ML20206E898

Notice of Denial of Petition for Rulemaking (PRM-30-61) Submitted by NEI Which Requested That NRC Amend Regulations Governing Timeliness of Decommissioning of Sites & Separate Buildings or Outdoor Areas

ML20206E898
Person / Time
Issue date:	03/31/1999
From:	Miraglia F NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
To:
References
FRN-61FR43193, RULE-PRM-30-61 NUDOCS 9905050277
Download: ML20206E898 (6)

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DOCKET NUMBER PETITION RULE PRM 304l

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[ Docket No. PRM-30-61)

Nuclear Energy Institute; Denial of Petition for Rulemaking AGENCY:

Nuclear Regulatory Commission.

i 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 Institun (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.

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i ADDRESSES: Copies of the PRM, the public comments received, and the NRC's letter to the

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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, ajdenrc. gov, of the Office of Nuclear Material Safety and Safeguards, U.S. Nuclear

' Regulatory Commission, Washington, DC 20555-0001, l

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SUPPLEMENTARY INFORMATION:

The Petition On August 21,1996 (61 FR 43193), the NRC published a notice of receipt of a PRM filed by the NEl. 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 thht 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.

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.

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.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.

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

believe that the nuclear industry has now matured and that poorly financed and poorly managed companies are no longer in business. The remaining companias are said to be stable and willing and able to assume the costs associated with keeping facilities in standby mode.

l 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 I

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.

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V 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 currectly contains provisions for granting licensees altemative time schedules for initiating decommissioning.14RC also believes that clarification of the specific acceptance criteria for granting alternative schedules could be j

achieved through the development of guidance.

2. NRC believes that the amendments requested by the petitioner would conflict with j

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 materiallicensees 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 cornponents 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 4

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 bc

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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 Environmentalimpact 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 r6sult 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.

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

Dated at Rockville, Maryland, this O / day of d 199f For the Nuclear Regulatory Commission.

Deputy Executive Dir[ector Frank J. l@laglial for Regulatory Programs i

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