are authorized by law and will not endanger life or property or the~
common defense and security, and are in the public interest. Accordingly, it is proper and censistent with the existing decommissioning financial' assurance regulatory scheme to grant the requested exemptions.
Respectfully submitted by, hY Sh,-
Otniel T. Swanson, Chief Counsel Energy Systems Group Battelle Memorial Institute 505 King Avenue Columbus, Ohio 43201-2693-(614) 424-7923
i JUL 25 'Se 18:33 FROM USD0E CH OCM PAGE.eet 4
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i 00ptittflertt of Eftetgy I
Chiesgo Operatione ON6ee 9000 South Case Avenue Argonne,INinoio 00 30 i
Jdy 24,1990 l
Dr. Joseph N. Ray troup Vice President and i
General Manager 06D*% rations i
1.-
e.ste 805 King Avenue i
.. Coluebus, Ohio 43201 '
J
Dear Dr. Ray:
i
SUBJECT:
DECONTAMINATION AND DECOMMISSIONING (060) 0F THE SATTELLE MEMORIAL INSTITUTE WEST JEFFERSON AND COLUM8US FACILITIES (W-7405ENG92)
The purpose of this memorandum is to summarize the Department of Energy (DOE) responsibility for the. subject facilities in support of the Battelle-Memorial Institute-(IMI)' request for an exemption to NRC Financial Assurtnce Requirements For Decomeissioning for licensees (10 CFR 70.25).
On April 16, 3H3t IMI entered into Contract No. W-7405 ENG 92 with' the Manhattan E inter District to perform atomic energy research and'.'
development activities. Since that time, EMI has continuously R&D)k at its West Jefferson and Columbus facilities, under performed wor the contract, for the Manhattan Engineer District and its successor
- agencies-AEC, ERDA, and DDE. The IMI/Sovernment relationship was unique and, in many respects, has been similar to that of a 00CO-type arrang'ement. OMI has also used its facilities in the performance of work for other Government agencies and since 1954 for commercial organizations as well, under separate contractual arrangements. The work in support of 00E was an overwhelming majority of the government work.
l On March 17' 1984, 00E Chicago Operations Office (CH) notified IMI'of its.
Intent'to allow the subject contract to expire due to the decrease in the level of activity under the contract and the fact that this ty was no longer justifiable under the new FAR/ DEAR regulations. pe agreement These regulations were to become effective Apr.11 1, 1984, and no new work.was to be placed under the contract unless such work had a completion date no later than August.14,1986 the current expiration date of the contract, Any, subsequent work would be provided for under new, individual contracts awarded-in accordance with~the new FAR/ DEAR acquisition regulations. SMI coincidentally informed CH of its decision to withdraw from any further experiment:1 nuclear material research business associated with handling.
radioacth>e material and requested through the contracting officer that 00E decontamir. ate and decoinnission the 8MI West Jefferson and Columbus
. facilitie.
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jut. 25 '90 tot 3 8 FQoM USDOE CH OCM PAGE.003 Dr. Joseph W. Ray 2-Jdy 26, 1990 Stace the contract did not contain any explicit provision for the D&D and clear cut delineations of 00E program responsibility could not be ascertained due to the numerous past 9MI sponsors, many no longer existinib OMI requested guidance free CH and later the DOE Surplus 5FMP) in the Office of Remedial Action and Facilit es Management Program (d its D&D project Request to CW on October Waste Technology. MI presente 15 1995, whic5 was the result of 10 months of documentation and data collection. Afher reviewiN the BMI claim, including each of BMI's specific allegations, tofletier with the contractual and other legal bases cited by BMI in its suba'ssion, CH concluded that 00E responsibt ity did exist for almost all of the D&D of the West Jefferson and Columbus
, facilities.
On'May ig, 1985, Mr. William R. 8. Veigt. Jr., Director Office of Remedial Action and Waste Technology, Office of Nuclear Energy, U.J.
