ML20216F531

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Submits Response to Request Re Language in Proposed Decommissioning Rule
ML20216F531
Person / Time
Issue date: 01/23/1995
From: Bradley Jones
NRC
To: Feldman C
NRC
Shared Package
ML20216F445 List:
References
FRN-60FR37374, RULE-PR-2, RULE-PR-50, RULE-PR-51 AE96-1-011, AE96-1-11, NUDOCS 9803180436
Download: ML20216F531 (23)
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NOTE T0: Carl Feldman #

y p;; w dh i FROM: Bradley Jones

SUBJECT:

RESPONSE TO YOUR REQUEST FOR LANGUAGE g _gl 2.1201

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(a) Amendment of a Part 50 License following cessation of operations j and permanent removal of fuel from the Part 50 power reactor site for  ;

licensees that have made declarations related to permanent cessation of j operations and permanent removal of fuel in accordance with 10 CFR 550.82 (b). l On the 51.53 issue, I'm afraid I don't understand NRR's comment. I have previously suggested that the wording be changed to read "Each applicant for a license amendment authorizing decommissioning activities of at a production i and utilization facility...". That change is consistent with not requiring environmental reviews for 50.59 activities, but still requiring reviews of ,

individual amendments related to decommissioning in > stances where the licensee's 50.59 review indicates a need for an amenu.aent to perform desired activities. I don't understand what NRR thinks is needed for non-power reactors. The language as drafted applies to any facility that required an environmental review under 51.20. That includes test reactors.

I don't agree with eliminating the " unrestricted use" phrase. As written, i 51.53 only applies to release of a sit "hased on continuing use restrictions applicable to the site." One alternr change would be to remove this  :

quoted language so the rule applies t< ..an amendment approving a plan for )

release of a production or utilization 2acility site covered by 551.20; i and..." l By the way, our discussion of the fact that the staff performs " assessments" '

for these amendments has identified an additional amendment to the regulations i that will be necessary. Whatever change is made to $51.53(b) also needs to j be made to 551.95(b) so that the staff's responsibilities will mesh with the ,

required licensee submittals. j i

9803180436 980311 PDR PR PDR 3 s, _ ,2 ,60FR37374

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Note To: Carl Feldman )i From: Bradley lones

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Subject:

Comments on Decommissioning Rule n i t

I have several suggestions for language in the proposed rule. l Because the draft was already in a strikeout / redline version, I have indicated my suggested changes as bolded / italicized text.

These are a bit difficult to read on the computer but are clear )

when printed out. If you have any problems, please let me know. 1 l

l

1. In 50.82 (b) (4) and (6) the following changes are suggested.

'(4 ) ' For al~ power"rea'ctor^lii:ensee, 550.59 may noC bEused tolperform; decommissioning activities, as' defined in 5 50.2,' " ^ ~

until 90 days after the NRC has' received the licensee's PSDAR" ^ ' ' ' l submittkl, provided the NRC has received the' licensee's ' I certifications of permanent cessations of' operations and perman'en6 I r'.'.noval' of fuel from the ' reactor vessel. In taking actions

l 5 50.'59 following ' submittal of the, PSDAR, ths

/,ermitted under

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licensee shall notify the' NRC, in writing, 'before taking any ~

j action /n4 assistant ir/tbEor making any significant schedule change fran,t those (

' actions and 'schedulei^ described in the PSDAR. ,This includes ' actions where l various decommissioning' activities,as defined in 6 60.2, may have been ~'^ j delayed by first' placing the facility in storage',"where less decommissioninii

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activity and planning would be required; ~ ~ '

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1 (6) ~For a" power 'reactorflicensee'that'^ ~ c easei operatioW,'^ tho' applicatios for' license teraination must be accompanied or, preceded by,a,1icense

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. termination

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p1an 'to be'Eubinitted foiNRC appievalis a fleense sinendment.)

