ML23156A146

PRM-030-061 - 61FR43193 - Nuclear Energy Institute Receipt of a Petition for Rulemaking

ML23156A146
Person / Time
Issue date:	08/21/1996
From:	NRC/SECY
To:
References
PRM-030-061, 61FR43193
Download: ML23156A146 (1)

Text

{{#Wiki_filter:ADAMS Template: SECY-067 DOCUMENT DATE: 08/21/1996 TITLE: PRM-030-061 - 61 FR43193 - NUCLEAR ENERGY INSTITUTE, RECEIPT OF A PETITION FOR RULEMAKING CASE

REFERENCE:

PRM-030-061 61FR43193 KEYWORD: RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete

STATUS OF RULEMAKING PROPOSED RULE: PRM-030-061 OPEN ITEM (Y/N) N RULE NAME: NUCLEAR ENERGY INSTITUTE, RECEIPT OF A PETITION FO R RULEMAKING PROPOSED RULE FED REG CITE: 61FR43193 PROPOSED RULE PUBLICATION DATE: 08/21/96 NUMBER OF COMMENTS: 6 ORIGINAL DATE FOR COMMENTS: 11/04/96 EXTENSION DATE: I I FINAL RULE FED. REG. CITE: FINAL RULE PUBLICATION DATE: I I NOTES ON: PET. REQ. AMENDMENT OF REGS GOVERNING TIMELINESS OF DECOMMISSIONIN STATUS G OF SITES AND SEPARATE BUILDINGS OR OUTDOOR AREAS. PETITION DENI OF RULE: ED (64FR18833, PUB. ON 4/16/99). /S/'D BY F. MIRAGLIA HISTORY OF THE RULE PART AFFECTED: PRM-030-061 RULE TITLE: NUCLEAR ENERGY INSTITUTE, RECEIPT OF A PETITION FO R RULEMAKING PROPOSED RULE PROPOSED RULE DATE PROPOSED RULE SECY PAPER: SRM DATE: I I SIGNED BY SECRETARY: 08/15/96 FINAL RULE FINAL RULE DATE FINAL RULE SECY PAPER: 99-042 SRM DATE: 03/19/99 SIGNED BY SECRETARY: 03/31/99 STAFF CONTACTS ON THE RULE CONTACT!: MICHAEL T. LESAR MAIL STOP: T-6D-59 PHONE: 415-7163 CONTACT2: ANTHONY DIPALO MAIL STOP: T-9F31 PHONE: 415-6191

DOCKET NO. PRM-030-061 {61FR43193) In the Matter of NUCLEAR ENERGY INSTITUTE, RECEIPT OF A PETITION FO R RULEMAKING DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT .05/29/96 05/24/96 PETITION OF THE NUCLEAR ENERGY INSTITUTE FOR RULEMAKING 08/16/96 08/15/96 FEDERAL REGISTER NOTICE - RECEIPT OF PETITION FOR RULEMAKING 10/28/96 10/18/96 COMMENT OF KENNECOTT URANIUM COMPANY {OSCAR PAULSON) { 1) 10/29/96 10/24/96 COMMENT OF SIEMENS POWER CORPORATION {L. J. MAAS) ( 2) 11/01/96 10/28/96 COMMENT OF WYOMING MINING ASSOCIATION {MARION LOOMIS, EXECUTIVE DIRECTOR) { 3) 11/05/96 11/04/96 COMMENT OF NATIONAL MINING ASSOCIATION {RICHARD L. LAWSON, PRESIDENT) ( 4) 11/05/96 11/04/96 COMMENT OF BABCOCK & WILCOX {ARNE F. OLSEN) { 5)

• 10/06/98 09/30/98 COMMENT OF NUCLEAR ENERGY INSTITUTE

{FELIX M. KILLAR, JR., DIRECTOR) { 6) 04/02/99 03/31/99 FEDERAL REGISTER NOTICE - DENIAL OF PETITION FOR RULEMAKING

I, DOCKET NUMBER PETITION RULE PRM 3o-t,/ (&/r:R~.3l'13) OOC t\ FT U ~?. P] NUCLEAR REGULATORY COMMISSION

                                                                                    '99   APR -2 A8 :42 10 CFR Parts 30, 40, and 70 OFr,  1 RUU AD,JL-C,              FF

[Docket No. PRM-30-61] Nuclear Energy Institute; Denial of Petition for Rulemaking AGENCY: Nuclear Regulatory Commission.