Department of Energy approved an action memorandum which concluded that the Department of Energy, as successor to the Atomic Enerity Commission and the Federal Government's earlier nuclear work, has predon< nant liability and responsibility for the D&D of the Battelle facilities. On March 8, 198g, Mr. John E. Baublitz, Acting Director, Office of Remedial Action and Waste Technology, Office of Nuclear Energy, U.S. Department of Energy, transmitted a signed Justification for a New Start to Mr. Hilary Rauch, Manager of the Chicago Operations Office, This Justificatiou for a New Start contained the approvals to initiate the major project of decontaminatim and decommissioning the West Jefferson and Columbus facilities. T1e Justification for a NEW Start stated that the DOE would be liable for 85 905 of the D&D offert. The remaining liability would reside with the Battelle Memorial Institute.
The D&D of the BMI facilities sontinues to be a recotinized and accepted liability on the Department of Energy. The project ts included in the i
1989 edition of the 5 Year Plan (00E/5 0070) and in the 1990 edition (D0E/$ 0078P) currently out for comment. These plans reflect the support the project is receiving in the planning process.
I an authorized to' represent that it is DOE's intent to meet its liability to decontaminate and decommission Batte11e's facilities at a pace consistent with the priorities established within the Department and consistent with the funding provided in the budgetary process.
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tingMa er JON/lcj/890 319 cc: W. Murphie, 00E:HQ a
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1800 South Goes Avenue x
Apponne,INinois 00a89 July 24, 1990 Dr.desophN. Ray Group Vice President and teneral Manager OhD Operations Battelle
. 505 King Avenue-
. Columbus, Ohio ~ 43201 J
Dear Dr. Ray:
SUBJECT:
'DECONTAMINATIONANDDEC009615510NING(D&D)UMSUSFAC 0F THE BATTELLE MEMDRIAL INSTITUTE WEST JEFFERSON AND COL (W-7405-ENG-92)
The purpose o'f this memorandum is to summarige the Department of Energy
-(DDE)ial Institute (BMI)' request for an exemption to NRC Financialresponsibility for the, s Memor Assurance Requirements for Decomeissioning for licensees (10 CFR 70.25)
On April.16,1943, BMI entered into Contract No. W-7405 ENG 92 with the Ma'nhattan E 1.neer District to perform atomic energy research and~
Since that time BMI has continuously l
' development R&D)k at its West Jefferson and Columbus facilities,- under activities.
performed wor the contract, for the Manhattan Engineer District and its successor agencies -=AEC,.ERDA, and 00E, The BMI/Sovernment relationship was unique and, in many respects, has been similar to that of a G0CO-type arrangement. BMI has also used its facilities in the performance of work for 'other Government agencies and since 1954 for commercial organizations as well, under separate contractual arrangements. The work in support of
, DDE was an overwhelming majority of the government work.
On March 17' 1964, DDE Chicago Operations Office (CH) notified BMI'of its.
Intent'to allow the subject contract to expire due to the decrease in the level of activity under the contract and the fact that this t was no longer justifiable under the new FAR/ DEAR regulations.ype agreement These regulations were to become effective Apr.il 1, 1984, and no new work was to be placed under the contract unless such work had a completion date no later than August,14, 1986,.the current expiration date of the contract.
Any. Subsequent work would be provided for under.new, individual contracts sawarded in accordance with the new FAR/ DEAR acquisition regulations. 9MI coincidentally inforsed CH of its decision to withdraw from any further experimental nuclear material research business associated with handling radioactive material and requested through the contracting officer that 00E decontaminate'and decommission the SMI West Jefferson and Columbus facilities.
~
JUL 23 '90 10:34 FQOM us00E CH OCM PAGE.003 Dr. Joseph W. Ray July ta, 1990 Since the contract did not contain any expiteit provision for the 040 and l
clear cut delireations of DOE program responsibility could not be ascertained due to the r,umerous past EMI sponsors, many no longer existing, IMI requested guidance from CH and later the 00E Surplus i
5FMP) in the Office of Remedial Action and Facilit< es Management Program (d its D&D Project Request to CH on October Waste Technology. SMI presente 15 1985, whic1 was the result of 10 meeths of documentation and data coilection. After reviewinl the EMI claim, including each of IMI's specific allegations, toget1er with the contractual and other legal bases cited by BMI ' n its suba'ssion, CH concluded that DOE responsibi ity did exist for almost all of the D&D of the West Jefferson and Columbus
, facilities.