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c' l Q~^;~} j w ~ m 7 ~,,~;p v :yy 39 license terminat%ri plan shall be's supplement t' othe'FSAR, and shall' be submitted at least two years prior to the p'lanned decommissioning comp'leti,on

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date as spectfied in 'she P50AR ,

~' (11) The propos,ed, license, toys,inition plan 1for"' power'fesi: tors ~'Loust include- ,

E- (A)" A" site ~ cwa ~ctopiia^ tioni

!' ' -(t) , A description of remaining ^ dismantlement' activities;'

! ' C) Plans'for site remediation; '

e '((0) Detailed plans'for the final radiation's'urveyi i (E) ~ A description of the and use'of the site, if< restrictsdi t

(F)An updated site specific analysis of decommissioning costsi (G) A supplement to the environmental report, pursuant to i 51',5%,,

describinq acy new information'or significant environmental change associated

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pith sthemjcenseeis proposed f:: S&qQtemination^ act,ivipes,.,

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2. In S 51.53, paragraph (b) the following changes are suggested:

(b) Post Operating License Stage. Each applicant for a license amendment authorizing the dccc.....iccioning of Acamm/ss/m/ap actMt/ar at a production or utilization facility covered by S 51.20MssbE85ppfl?6EhE f6sEXE6 EiisihdasnEfspiif6tf6gihyplsspEdvidingif6dre$esselef?~s l

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ANALYSIS AND REGULATORY EVALUATION OF IMPACTS OF DECOMMISSIONING IN 1988 AND 1994 RULE AND GEISs I. Human health impacts '

k A. Analyses of Radiological Impacts

1. Dose to workers' and the public from on-site decommissioning operations
a. doses due to decommissioning alternatives (NUREG-0586, Section 4.3)
b. doses as a result of alternate radiological criteria (NUREG-1496, Section 5.2)
2. Dose to workers and the public from decommissioning accidents - (NUREG-0586, Section 4.4)
3. Dose to workers and the public from transport of wastes during decommissioning operations
a. doses due to decommissioning alternatives (NUREG-0586, Section 4.3)
b. dose during transport as a result of alternate radiological criteria (NUREG-1496, Section 5.2)
4. Dose to the public (residence and occupational) from residual radioactivity left at the site (NUREG-1496, Section 5.2 for alternate '

radiological criteria).

. B. Requlatory Findings regardina Analyses of impacts

1. 1988 Rule /GEIS Supplementary Information (SI) of 1988 decommissioning rule (53 FR 24039), and section 15.1.5 of NUREG-0586, note that based on findings of <

the GEIS regarding impacts of decommissioning alternatives, it is.not  !

expected that any significant environmental impacts will result from choice of alternatives. Therefore those documents recomnaded deleting then-mandatory EIS requirement in o art 51 and, following iaview to .

consider adequacy of generic analysis, an EA and a negative declaration 1 of impact is expected to be reasonable for most situations. Part 51 was so amended in the 1988 rule (10 CFR 51.96(b)).

2. 1994 proposed rule on radiological criteria SI of rad criteria rule (59 FR 43225), and Section 8.2.7 of NUREG-1496, indicate that generic analysis likely encompasses the impacts that will 1

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occur in any Commission decision to decommission an individual site, and that the GEIS can therefore be useful in. satisfying NRC obligations under NEPA. It is recommended that a preliminary environmental review be done to determine if the generic analysis of the GEIS encompasses the environmental impacts of the pa'eticular site. (For restricted release, independent environmental reviews would be conducted by the Commission).

3. 1992 prnposed license renewal rule NUREG-1737 (Section 9.2.8) found that environraental impacts associated with decommissioning (except for socioeconomic effects of terminating operations) would'be less than impacts from 40 years of plant operations.