• ACTION: Denial of petition for rulemaking.

SUMMARY

The U.S. Nuclear Regulatory Commission (NRC) is denying a petition for rulemaking (PRM-30-61) submitted by the Nuclear Energy Institute (NEI). The petitioner requested that the NRC amend its regulations governing timeliness of decommissioning of sites and separate buildings or outdoor areas. Because the petitioner has provided no new significant information that would call into question the basis for the requirements in these regulations, the NRC denies the petition. To achieve the intent of the petition, NRC will develop guidance to clarify specific criteria to review licensee requests for alternate schedules for

• initiation of decommissioning of inactive contaminated sites.

ADDRESSES: Copies of the PRM, the public comments received, and the NRC's letter to the petitioner are available for public inspection or copying in the NRC Public Document Room, 2120 L Street NW, (lower level), Washington, DC 20555-0001. FOR FURTHER INFORMATION, CONTACT: Anthony DiPalo, telephone (301) 415-6191, e-mail, ajd@nrc.gov, of the Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001,

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SUPPLEMENTARY INFORMATION: The Petition On August 21, 1996 (61 FR 43193), the NRG published a notice of receipt of a PAM filed by the NEI. The petitioner requested that NRG 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 NRG 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, NRG regulations should not impose restrictions on facilities or sites that have the potential to impact commercial decisions. Further, the petitioner believes that NRC's current regulation is not necessary given the cohesiveness and maturity of the industry today. Public Comments on the Petition The notice of receipt of the PRM invited interested persons to submit comments. The comment period closed on November 4, 1996. NRG 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 PAM. 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.

2

The commenters believe that any company that has a valid NRC license and operates within the conditions of the license should have the right to decide when to start and stop operations, and when to place buildings or facilities in standby mode, rather than being forced to begin decommissioning.

2. Three commenters expressed the opinion that NRC's rationale requiring decommissioning after 24 months of inactivity is no longer practical, given the cohesiveness and maturity of today's nuclear industry. The commenters stated that NRC previously rejected a proposal for a standby mode because of the potential for site abandonment as a result of changes in a company's financial status, corporate takeover, or bankruptcy. The commenters believe that the nuclear industry has now matured and that poorly financed and poorly managed companies are no longer in business. The remaining companies are said to be stable and willing and able to assume the costs associated with keeping facilities in standby mode.

3. Two commenters argued that the Timeliness Rule is regulation by exception. These commenters believe that it would be better to include generic provisions in the regulations for maintaining a licensed facility in standby mode, rather than approving individual requests for postponement of the initiation of decommissioning.

4. One commenter argued the petitioner's case that the lack of a standby provision in the Timeliness Rule has the potential to eliminate important components from the nuclear industry. It is believed that these components and facilities may be needed in future years to support continuing operation and potential industry expansion. The commenter indicated that fuel cycle facilities operate in a constantly changing economic environment. Mines and mills that have been inactive for years are now beginning to start up because of improved economic conditions. The operating status of conversion facilities and enrichment plants has fluctuated in response to international policy and the influx of low- enriched products from countries of the former Soviet Union. Commercial facilities that support the armed forces must be prepared to respond if called on.

3

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 currer;itly contains provisions for granting licensees alternative time schedules for initiating decommissioning. NRC also believes that clarification of the specific acceptance criteria for granting alternative schedules could be achieved through the development of guidance.

2. NRC believes that the amendments requested by the petitioner would conflict with the primary purpose of the Timeliness Rule to effectively and efficiently clean up contaminated sites that pose a potential threat to public health and safety. The Timeliness Rule was promulgated in July 1994 to address those situations where decommissioning of contaminated sites was unreasonably delayed. The 24-month inactivity criterion related to decontamination of unused sites, separate buildings, or outdoor areas provides assurance that the licensee will undertake timely cleanup of inactive portions of its site while it is financially solvent.

3. Although the petitioner argues that the nuclear industry has matured and recognizes its responsibilities, that troubled licensees are no longer in business, and that NRC regulations provide adequate decommissioning funding assurance and transfer of ownership requirements, the NRC's experience with inactive materials licensees indicates the need for the timeliness

• provisions. In fact, since the Timeliness Rule became effective in 1994, approximately 25 material licensees have filed for bankruptcy. Past history with NRC materials facility decommissioning indicates that the approach taken through the Timeliness Rule is the appropriate one.