On'May 29, 1985, Mr. William R. 6. Voigt. Jr., Director, Office of Remedial Action and Waste Technology, Office of Nuclear Energy, U.S.
Department of Energy approved an action memorandum which concluded that the Department of Ene y, as successor to the Atomic Enerny Commission and the Federal Government s earlier nuclear work, has predoesnant liability i
and responsibility for the D&D of the Battelle facilities. On March 8, i
1989. Mr. John E. Saublitz, Acting Director, Office of Remedial Action and Weste Technology, Office of Nuclear Energy, U.S. Department of Energy, transmitted a signed Justification for a New Start to Mr. Hilary Rauch, Manager of the Chicago Operations Office. This Justification for a New Start contained the approvals to initiate the major project of decontaminating and decommissioning the West Jefferson and Columbus facilities. Tae Justification for a NEW Start stated that the DOE would be liable for 85 905 of the D&D effort. The remaining liability would reside with the tattelle Memorial Institute.
The D&D of the BMI facilities continues to be a recognized and accepted I
liability on the Department of Energy. The project osit of such securities in a qualified central depository even thoug1, when so deposited, such securities may be merged and held in bulk in the name of the nominee or such depository with other securities deposited therein by another person, or to deposit or arrange for the deposit of any securities issued by the U.S.
Government, or any agency or instrumentality thereof, with a Federal Reserve bank, but the books and records of the Trustee shall at all times show that all such securities are part of the Fund; 3
- o ao D.
To deposit any cash in the Fund in interest-bearing accounts maintained or savings certificates issued by the Trustee, in its separate corporate capacity, or in any other banking institution affiliated with the Trustee, to the extent insured by an agency of the Federal government; and E.
To compromise or otherwise adjust all claims in favor of or against the Fund.
Section 9.
Taxes and Expenses. All taxes of any kind that may be assessed or levied against or in respect of the Fund and all brokerage commissions incurred by the Fund shall be paid from the Fund. All other expenses incurred by the Trustee in connection with the administration of this Trust, including fees for legal services rendered to the Trustee, the compensation of the Trustee to the extent not paid directly by the _Trustor, and all other proper charges and disbursements of the Trustee shall be paid from the Fund.
Section~10. Annual Valuation. After payment has been made into this Trust l
Tuiid, the Trustee shall annually,'at least 30 days before the anniversary date of receipt of payment into the. Trust Fund, furnish to the Trustor and to the NRC a statement confirming the value of the Trust. Any securities in the Fund shall be valued at market value as of no more than 60 days before the anniversary date of the establishment of the Fund.
The failure of the Trustor to object in writing to the Trustee within 90 days after the statement has been furnished to the Trustor and the NRC shall constitute a conclusively l
binding assent by the Trustor, barring the Trustor from asserting any claim or l
liability against the Trustee with respect to the matters disclosed in the statement.
Section 11. Advice of Counsel. The Trustee may from time to time consult with counsel with respect to any question arising as to the construction of this Agreement or any action to be taken hereunder.
The Trustee shall be fully protected, to the extent permitted by law, in acting on the advice of I
counsel.
Section 12.
Trustee Compensation.
The Trustee shall be entitled to reason-able compensation for its services as agreed upon in writing with the Trustor, to be paid directly out of the Trust Fund.
Section 13.
Successor Trustee.
Upon 90 days notice to the NRC, the Trustee I-may resign; upon 90 days notice to the NRC and the Trustee, the Trustor may i
replace the Trustee; but such resignation or replacement shall not be effective until the Trustor has appointed a successor Trustee and this successor accepts the appointment. The successor Trustee shall have the same powers and duties as those conferred upon the Trustee hereunder.
Upon the successor Trustee's acceptance of the appointment, the Trustee shall assign, transfer, and aay over to the successor Trustee the funds and properties then constituting t1e Fund.
If for any reason the Trustor cannot or does not act in the event of the resignation of the Trustee, the Trustee may apply to a court of competent jurisdiction for the ap) ointment of a successor Trustee or for instructions.