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b II. Other environmental consecuences from decommissioning activities and residual radioactivity A. Analyses

1. Biological environment Section 4.4 of NUREG-0586 and Section 5.3.1 of NUREG-1496 estimates impacts on biological environment from decommissioning. Impacts are evaluated for:
1. Physical disturbance caused by decontamination activities (NUREG-0586, Sect. 4.4; NUREG-1496, Sections 5.3.1.1 for plants, 5.3.1.2 for mammals, 5.3.1.3 for birds, 5.3.1.4 for reptiles and amphibians, 5.3.1.5 for invertebrates) - evaluation considered that there is a smaller effect than construction and operating the facility and that, in particular, effects are temporary and local, 1 and that there would be re-establishment of former levels of biological activity.
2. Considerations of endangered species - made prior to land disturbances
3. Evaluation of radiological effects - effect of alternative residual radiological criteria on plants (Section 5.3.1.1),

mammals (section 5.3.1.2), birds (section 5.3.1.3), reptiles (section 5.3.1.4), and invertebrates (section 5.3.1.5) -

evaluation considered that discernable effects on biological populations are not expected at residual dose levels of 100 mrem /yr or less.

2. Physical environment Section 4.4 of NUREG-0586 and Section 5.3.3 of NUREG-1496 estimates impacts on physical environment from decommissioning. In addition, 1 NUREG-1437, Section 7.3.3, analyzes impacts on the physical environment.

Impacts are evaluated for: I

1. noise and aesthetics - effect of decontamination activities and alternative residual radiological criteria (Section 5.3.3.1 of NUREG-1496; Section 4.4 of NUREG-0586).
2. water quality - effect of decontamination activities and alternative residual radiological criteria (Section 5.3.3.2 of NUREG-1496; Section 7.3.4 of NUREG-1437, Section 4.4 of NUREG-0586).
3. air quality - effect of decontamination activities and alternative I residual criteria (Section 5.3.3.3 of NUREG-1496; Section 7.3.3 of NUREG-1437, Section 4.4 of NUREG-0586).  ;

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4. Waste disposal volumes I? low level radwastes - in m' (NUREG-0586, Sect 4.4 for decommissioning alterr:tives; NUREG-1496, Section 5.3.3.4 and Appendix G for alternate radiological criteria)
2) highly activated components - in m' (NUREG-0586, Sect 4.4)
3. Socioeconomic environment Section 4.4 of NUREG-0586 and Section 5.3.2 of NUREG-1496 estimates impacts on socioeconomic environments from decommissioning. In addition, NUREG-1437, Section 7.3.7, analyzes impacts on the socioeconomic environment. Impacts are evaluated for:
1. Decommissioning operations - impacts are considered to be small compared to operations; most of the impact is considered to be from the decision to no longer operate
2. Evaluation of impacts from alternative radiological criteria - for the range of doses considered, the differential impact on institutions is not expected to be significant - however effect on Native American tribal land and effects from restricted use are considered to be site specific and would require site specific environmental analyses.

B. Rule /GEIS Findings regarding Anal _yses of impacts As above, SI of 1988 decommissioning rule and section 15.1.5 of NUREG-0586, note that based on findings of NUREG-0586 regarding impacts of decommissioning alternatives, it is not expected that any significant environmental impacts will result from choice of alternatives.

Additionally, SI of 1994 proposed rule on rad criteria and Section 8.2.7 of NUREG-1496 indicate that generic analysis likely encompasses the impacts that will occur in any Commission decision to decommission an individual site, and that the GEIS can therefore be useful in satisfying NRC obligations under NEPA.

Therefore, the 1988 SI and GEIS recommend deleting then-mandatory EIS requirement in Part 51, and following review to consider adequacy of generic analysis, an EA and a negative declaration of impact is expected to be reasonable for most situations. Part 51 was so amended. The 1994 proposed rule recommended that a preliminary environmental review be done to determine if the generic analysis of the GEIS encompasses the environmental impacts of the particular site.

3.1992 license renewal rule As above, NUREG-1737, Section 9.2.8, found that environmental impacts associated'with decommissioning (except for socioeconomic effects of 4

terminating operations) would be less than impacts from 40 years of plant operations.

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III. Environmental conseauences from chemical substances on-site A. Analyses <

NUREG-0586 and NUREG-1496 do not explicitly analyze the environmental impacts of use or handling of chemicals during decommissioning or left on-site following license termination.