4. NRC believes that the petitioner is incorrect in asserting that the Timeliness Rule, as currently written, has the potential to eliminate important components from the nuclear industry infrastructure. For case-specific situations, delay of decommissioning is permitted by the current rule if the Commission determines that this relief would not be detrimental to the public health and safety and would otherwise be in the public interest. Licensees must describe why 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 be no adverse impact on the nuclear industry infrastructure. Since the effective date of the Timeliness Rule, August 15, 1994, fewer than 30 licensees out of several thousand have asked to delay decommissioning activities and only three of these requests were initially denied. Each denial resulted from a lack of adequate justification. After discussions with the licensees, two of these three requests were withdrawn and one request was approved. Based on the relatively few requests received to date, the NRC concludes that the Timeliness Rule, as written, is not overly restrictive. Further, since NRC has not denied any request to delay decommissioning that was supported with adequate justification, it appears that the rule is not having an adverse impact on licensees' commercial decisions, as suggested by the petitioner.

5. The Generic Environmental Impact Statement (GEIS), entitled "Final Generic Environmental Impact Statement on Decommissioning of Nuclear Facilities" (NUREG-0586),

prepared in connection with the 1988 modifications to the decommissioning regulations recommended prompt dismantlement of material facilities once they had permanently ceased operation. The GEIS concluded that decommissioning can be accomplished safely and at a reasonable cost shortly after cessation of activities. Further, the GEIS concluded that immediate decommissioning following cessation of activities eliminates the potential problems that may result from an increasing number of contaminated sites, and the potential health,

• safety, regulatory, and economic problems associated with maintaining an inactive nuclear facility. The Timeliness Rule imposed certain "action-forcing" requirements to ensure that the recommendations in the GEIS were met.

5

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 3I day of., 'f(J.1--~199f

• For the Nuclear Regulatory Commission.

1:fJ~ Deputy Executive Director for Regulatory Programs 6

                                                         *9s OCT -6 P4 :29                         Felix M. Killar, Jr.

DIRECTOR, Material Licensees & Nuclear Insurance Direct Line 202.739 .81 26 Internet fmk@nei.org F 00(,K T NUMBER September 30, 1998 PETITJON AUL RM 30 - IP/ ( {p/F~ '-13113) Mr. John C. Hoyle Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 ATTENTION: Docketing and Service Branch

REFERENCE:

Petition for Rulemaking - Docket No. 3061

Dear Mr. Hoyle:

In May 1996, the Nuclear Energy Institute (NEI), 1 on behalf of the material licensees submitted a Petition for Rulemaking pursuant to 10 CFR 2.800 et seq. NEI's petition requested that the Nuclear Regulatory Commission (NRC) amend 10 CFR 30.36, 10 CFR 40.42, and 10 CFR 70.38, to include a new section which would

• allow, within a predetermined time period, licensees to continue monitoring and maintaining facilities or parts of facilities which have been inactive for 24 months, rather than begin the decommissioning process.

Since we filed this petition, the NRC staff has acted on a number of requests submitted by our members for this type of monitoring and maintenance program instead of decommissioning. As a result of these requests, we understand the staff is in the process of developing guidance documents to provide clear directions and uniformity for staff review, and uniformity for licensee request submittals. If this activity is successful it may negate the need for further rulemaking and recognizing:> the resource constraints of the NRC, we request that our Petition for Rulemaking ~ be placed in abeyance until these guidance documents are completed. Q() N 1 NEI is the organization responsible for establishing unified nuclear industry policy on matters affecting the nuclear energy industry, including the regulatory aspects of generic operational and technical issues. NEI's members include all utilities licensed to operate commercial nuclear power plants in the United States, nuclear plant designers, major architect/engineering firms, fuel fabrication facilities, materials licensees, and other organizations and individuals involved in the nuclear energy industry. 1776 I STR EET , NW S U ITE 4 00 WASH I NGTO l'-1 . DC 20006-3708 PH ON E 2 02.7 39 8000 FA X 20278 5. 4 0 19