The successor Trustee s1all specify the date on which it assumes administration of the Trust in a writing sent to the Trustor, the NRC, and the present Trustee by certified mail 10 days before such change becomes 4
effective. Any ex)enses incurred by the Trustee as a result of any of the acts contempla*ed )y this section shall be paid as provided in Section 9.
Section 14.
Instructions to the Trustee.
All orders, requests, and instructions by the Trustor to the Trustee shall be in writing, signed by such persons as are signatories to this agreement or such other designees as the Trustor may designate in writing.
The Trustee shall be fully protected in acting without inquiry in accordance with the Trustor's orders, requests, and instructions.
If the NRC issues orders, requests, or instructions to the Trustee these shall be in writing, signed by the NRC, and the Trustee shall act and shall be fully protected in acting in accordance with such orders, requests, and instructions.
The Trustee shall have the right to assume, in the absence of written notice to the contrary, that no event constituting a change or a termination of the authority of any person to act on behalf of the Trustor or the NRC hereunder has occurred.
The Trustee shall have no duty to act in the absence of such orders, requests, and instructions from the Trustor and/or the NRC, except as provided for herein.
Section 15. Amendment of Aareement.
This Agreement may be amended by an instrument in writing executed by the Trustor and the Trustee. All amendments shall meet the relevant regulatory requirements of the NRC.
Section 16.
Irrevocability and Termination.
Subject to the right of the parties to amend this Agreement as provided in Section 15, this Trust shall be irrevocable and shall continue until terminated at the written agreement of the Trustor, the Trustee, and the NRC, or by the Trustee and the NRC if the Trustor ceases to exist. Upon termination of the Trust, all remaining trust property, less final Trust administration expenses, shall be delivered to the Trustor or its successor.
Section 17.
Immunity and Indemnification.
The Trustee shall not incur l
personal liability of any nature in connection with any act or omission, made in good faith, in the administration of this trust, or in carrying out any directions by the Trustor or the NRC, issued in accordance with this Agreement.
The Trustee shall be indemnified and saved harmless by the Trustor or from the Trust Fund, or both, from and against any personal liability to which the Trustee may be subjected by reason of any act or conduct in its official capacity, including all expenses reasonably incurred in its defense in the event the Trustor fails to provide such defense.
Section 18.
This Agreement shall be administered, construed, and enforced according to the laws of the State of Ohio.
Section 19.
Interpretation and Severability.
As used in this Agreement, words in the singular include the plural and words in the plural include the singular. The descriptive headings for each section of this Agreement shall not affect the interpretation or the legal efficacy of this Agreement, if any part of this agreement is invalid, it shall not affect the remaining provisions which will remain valid and enforceable.
5
', o.
IN WITNESS WHEREOF the parties have caused this Agreement to be executed by the respective officers duly authorized and the incorporate seals to be hereunto affixed and attested as of the date first written above.
ATTEST:
Battelle Memorial Institute
[Signatureofrepresentative ofTrustor]
[ Title]
- Title]
. Seal]
- Signatureofrepresentative InsertnameofTrustee]
l ofTrustee]
[ Title]
ATTEST:
l Title]
, Seal]
l l
6 1
4 l l' ' -
ATTACHMENT D-2 REVISED INDUSTRIAL TRUST TRUST AGREEMENT, initially entered into December 1,1980, and amended and restated in its entirety on July
, 1990, by and between Battelle Memorial Institute (Battelle), an Ohio corporation, herein referred to as the "Trustor," and the Bank One Trust Company, NA as trustee to receive and hold certain payments from clients for industrial research and development carried on by Battelle and such other funds as Battelle shall from time to time contribute.