B. Regulatory Findinas regardina Analyses of impacts from chemicals NUREG-1444 (the Site Decommissioning Management Plan (SDMP)), Section ^ ~~

5.2.6, discusses residual non-radioactive contamination. It is noted in NUREG-1444 that there may be instances where residual radioactive contamination has been reduced to levels permitting termination of the license, however non-radioactive contamination above the limitations imposed by other agencies may remain.

Section 5.2.6 notes that the SI to the 1988 rule indicated that decommissioning activities do not include the removal and disposal of )

non-radioactive contamination and that disposal of nonradioactive hazardous waste not necessary to terminate the NRC license is not covered by NRC regulations and would be treated by other appropriate agencies.

Section 5.2.6 further notes that if other agencies are not responsive to the hazards, NRC may enforce remediation of chemical hazards generated by regulated activities when the hazard affects an activity normally regulated by the NRC.

In the specific case of UNC at Wood River Junction, (page A-101 of NUREG-1444), it is indicated that the nitrate level was higher than EPA standards. It is also indicated that NRC and the licensee are working with the State of Rhode Island so as to ensure that State concerns are met to allow NRC to terminate the license.

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ae % - m ANALYSIS OF COMMENTS ON THE DRAFT POLICY STATEMENT ON THE USE OF DECOMMISSIONING TRUST' FUNDS BEFORE DECOMMISSIONING PLAN APPROVAL On. February 3, 1994, 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 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 Eoison 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 apprcves a licensee's decommissioning plan. The other commenters generally support the draft policy statement, although they disagree with certain provisions or take issue with the need for it. Specific comments and observations, and the NRC ]

-analysis of and response to them, are discussed below.

-Specific comments:

1. The trust agreements may need to be modified to include low  !

level radioactive waste storage and disposal (LLRW) and interim spent fuel storage as allowable decommissioning costs when these_ costs are incurred as part of additional, temporary facilities at particular sites. LLRW disposal costs, particularly, should be able to be paid from the decommissioning waste fund without. waiting 60 days for NRC approval. Also, provisions should be included for decommissioning non-radioactive structures associated with the reactor. (Commenters 1 and 4) l NRC response:

As provided in 10 CFR 50.75, financial assurance for decommissioning includes the cost of disposal of LLRW

2 associated with reactor operation. If a temporary facility is' built to store LLRW under the Part 50 reactor license, the trust agreement should already be 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). The NRC also excludes from its definition of decommissioning the cost of demolition and disposal of non-radioactive structures and restoration of the site to "greenfield" condition. However, NRC regulations do.not preclude licensees and their rate regulators from providing for these costs and depositing any collected funds in decommissioning trusts as long as the decommissioning-trusts have segregated sub-accounts indicating the NRC-required amount for radiological decommissioning. The NRC i understands that several licensees are currently using this j approach.

With respect to the issue of waiving the 60-day NRC approval period for withdrawals to pay for LLRW shipments, the NRC l believes that it should keep the approval period for  !

permanently shut down plants for the reasons discussed in the response to issue 8, below. This issue will be

-considered separately for operating plants as discussed in issue 3, below.

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 curing '

the removal of irradiated components, (2) it is inconsistent with the mandate of the NRC, which is to-implement a j submitted, reviewed, publicly evaluated and approved decommissioning plan before large-scale decommissioning activities begin, (3) the health and safety of the workers and the public can not be adequately served by the experimental process of the component removal process, and/or (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, and shipment and storage of spent fuel).

Reasonable interpretation of the rules do not require i 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 dacommission 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

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' certifications and funding plans' are generally acknowledged by the NRC to already be severely UNDERFUNDED.

This rule would exacerbate that situation." (Commenter 13)

NRC response:

The NRC believes these commenters are confusing NRC approval of early withdrawals from decommissioning trust funds with NRC approval of the early decommissioning activities themselves. In a staff requirements memorandum (SRM) dated January 14, 1993, the Commission stated, Notwithstanding the Commission's statements in footnote 3 of CLI-90-08 and the Statements of Consideration for the decommissioning rules at 53 Federal Register 24025-26, licensees should be allowed to undertake any decommissioning activity (as the term " decommission" is defined in 10 CFR 50.2) that does not -- (a) foreclose the release of the site for possible unrestricted use, (b) significantly increase decommissioning costs, (c) cause any significant environmental impact not previously reviewed, or (d) violate the terms of the licensee's existing license (e.g., OL, POL, OL with confirmatory shutdown order etc.) or 10 CFR 50.59 as applied to the existing license.