Mr. John Hoyle September 30, 1998 After our review of the final guidance documents, we will reconsider our Petition for Rulemaking. If we believe the guidance documents, and NRC's use of the guidance documents meets the need identified in the petition, we will withdraw the petition. However, if we find the guidance documents do not adequately address the intent of our petition, we will request the petition to be acted upon and the timeliness regulation appropriately revised. The industry is open to working with the NRC in the development of the guidance documents to avoid the second alternative. If you have any questions or require additional information, please let us know. Sincerely,

• i:!tt:f-c: John Greeves Donald Cool Carl Paperiello

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NUCLEAR ENERGY INSTITUTE

                                                        '98   OCT -6 P4 :29                               Felix M. Killar, Jr.

DIRECTOR. Material Licensees & Nuclear Insurance Direct Line 202.739.8126 Internet fmk@nei.org DOGKt: T NUMBER :c September 30, 1998 C '5 PETITION RULE PAM 30 - /p / 1- .:J rr c:, (;) J [t,/F~ L/3193) C- r-r;

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Mr. John C. Hoyle ""? c- I Secretary .:u ;. , (""' ,. '° U.S. Nuclear Regulatory Commission ' - 5: Washington, D.C. 20555-0001 ~

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ATTENTION: Docketing and Service Branch

REFERENCE:

Petition for Rulemaking - Docket No. 3061

Dear Mr. Hoyle:

In May 1996, the Nuclear Energy Institute (NEI), 1 on behalf of the material licensees submitted a Petition for Rulemaking pursuant to 10 CFR 2.800 et seq. NEI's petition requested that the Nuclear Regulatory Commission (NRC) amend 10 CFR 30.36, 10 CFR 40.42, and 10 CFR 70.38, to include a new section which would allow, within a predetermined time period, licensees to continue monitoring and maintaining facilities or parts of facilities which have been inactive for 24 months, rather than begin the decommissioning process. Since we filed this petition, the NRC staff has acted on a number of requests submitted by our members for this type of monitoring and maintenance program instead of decommissioning. As a result of these requests, we understand the staff is in the process of developing guidance documents to provide clear directions and uniformity for staff review, and uniformity for licensee request submittals. If this activity is successful it may negate the need for further rulemaking and recognizing the resource constraints of the NRC, we request that our Petition for Rule making be placed in abeyance until these guidance documents are completed. 1 NEI is the organization responsible for establishing unified nuclear industry policy on matters affecting the nuclear energy industry, including the regulatory aspects of generic operational and technical issues. NEI's members include all utilities licensed to operate commercial nuclear power plants in the United States, nuclear plant desigr Jrs, m11i 0r architect/engineering firms, fuel fabrication facilities , materials licensees, and other organizations and individuals involved in the nuclear energy industry. 1 776 I S TR EE T. NW SU ITE 4 00 W ASH I NG TO N , OC 20006 - 370 8 PHONE 202 730 8000 FAX 202 78 5 40 1 0

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7 J Mr. John Hoyle September 30, 1998 After our review of the final guidance documents, we will reconsider our Petition for Rulemaking. If we believe the guidance documents, and NRC's use of the guidance documents meets the need identified in the petition, we will withdraw the petition. However, if we find the guidance documents do not adequately address the intent of our petition, we will request the petition to be acted upon and the timeliness regulation appropriately revised. The industry is open to working with the NRC in the development of the guidance documents to avoid the second alternative . If you have any questions or require additional information, please let us know. Sincerely,

• i:xt!l-c: John Greeves Donald Cool Carl Paperiello

UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555-0001

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DOCKET NUMBER PETITION RULE PAI ~6I Babcock & Wilcox a McDermott company ( ~ I F 'R LJ 3 1 q' Naval Nuclear Fuel Division P. 0. Box 785 Lynchburg, Virginia 24505-0785 (804) 522-6000 November 4, 1996 96-118 Secretary ATIN: Docketing and Service Branch U.S. Nuclear Regulatory Commission Washington, DC 20555

Reference:

Docket No. PRM-30-61 Gentlemen: Babcock & Wilcox, Naval Nuclear Fuel Division, (B&W) submits the following comments regarding the referenced Petition for Rulemaking that was submitted by the Nuclear Energy Institute (NEI). B&W agrees with and supports the petition. It is our belief that 10 CFR 70.38, as it currently exists, is too intrusive into the business aspects of licensee operations. In many cases, facilities, or separate outdoor areas which are curently not being used may be needed to remain competitive for future business ventures. Decommissioning to fulfi.1110 CFR 70.38 requirements is not necessarily good business unless the facilities or areas have reached the end of useful life. The licensee is in the best position to judge when the "end of useful life" has been reached. 10 CFR 70.38 does provide for requesting a delay in decommissioning, however, requiring the Jicensee to justify retaining unused facilities is an unnecessary and expensive exercise for both the licensee and the NRC. NRC already has assurance that funds will be available for decommissioning at the end of plant life and regulations and license conditions to assure the protection of the public health and safety. The referenced petition permits licensees to leave dormant facilities in place by maintaining financial assurance for decommissioning, providing a monitoring and maintenance program to ensure the continued protection of public health and safety, and providing financial assurance to support the monitoring and maintenance program. B&W believes that the proposed rule change will provide NRC with the means to assure protection of the public and the environment from dormant facilities or separate outdoor areas while also permitting licensees to retain valuable assets necessary to secure future business. We encourage the Commission to adopt the NEI proposed rule change. JA.N O 7 1997

                                                                ~cknowledged by card .. H . . . . . M*U,U t;;-;;--

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U.S. Nuclear Regulatory Commission November 4, 1996 Sincerely,

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Arne F. Olsen Licensing Officer

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                                                                                                                                    *95 ND -5 P4 :20 National Mining Association Foundation For America's Future OFF /r. - ,~;:- c:

Richard L. Lawson DOCK[ , **,u ._, i=t ,:.li November 4, 1996 Secretary DOCKET NUMBER U.S. Nuclear Regulatory Commission PETITION RULE PRII Sco_ -{, I Attn: Docketing and Service Branch { 6 I FR Lj 3 11 3) Washington, D.C. 20555 RE: Nuclear Energy Institute Petition for Rulemaking, Docket No. PRM 30-61

Dear Sir:

On August 21, 1996, the Nuclear Regulatory Commission (NRC) published a receipt of petition for rulemaking from the Nuclear Energy Institute (NEI). 61 Fed. Reg. 43,193. NEI' s petition requests that NRC amend its timeliness in decommissioning regulations governing monitoring and maintenance programs for the decommissioning process at facilities of special nuclear materials licensees. The requested amendments would allow materials licensees to continue monitoring and maintaining facilities, separate buildings, or outside storage areas that have not been used for 24 months rather than requiring licensees to begin the decommissioning process after 24 months of inactivity. Specifically, NEI asks NRC to amend its timeliness in decommissioning regulations to provide a "standby" period. The National Mining Association (NMA) agrees with the reasons advanced in support of a standby provision that are set forth in NEI' s petition and supports NEI' s petition in the context of the comments that follow. NMA's members represent producers of most of America's coal, metals, industrial and agricultural minerals; manufacturers of mining and mineral processing machinery and supplies; transporters; financial and engineering firms; and other businesses related to coal and hardrock mining. These comments are submitted by NMA on behalf of its member companies who are NRC licensees. These members include the owners and operators of uranium mills and mill tailings sites and in situ uranium production facilities. In support of its petition, NEI asserts that NRC's final timeliness in decommissioning requirements have the potential to eliminate important components from the nuclear industry infrastructure as a result of the lack of an alternative monitoring and maintenance program. NEI maintains that materials licensees understand the marketplace and are willing to assume the holding costs to keep facilities in standby mode . Further, NEI contends that NRC should