5 WHEREAS, the U.S. Nuclear Regulatory Commission (NRC), an agency of the U.S.
l Government, pursuant to the Atomic Energy Act of 1954, as amended, and the Energy Reorganization Act of 1974, has promul Chapter I of the Code of Federal Regulations, gated regulations in-Title 10, Parts 3 that Trustor, the holder of a material license issued pursuant to 10 CFR Parts 30 and 70, provide a certification of assurance that funds will be available t
when needed for required decommissioning activities; i
WHEREAS, the Trustor has elected to use trust funds providing a portion of such financial assurance for the facilities identified herein; WHEREAS, the Trustor, acting through its duly authorized officers, has selected the Trustee to be the trustee under this Agreement, and the Trustee is willing to act as trustee;
[
NOW, THEREFORE, the Trustor and the Trustee agree as follows:
,Section 1.
Definitions.
As used in this Agreement:
A.
The term "Trustor" means Battelle the NRC licensee who enters into this Agreement, and any successors or a,ssigns of the Trustor.
B, The term " Trustee" means the trustee who enters into this Agreement and any successor Trustee.
Section 2.
Costs of Decommissioning.
This Agreement pertains to the costs of decommissioning the materials and activities identified in License Number SNM-7 issued pursuant to 10 CFR Parts 70 and 30.
i l
Section 3.
Establishment of Fund. The Trustor and the Trustee hereby amend I
the Trust Agreement to designate and establish the NRC as beneficiary of the 1
Trust Fund (the Fund).
The Trustor and the Trustee intend.that no third party shall have access to the Fund except as provided herein.
Section 4.
Payments Constituting the Fund.
Payments made to-the Trustee for the Fund shall consist of cash, securities, or other liquid assets acce) table to the Trustee.
The Fund shall consist of such payments and property t1at has been or will be transferred to the Trustee from time to time, together with all earnings and profits' thereon, less any payments or distributions made by 3
the Trustee pursuant to this Agreement.
The Fund shall be held by the Trustee, IN TRUST, as hereinafter provided.
The Trustee shall not be responsible, nor shall it undertake any responsibility, for (1) the amount of
,'.e.
l or adequacy of the Fund, nor (2) any duty to collect from the Trustor, any payments necessary to discharge any liabilities of the Trustor established by the NRC.
Section 5.
Payment for Required Activities Specified in the Plan.
The Trustee shall make payments from the Fund to the Trustor upon presentation to the Trustee as follows:
A.
A certificate duly executed by the Secretary of Trustor attesting that the requested funds are to be used to pay for expenses associated with decommissioning of Trustor facilities in accordance with the Trustor decommissioning plan previously approved by the NRC in letters from L. Rouse (NRC)toTrustordatedJune 29, 1979, and September 23, 1987; or B.
1.
A certificate duly executed by the Secretary of the Trustor attesting to the occurrence of the events, and in the form set forth in the attached Specimen Certificate, and 2.
A certificate attesting to the following conditions; a,
that decommissioning is proceeding pursuant to an NRC-approved
- plan, b.
that the funds withdrawn will be ex) ended for activities undertaken pursuant to tlat Plan, and c.
that the NRC has been given 30 days' prior notice of Trustor's intent to withdraw money from the Fund.
In the event of the Trustor's default or inability to direct decommissioning activities, the Trustee shall make payments from the Fund as the NRC shall direct, in writing, to 3rovide for the payment of the costs of required activities covered by t11s Agreement.
The Trustee shall reimburse the Trustor or other persons as specified by the NRC from the Fund for expenditures for recuired activities in such amounts as the NRC shall direct in writing.
In adcition, the Trustee shall refund to the Trustor such amounts as the NRC specifies in writing.
Upon refund, such funds shall no longer constitute part of the Fund as defined herein.
Section 6.
Trust Management.
The Trustee shall invest and reinvest the principal and income of the Fund and keep the Fund invested as a single fund, without distinction between principal and income, in accordance with general investment policies and guidelines which the Trustor may communicate in writing to the Trustee from time to time, subject, however, to the provisions of this section.
In investing, reinvesting, exchanging, selling, and managing i
the Fund, the Trustee shall discharge its duties with respect to the Fund solely in the interest of the beneficiary and with the care, skill, prudence, and diligence under the circumstances then prevailing which persons of prudence, acting in a like capacity and familiar with such matters, would use in the conduct of an enterprise of a like character and with like aims; except that:
2 4
i
i A.