If decommissioning activities meet this criterion, the Commission indicated that the staff could permit licensees to use their decommissioning funds. The Commission subsequently directed the staff to develop criteria for the use of funds, as opposed to decommissioning activities, and further asked the staff to publish the resulting policy statement in the Federal Register.

Admittedly, commenters may be confused by the inclusion of criterion 4 in the draft policy statement, which repeated Commission guidance on allowable decommissioning activities from the January 14, 1993 SRM quoted above. However, this criterion was not meant to provide guidance on decommissioning trust fund withdrawals per se, but rather to reiterate established policy on the allowable decommissioning activities for which such withdrawals-may be made. The NRC believes that the commenters objections are more appropriately directed to the NRC policy of allowing certain decommissioning activities rather than to the use of trust funds once these activities have been approved.

The NRC disagrees with Commenter 13's assertions. Although many site-specific decommissioning estimates by power reactor licensees may exceed the NRC generic formula amounts derived from 10 CFR 50.75(c), there is little indication that licensees are " severely underfunding" decommissioning

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l if only the radiological costs of decommissioning are l included. The NRC excludes from its definition of i decommissioning the costs of interim spent fuel storage, demolition.of non-radiological structures, and restoration of the plant site to " green field" condition. Most licensees include these and other non-radiological costs in their estimates of decommissioning. When such costs are excluded, i the differences between NBC formula amounts and licensee i site-specific estimates are not great. Also, in many cases,  !

permitting a licensee to perform certain decommissioning activities and to withdraw funds for those activities before the NRC approves its decommissioning plan will allow the licensee to reduce its overall decommissioning costs, for example, 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. 1

3. The NRC should develop a similar policy for operating platts and should allow' licensees to withdraw decommissioning trust funds to dispose of structures and equipment no longer being i used for operating plants. (Commenters 7, 8 (by reference), I and 14) l Footnote 2 of the policy statement should be revised to clarify that the policy statement does not apply "to licensee withdrawals from decomdissioning funds for operating plants" rather than stating that the policy  !

statement does not apply "to licensees with operating ,

nuclear reactors." (Commenter 11) l NRC response:

The NRC is currently evaluating the benefits and drawbacks of a similar NRC policy on early decommissioning trust fund j withdrawals for nuclear power plants that continue to i operata. When and if developed, this policy will be published for public comment.  !

Footnote 2 will be revised to eliminate the error found by  :

Commenter 11. j

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 j (1) release of the property for unrestricted use and j termination of the license, or (2) release of the property l 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 l

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5 recommend replacing all references to release of the site for unrestricted use with " decommissioning of the site consistent with the definition in 10 CFR Part 50.2."

(Commenters 7, 8 (by reference), and 11) i NRC response: j The NRC agrees with'this recommendation and will change the policy statement accordingly.

5. A commenter disagrees with a statement in the draft policy statement, "If a licensee of a permanently shut.down i facility spends decommissioning trust funds on legitimate decommissioning activities, the timing of these expenditures, either before or after NRC approves a j licensee's decommissioning plan, should not adversely affect j public health and safety, provided adequate funds are 1 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. (Commentors 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)

NRC 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 l 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. Because even immediate dismantlement is a process that will likely take 5 to 7 years or more, the licensee should always have adequate funds to stop the decommissioning process and return the facility to a safe storage mode if something goes wrong. This is not the same requiring a licensee to switch from DECON (immediate dismantlement) to SAFSTOR after the NRC has approved the licensee's decommissioning plan. Thus, the policy statement does not appear to warrant change as a result of this

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, e-6 comment.

The policy statement.will correct 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 i decommissioning. 1

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 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)

NRC response:

The NRC agrees that some confusion may have arise by l including criterion 4 in the policy statement. (See response l to issue 2 above.) The NRC included this criterion to l provide guidance on the allowed decommissioning activities l as opposed to the use of decommissioning trust funds for i 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 will thus remove Criterjon 4 as a separate criterion and, instead, include it as background and perspective in the l policy statement.