                                                                                                        ~cknowledged by card JAN o 7 1997__

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not have jurisdiction over the "commercial decisions" of its licensees and that NRC's concerns regarding failed financial assurance and transfers in licensee ownership which could affect public health and safety are unsound. NMA supports NEI' s rulemaking petition and the reasons upon which it is based; in the interim of a decision on the petition, however, perhaps the understandings developed between NMA and NRC that resulted in the dismissal of NMA' s litigations challenging the final timeliness in decommissioning rule can provide some guidance to NEI's (and other) materials licensees who seek to maintain standby status. On September 6, 1996, the American Mining Congress (now the National Mining Association) filed suit in the United States Circuit Court of Appeals for the District of Columbia (Docket No. 94-1619) challenging NRC's final timeliness in decommissioning rules on behalf of its uranium recovery licensee members. Subsequently, NMA and NRC entered into negotiations to address issues of concern to NMA' s members and the litigation was accordingly held in abeyance. (See Attachments A-D.) Some of the matters discussed in these negotiations were discrete uranium recovery issues. Others, including specifically the lack of a provision allowing for standby status, were more generic in nature. NMA's members expressed virtually identical concerns to those of NEI' s materials licensees with respect to the lack of a provision for standby operation. For example, NMA's licensees also suggested that NRC should not involve itself in the commercial decisions of uranium recovery licensees since the international commodity market for minerals frequently result in mining/milling operations being put on standby for years. Additionally, NMA suggested that NRC's concerns about standby operations over extended timeframes (i.e., that standby status for longer than 24 months could lead to loss of key licensee personnel, laxity in management interest, bankruptcy, etc.) essentially suggest that during the standby timeframe, NRC would not be fulfilling its regulatory responsibilities. During the negotiations, NRC remained adamant that the final rules provide flexibility to address standby operations because licensees are able to request an exemption to the requirement to commence decommissioning after 24 months of inactivity. Although the practice of granting exemptions is not currently in favor at NRC, nevertheless, within the context of the negotiations that resulted in settlement of the litigation, NRC and NMA reached agreement on several points that are directly related to the issue of standby status:

a. To the extent that specific licensee provisions regarding the completion of decommissioning activities exist or are required in the future, these specific licensee timetables will be controlling rather than the general requirements of the timeliness rule;

b. A licensee in good standing may reference relevant records (inspection reports, amendment requests, responses to NRC inquiries etc.) to demonstrate standby status will not jeopardize public health and safety, along with economic (e.g.,

viable contracts for product) and "public interest" justifications (e.g., future needs of the electric utility industry) for allowing a facility to remain on 2

standby. While the demonstration that public health and safety will be protected should be straightforward, the demonstration of "otherwise in the public interest" is more complex but licensees will have considerable freedom to develop a rationale;

c. An exemption can be granted for a period longer than 24 months (i.e.,

currently five years 1} and there is no limit on the number of consecutive exemptions that can be requested by a licensee and granted by NRC. In conclusion, NMA notes that if current anti-exemption policy pressures at NRC in any way suggest that exemptions for standby status may be disfavored, then the bases for dismissal of NMA' s challenge to the timeliness in decommissioning regulations could be called into question. Good faith considerations would, at a minimum, require reconsideration of NRC's final rules to specifically allow for standby status as requested in NEI's petition. NMA appreciates the opportunity to comment on this matter. If you have any questions or if we can be of assistance, please contact Katie Sweeney, NMA Associate General Counsel at 202/463-2627. Sincerely,

                                       ~-

Richard L. Lawson 1 In light of NRC's decision to extend certain uranium recovery licenses from five to ten years (SECY-96-112, May 21, 1996) the standby exemption time period of five years should be reevaluated. 3

A+-toc:hmtn+ A SHAW, PITTMAN, POTTS & TROWBRIDGE A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS 2300 N STREET. N.W. 900 THIRD AVENUE WASHINGTON, D.C. 20037-1128 NEW YORK, NEW YORK 10022--4728 (202) 663-8000 FACSIMILE 1 501 FARM CREDIT DRIVE (202) 663-8007 McLEAN, VIRGINIA 22102-5000 115 SOUTH UNION STREET ALEXANDRIA, VIRGINIA 22314-3361 ANTHONYJ.THOMPSON 201 LIBERTY STREET. S.W. (202) 683-9198 LEESBURG, VIRGINIA 22075-2721 August 25, 1995 By Hand Delivery Steven F. Crockett, Esq. U.S. Nuclear Regulatory Commission One Whiteflint North 11555 Rockville Pike Mail Stop #0-15-B-18 Rockville, MD 20852 Re: American Mining Congress v. Nuclear Regulatory Commission and The United States, Docket No. 94-1619

                          - Challenge to Final Timeliness in Decommissioning
                       ,* Rule fr~/~

Dear 7----**--t:

Thank you and your colleagues for taking the time to meet with us on January 10, and again on July* 6, 1995 to discuss resolution of the American Mining Congress' (AMC) judicial challenge to the Nuclear Regulatory Commission's (NRC) final timeliness in decommissioning rule (59 Fed. Reg. 36,026, July 15, 1994). As you know, on February 13, 1995, AMC merged with the National Coal Association to establish the National Mining Association (NMA) so henceforth your dealings on these issues will be with the new organization. NMA believes that the meetings made significant progress towards addressing its concerns with the final rule. NMA does, however, wish to take this opportunity to express its ongoing objection to routine regulation by waiver, exemption, or exception. This type of regulatory practice poses the continuing potential for inconsistent decisions over

SHAW, PITTMAN, POTTS & TROWBRIDGE A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS Steven F. Crockett, Esq. August 25, 1995 Page 2 time, particularly, when there are major changes in agency personnel. This letter, written on behalf of NMA, sets forth its uranium recovery facility licensee members' understanding of how NRC will apply the requirements of the timeliness rule to their facilities. NMA requests that NRC confirm in writing whether NMA's understanding is correct. Assuming NMA's understanding is correct, NRC's response should provide an adequate basis to settle and dismiss the above-referenced action. If there are aspects of NMA's understanding that NRC deems incorrect, further discussions may be necessary. (1) First, with respect to the 24-month timeframe for completion of decommissioning activities, NMA recognizes that this requirement is intended to apply only to the mill areas and not to the tailings. The final rule notes that "§40.42 applies to the uranium processing facilities." 59 Fed. Reg. at 36,031. It also states in 10 C.F.R. §40.42(k): "Specific licenses for uranium and thorium mills are exempt from paragraphs (d) (4) (f) and (g) of this section with respect to reclamation of tailings impoundments and/or waste disposal areas." .Id. at 3603. At many sites, however, it may not be possible to dispose of the mill within 24 months because of site specific license requirements that schedule burial at some appropriate time which may not be within the 24-month period. Site reclamation is an integrated process based on site specific circumstances, management decisions and approved plans and submittals.u It is inappropriate to simply assume that mill disposal can automatically be completed within 24 months from the beginning of the site closure process. Thus, u In addition, not all mills are disposed in the tailings pile but may be buried somewhere else on site. To the extent that any such portion of a site is being "used for disposal of byproduct material" it, along with the tailings, will be transferred to the state or federal government for perpetual licensing as a restricted site and, thus, would not be subject to the decommissioning requirements in Part 20 but rather would be subject to the requirements of 10 C.F.R. Part 40, Appendix A.

SHAW, PITTMAN, POTTS 8c TROWBRIDGE A PARTNERSHIP lNClUOING PROFESSIONAL COAPOAATIONS Steven F. Crockett, Esq. August 25, 1995 Page 3 specific timetables for the various components of site closure must be and are established in site licenses. NMA's

Conclusion:

It is NMA's understanding that where specific license provisions regarding the completion of decommissioning activities exist, or are required in the future, these specific license timetables will be controlling rather than the general requirements of the timeliness rule. (2) Second, with respect to the 24-month inactivity period for facilities on "standby," NMA understands that NRC believes "flexibility has been built into the final rule so that a licensee can file for an exemption from having to commence decommissioning following 24 months of inactivity." 59 Fed. Reg. at 36,032. The rule provides that extensions of the 24-month period of inactivity can be granted if NRC determines that "this relief is not detrimental to the public health and safety and is otherwise in the public interest."

        .ld. The criteria by which this broad standard may be satisfied are not explained. At our meetings, NRC has indicated that an exemption from the 24 month inactivity trigger would be granted if the criteria noted above are satisfied (which NRC assumes will not be a major undertaking)
        .and the licensee has posted adequate surety.