Securities or other obligations of the Trustor, or any of its affiliates as defined in the Investment Company Act of 1940, as amended (15 U.S.C.
80a-2(a)), shall not be acquired or held, unless they are securities or other obligations of the Federal or a State government;
)
l B.
The Trustee is authorized to invest the Fund in time or demand deposits of the Trustee, to the extent insured by an agency of the Federal i
government; and C.
For a reasonable time, not to exceed 60 days, the Trustee is authorized to hold uninvested cash, awaiting investment or distribution, without liability for the payment of interest thereon.
l Section 7 Comminglina and Investment.
The Trustee is expressly authorized l
3 in its discretion:
i A.
To transfer from time to time any or all of the assets of the Fund to any common, commingled, or collective trust fund created by the Trustee in i
which the Fund is eligible to participate, subject to all of the provisions thereof, to be commingled with the assets of other trusts i
participating therein; and B.
To purchase shares in any investment company registered under the i
Investment Company Act of 1940 (15 U.S.C. 80a-1 et seq.), including one that may be created, managed, underwritten, or to which investment advice l
I is rendered, or the shares of which are sold by the Trustee. The Trustee may vote such shares in its discretion.
Section 8.
Express Powers of Trustee. Without in any way limiting the powers and discretion conferred upon the Trustee by the other provisions of this Agreement or by law, the Trustee is expressly authorized and empowered:
A.
Tosell, exchange, convey, transfer}e,rotherwisedisposeofanyproperty o
held by it, by )ublic or private sa as necessary for prudent
+
management of tie Fund; B.
To make, execute, acknowledge, and deliver any and all documents of r
transfer and conveyance and any and all other instruments that may be necessary or appropriate to carry out the powers herein granted; C.
To register any securities held in the Fund in its own name, or in the name of a nominee and to hold any security in bearer form or in book entry, or to combine certificates re) resenting such securities with l
certificates of the same issue held )y the Trustee in other fiduciary capacities, to reinvest interast payments and funds from matured and redeemed instruments, to file proper forms concerning securities held in I
the Fund in a timely fashion with appropriate government agencies, or to deposit or arrange for the deposit of such securities -in a qualified I
central depository even though, when so deposited, such securities may be mergad and held in bulk in the name of the nominee or such depository with other securities deposited therein by another person, or to deposit pr arrange for the deposit of any securities issued by the U.S.
evernment, or any agency or instrumentality thereof, with a Federal 3
eo i
Reserve bank but the books and records of the Trustee shall at all times showthatallsuchsecuritiesarepartoftheFund; D.
To deposit any cash in the Fund in interest-bearing accounts maintained or savings certificates issued by the Trustee, in its separate corporate capacity, or in any other banking institution affiliated with the Trustee, to the extent insured by an agency of the Federal government; and E.
To compromise or otherwise adjust all claims in favor of or against the Fund.
Section 9.
Taxes and Expenses. All taxes of any kind that may be assessed or levied against or in respect of the Fund and all brokerage commissions incurred by the fund shall be paid from the Fund. All other expenses incurred by the Trustee in conrection with the administration of this Trust, including fees for legal services rendered to the Trustee, the compensation of the Trustee to the extent not paid directly by the Trustor, and all other proper charges and disbursements of the Trustee shall be paid from the Fund.
Section 10. Annual Valuation. After payment has been made into this Trust Fund, the Trustee shall annually, at least 30 days before the anniversary date of receipt of payment into the Trust Fund, furnish to the Trustor and to the NRC a statement confirming the value of the Trust. Any securities in the Fund shall be valued at market value as of no more than 60 days before the anniversary date of the establishment of the Fund.
The failure of the Trustor to object in writing to the Trustee within 90 days after the statement has been furnished to the Trustor and the NRC shall constitute a conclusively binding assent by the Trustor, barring the Trustor from asserting any claim or liability against the Trustee with respect to the matters disclosed in the statement.
Section 11. Advice of Counsel.
The Trustee may from time to time consult with counsel with respect to any question arising as to the construction of this Agreement or any action to be taken hereunder. The Trustee shall be fully protected, to the extent permitted by law, in acting on the advice of counsel.