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Although the decommissioning activities included under  !

criterion 4 may change as a result of evolving Commission  !

policy, this policy statement concerning-withdrawals for such activities may be of benefit to licensees sooner rather-than.later. (Most comments from utility licensees essentially agreed with the thrust of the policy statement.)

As indicated above, if the policy statement is structured to eliminate allowable activities as a criterion for )

withdrawals from trust funds (i.e., criterion 4) and instead ,

incorporates allowable pre-plan-approval activities by i reference, the commenter's concerns should be resolved.

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)

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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 l developing the decommissioning plan also seems to be outside i 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 si.mply request to use these funds for other purposes...Other uses are unacceptable, even if they are subject to prior regulator approval." (Commenter 13)

NRC response:

The intent of the ancillary issue was to allow de minimis 1 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 policy statement will be clarified to indicate that de minimis withdrawals may be '

made by licensees of operating as well as permanently shut down plants and that 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.

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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 (ar.d that NRC concerns expressed in the policy statement) are not tangible'for decommissioning."

Thus, the policy statement should not be issued. (Commenter 9)

Also, "the draft policy statement provides no basis for the NRC's conclusion that prior NRC review of pre-plan-approval decommissioning fund expenditures should be required." The draft policy statement may satisfy the Commission's directive to the staff to develop a policy without including

8 an approval mechanism. (Commenter 11)

The. draft policy statement is not clear as to the purpose of the NRC review of decommissioning expenditures before decommissioning plan approval. The only reason for the review, given in the statement of policy, is to ensure the health and safety of the general public. There are other regulatory mechanisms for evaluating the activity for which the funds are withdrawn without reviewing the actual withdrawal.from the fund. The expenditure of decommissioning trust. funds for legitimate decommissioning activities is an economic and not a safety concern. (Commenter 14)

NRC response:

The NRC disagrees with these comments. Although the NRC did not include specific examples of waste and misuse of funds in the policy statement, as with any industrial process, costly mistakes can conceivably occur in decommissioning.

Also, the NRC disagrees that the policy statement represents regulation without benefit. The NRC has specifically promulgated decommissioning requirements in 10 CFR 50.82, which include licensee submission of a decommissioning plan for NRC approval. Specific requirements.for assuring the availability of funds for decommiscioning according to this plan are provided in 10 CFR 50.75. Although NRC regulations do not require e4plicit NRC approval of trust fund withdrawals, the intent of the regulations is to require licensees to maintain the entire amount of funds needed for decommissioning in a specified assurance mechanism before the NRC approves a licensee's decommissioning plan, notwithstanding any activities a licensee chooses to undertake before such approval. Thus, the NRC believes that the policy statement actually provides relief from the full decommissioning funding requirements of S $ 50.75 and 50.82, and, therefore, decreases rather than increases regulation.

As stated above, the decommissioning plan is closely tied to a licensee's provision of assurance to fund the decommissioning plan adequately. Without any NRC review of expenditures in advance of an approved decommissioning plan, the. decommissioning plan could become a shell and thus defeat the purpose of NRC decommissioning regulations.

Consequently, the NRC believes that a review mechanism is necessary to ensure the integrity of the decommissioning I

process. Similarly, because of the safety implications of inadequate decommissioning funds, the NRC believes it has responsibility for reviewing withdrawals, notwithstanding the reviews that rate regulators may perform. 4 l

9. Trust fund withdrawals should also be permitted for early decommissioning-related activities that, although not i

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9 themselves directly reducing radioactivity at the site, will significantly facilitate such activities when they subsequently occur. (Commenters 11 and 12)

NRC response:

The NRC agrees that trust fund withdrawals for activities that will facilitate future. decommissioning at shut down units should be allowed and will modify the policy statement accordingly.