Section 12.
Trustee Compensation.
The Trustee shall be entitled to reason-able compensation for its services as agreed upon in writing with the Trustor, to be paid directly out of the Trust Fund.
Section 13.
Successor Trustee. Upon 90 days notice to the NRC, the Trustee may resign; upon 90 days notice to the NRC and the Trustee, the Trustor may replace the Trustee; but such resignation or replacement shall not be effective until the Trustor has appointed a successor Trustee and this successor accepts the appointment.
The successor Trustee shall have the same powers and duties as those conferred upon the Trustee hereunder. Upon the successor Trustee's acceptance of the appointment, the Trustee shall assign, transfer, and )ay over to the successor Trustee the funds and properties then constituting tie Fund, if for any reason the Trustor cannot or does not act in the event of the resignation of the Trustee, the Trustee may apply to a-court of competent jurisdiction for the appointment of a successor Trustee or 4
1
o e*o for instructions.
The successor Trustee shall specify the date on which it assumes administration of the Trust in a writing sent to the Trustor, the NRC, and the present Trustee by certified mail 10 days before such change becomes effective. Any ex)enses incurred by the Trustee as a result of any of the acts contemplated )y this section shall be paid as provided in Section 9.
Section 14.
Instructions to the Trustee.
All orders, requests, and instructions by the Trustor to the Trustee shall be in writing, signed by such persons as are signatories to this agreement or such othar designees as the Trustor may designate in writing.
The Trustee shall be fully protected in acting without inquiry in accordance with the Trustor's orders, requests, and instructions.
If the NRC issues orders, requests, or instructions to the Trustee these shall be in writing, signed by the NRC, and the Trustee shall act and shall be fully protected in acting in accordance with such orders, requests, and instructions.
The Trustee shall have the right to assume, in the absence of written notice to the contrary, that no event constituting a change or a termination of the authority of any person to act on behalf of the Trustor or the NRC hereunder has occurred.
The Trustee shall have no duty to act in the absence of such orders, requests, and instructions from the Trustor and/or the NRC, except as provided for herein.
Section 15. Amendment of Aorcement.
This Agreement may be amended by an instrument in writing executed by the Trustor and the Trustee. All amendments shall meet the relevant regulatory requirements of the NRC.
1 Section 16.
Irrevocability and Termination.
Subject to the right of the parties to amend this Agreement as provided in Section 15, this trust shall be irrevocable and shall continue until terminated at the written agreement of the Trustor, the Trustee, and the NRC, or by the Trustee and the NRC if the Trustor ceases to exist. Upon termination of the Trust, all remaining trust property, less final trust administration expenses, shall be delivered to the Trustor or its successor.
Section 17.
Immunity and indemnification.
The Trustee shall not incur personal liability of any nature in connection with any act or omission, made in good faith, in the administration of this trust, or in carrying out any directions by the Trustor or the NRC, issued in accordance with this Agreement.
The Trustee shall be indemnified and saved harmless by the Trustor or from the Trust Fund, or both, from and against any personal liability to which the Trustee may be subjected by reason of any act or conduct in its official capacity, including all expenses reasonably incurred in its defense in the event the Trustor fails to provide such defense.
Section 18. This Agreement shall be administered, construed, and enforced according to the laws of the State of Ohio.
Section 19.
Interpretation and Severability.
As used in this Agrement,
(
words in the singular include the plural and words in the plural include the l
singular. The descriptive headings for each section of this Agreement shall not affect the interpretation or the legal efficacy of this Agreement.
If any part of this agreement is invalid, it shall not affect the remaining provisions which will remain valid and enforceable, j
5
- f,o ' o o;
-IN WITNESS WHEREOF the parties have caused this Agreement to be executed by the respective officers duly authorized and tne. incorporate seals to be hereunto affixed and attested as of the date first written above.
ATTEST:
Battelle Memorial Institute (Signatureofrepresentative ofTrustor)
.[ Title]
' Title]
' Scal]
' Insert name of Trustee]
' Signature of representative
. ofTrustee)
(Title]
ATTEST:
- Title]
. Seal]
6 i
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