10. The NRC should clarify footnote 2 to indicate that it applies to licensees of multi-unit sites. "So long as usage of trust withdrawals is identifiable with the shut down reactor and does not diminish decontamination funding subsequently available for reactors which.are continuing to operate, there is no reason why multi-reactor licensees should be treated differently than single-reactor licensees for purposes.of this policy statement." (Commenter 12)

NRC response:

The NRC agrees with this statement and will clarify the policy statement accordingly.

11. "If the NRC believas that NRC review and approval of pre-plan-approval decommissioning expenditures is necessary, it should act through rulemaking rather than policy... Since l prior NRC review of decommissioning fund withdrawals is not  ;

currently required, if the NRC wishes to impose such a l requirement, it should initiate rulemaking to revise its l decommissioning regulaticns accordingly." (Commenter 11) j NRC response:

i Tne NRC disagrees with this comment. As described in the response to Comment 8, the NRC believes thet the policy statement affords licensees the ability to make pre-plan-approval withdrawals that are arguably precluded by current  ;

NRC_ regulations and policies. As such, this policy statement represents regulatory relief. To implement this policy by i rulemaking would delay this relief or would require the NRC to issue case-by-case exemptions until final rulemaking has been completed. The Commission specifically chose to issue a policy statement to clarify the applicability of its regulations without either burdening licensees unnecessarily or compromising the protection of public health and safety.

However, because current NRC regulations are ambiguous, the  !

NRC will consider clarifying its general policies on l decommissioning trust fund withdrawals as part of the future broad decommissioning rulemaking that it is considering undertakiig.

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12. "The ' tacit consent' approach for reviewing licensee expenditure plans is inappropriate" and unsupported by the reasons the NRC stated for its policy. By expressly preserving the possibility that it would take action to prevent a fund withdrawal, the NRC blurs its asserted distinction between review and approval. Also, it is not clear that " tacit consent" and " approval" are legally distinguishable for purposes of determining whether the NRC l I

is engaged in a " licensing scLion" that could involve public participation and environment.a? review. (Commenter 11)

NRC response:

l The NRC believes that the tacit consent approach used in the policy statement is analogous to reviews of licensee actions taken pursuant to 10 CFR 50.59 that have been performed effectively for several years and is thus distinguishable from a more formal approval procedure. Although the NRC believes it should remain cognizant of licensee withdrawals from trust funds in advance of decommissioning plan approval, and should have sufficient information to take i action when egregious waste occurs, it does not believe that these withdrawals would normally warrant formal approval.

The NRC tried to strike a balance between appropriate '

j actions adequate to protect public health and safety but not overly burdensome to licensees. The NRC continues to believe that the tacit consent approach best strikes this balance.

13. " Criterion 1 ... should be revised to eliminate the provision that withdrawals must be for activities 'that would necessarily occur under most reasonable decommissioning scenarios. '" This phrase adds nothing to the preceding provision that the withdrawal must be for  !

" legitimate decommissioning activities." Because licensees  !

may face decommissioning expenditures for activities that are within the NRC's definition of decommissioning but nonetheless unique to their plant (s), the proposed provision is inappropriately restrictive. (Commenter 11) )

" Criterion 1 is overly restrictive and burdensome. . . If the NRC wants to prevent activities that preclude release of the site for (un] restricted use or are not in support of decommissioning efforts it should require review of the activity itself through any of the other available mechanisms such as 10 CFR 50.59 or special rulemaking. . . The basic premise is that in the event that there are circamstances or conditions which delay or preclude proceeding with the decommissioning ef fort there will be funds available to place the plant in a storage condition until the event or circumstance is resolved. Thus, as long ac the value of the fund does not fall below the regulatory required amount in ef fect at the time of the request the

11 withdrawal should be allowed. Thus, the only requirement should be that the utility document that [the] activity was a legitimate decommissioning activity and the expenditure was reasonable." (Commenter 14)

NRC response:

The NRC did not mean to imply that decommissioning activities unique to one site would not be eligible for pre-plan-approval trust fundLwithdrawals. Howev?r, because we agree that the phrase, " legitimate decommit;ioning activities," is sufficient, we will adopt this comment and eliminate the offending phrase. We believe that, as revised, criterion 1 would require the licensee to demonstrate only that the activity was a legitimate decommissioning activity and that the expenditure was reasonable.

14. "

...The explicit characterization as a decommissioning

' contingency' of the funding 'necessary to maintain the status quo' could be construed inappropriately to require that licensees include funding for that purpose in their decommissioning funds... If this criterion le~ retained, the language regarding provisions for this contingency should be deleted from the policy statement." (Commenter 11)

NRC response:

Having sufficient funds to return a facilj' 'o the status quo.after unexpected events is important srotecting public health and safety while the licensee develops revised decommissioning plans and, possibly, plans to obtain additional decommissioning funds to cope with the unforeseen events. If expenditures to maintain the status quo are necessary, the existing contingency inherent in NRC and licensee site-specific costs estimates should be more than adequate to cover such costs. If these costs causes the overall decommissioning cost estimate to increase beyond that available or projected to be available in a licensee's decommissioning fund in excess of the contingency, a licensee would i. ave to secure supplementary funding from its ratepayers or stockholders. Since a licensee would have to obtain supplemental funding regardless of the cause of a decommissioning cost overrun, it is not clear why the commenter is objecting to this particular contingency. We do not believe that a licensee would be forced to address this scenario in its decommissioning plans to any greater degree than any other contingent scenario.

15. "It does not seem necessary that NRC approve requests for the withdrawal of decommissioning funds for early equipment removal, prior to approval of the utilities [']

decommissioning plans. This does not seem in concert with i

12 the intent of the sample statement under Background '... the fund trustee should only release funds upon certification that decommissioning is proceeding pursuant to an NRC-approved plan.'" (Commenter 13)

NRC response: ,

As indicated in the policy statement discussion, trust agreements do not necessarily contain the referenced language. To afford licensees the ability to make withdrawals for decommissioning expenses when beneficial to do so, while at the same time ensuring that decommissioning funding assurance is not compromised, the NRC continues to believe that the procedures as discussed in the amended policy statement are appropriate.

16. ...This ruling may be judged as an item of Compatibility (for Agreement States). Since Maryland regulations, policies, etc. are expected to closely follow federal rules and procedures, we would be forced to adopt and allow our licensees to use the same principle." (Commenter 13) .

NRC response:

The NRC does not believe that this is an issue of State compatibility because the policy statement only applies to i power reactor licensees, which are exclusively NRC licensees, and because the policy statement is not a rule.

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PDR l RE Wo - ol 20.1406 Public Participation Plan (a) Each licensees required to submit a decommissioning plan pursuant to 5 30.36.40.42, 50.82. 70.38 or 72.54 or required to submit an application for permanent closure pursuant to 5 60.51 or 61.28. or required to submit a post shut down activities report or a license termination report pursuant to proposed i 50K shall include in the submittal a plan to inform and involve the public. State and local governments. Indian tribal governments, interested members of the community and other persons expected to be affected by the decommissioning, dismantlement or license termination of the facility. The scope of the public participation plan shall be commensurate with the scope and complexity of the decommissioning or dismantlement action. The public participation plan shall meet the 1

following specific objectives.

(1) Prior to the onset of decommissioning. dismantlement or termination activities:

(a) inform appropriate state. local and tribal governments; (b) inform effected sectors of the community of potential impacts of the proposed activities.

(c) provide opportunity for comment on the proposed decommissioning, dismantlement or termination; (d) address concerns of commenters; and (e) provide an mechanism for public participation in an advisory role as appropriate.

(2) During the decommissiomng. dismantlement or termmation activities:

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's (a) provide a mechanism by which affected parties will be informed of the progress of the activities.

(b) provided an meehanism for interested persons to express their concerns:

(c) address concerns of emnmenters; and (d) provide a mechane olic participation in an advisory role as appropriate.

(3) Upon cornpletion of the decominissioning. dismantlement or termination activities.

(a) make available to the public. state, local and tribal governments and other identified affected parties the results of final surveys; and (b) prm a opportunity for these persons to express their concerns: and (c) address concerns of commenters.

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