Presumably, these criteria 1re essentially satisfied by the existence of a valid license. Uranium recovery facility licenses contain multiple requirements, including financial surety, protection of on-site workers, and other elements that protect the environment and the public interest whether the site is actively in production or not. Indeed, NRC asserts that it exercises full and complete oversight over standby sites and, therefore, charges them the same annual fee as that for an actively operating facility . .s.e.e, 59 Fed Reg. 36895 (July 20, 1994). Recently NRC noted that "(t]he choice of whether or not to exercise that authority is a business decision of the licensee." 60 Fed. Reg. 20918 (April 28, 1995). Also, NRC not only has a "history" of site compliance

SHAW, PITTMAN, POTTS & TROWBRIDGE A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS Steven F. Crockett, Esq. August 25, 1995 Page 4 but a history of licensee submittals both to prepare a facility for standby and to prepare it for resumption of operations. Thus, almost by definition, unless NRC is not fulfilling its responsibilities, the licensee must be satisfying the "not to the detriment of the environment," and "otherwise in the public interest" requirements. NMA's conclusions:

a. With respect to showing that continued standby status is "not detrimental to the environment" and is "otherwise in the public interest", NMA assumes that, unless a licensee plainly has failed to fulfill its license requirements or has done so haphazardly (which would presumably result in a pending or contemplated enforcement action), this determination would be a pro rorma exercise since NRC must regulate and oversee licensees whether they are on standby or not, particularly if licensees are being charged for it. And, presumably, NRC would not have granted a license in the first place unless these requirements were going to be met. To the extent there are concerns raised by an extension, additional license conditions could address any such concerns and provide NRC with the necessary comfort level.

b. With respect to the surety requirement, it is NMA's understanding that the amount of the surety would be based on the amount approved by NRC or, if there is no approved amount, on the licensee's estimate of costs for final site reclamation. If there is no approved amount or no estimate, then the amount of the surety required would be subject to discussions between NRC and the licensee.

(3) Finally, it is NMA's view that the provisions of the timeliness rule do not limit the amount of time for the extension or waiver of the 24 month period merely to another 24 month period. Moreover, given the nature of the uranium recovery market, NMA anticipates that licensees may need to make multiple requests for extensions of the inactivity

SHAW, PITTMAN , POTTS & TROWBRIDGE A PARTNERSHIP INCLUOINO PROFESSIONAL CORPORATIONS Steven F. Crockett, Esq. August 25, 1995 Page 5 period.u However, NMA notes that this seems both cumbersome and unnecessary when the Commission could simply put a specific condition in the license allowing a longer standby term since the licensee must satisfy the "not to the detriment" and "in the public interest" criteria notwithstanding the requirements of the general timeliness in decommissioning standard. This would be a sensible approach since, as noted above, the general provisions of the rule will not control the time of mill reclamation or for that matter any other reclamation activities controlled by specific license conditions. In the alternative, if the licensee proposes a longer timeframe than 24 months (up to 5 years) and provides a basis for needing a longer timeframe, this should be satisfactory to NRC. As noted above, most licenses will contain sufficient requirements to address any concerns NRC may have in terms of protecting the public health and safety and the environment during a standby period. NMA s

Conclusions:

1 NMA assumes that there is no limit on the number of extensions that a licensee can receive. If the requisite conditions have been met (adequate surety and not detrimental to the environment and otherwise in the public interest), a facility will, if necessary, be granted continued extensions. Indeed, given the unique nature of the uranium industry's stand-by situation, licensees could request an exemption from the 24 month period for a period of time ranging from 24 months to 5 years. At the end of the agreed upon time, the licensee would have the option of requesting another exemption/extension. NRC's processing of these requests would be proforma, unless specific concerns are identified by the licensee or raised by NRC. It is worth noting that virtually~ site requiring a site specific advisory board, {SSAB) as proposed in NRC's decommissioning and decontamination rulemaking proceeding (59 Fed. Reg. 43,200, August 22, 1994), will likely require multiple extensions as well.

SHAW, PITTMAN, POTTS 8c TROWBRIDGE A P'ARTNERSHIP I NCLUDING PROFESSIONAL CORPORATIONS Steven F. Crockett, Esq. August 25, 1995 Page 6 In the alternative, the appropriate timeframe could be established as a license condition which would be controlling over the general requirements of the timeliness rule. NMA and its licensee members look forward to your response. If you have any questions about the substance or intent of this letter, please do not hesitate to call me at 202/663-9198. Sincerely,

                                                           /i--Z (__ ,~,

Anthon; rlmpson AJT/clc cc: Mr. Joseph Holonich 113921-01 I DOCSDCI

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• 7 February 16~ 1996 { -1 :, * '. J.[! *e ,'{* ( ic (*/4 .1 l l >- 7 J _

Tl A / /:{ 7-'/ Y.? {)-?/ ):J!(d; Anthony J. Thompson. Esq. Shaw~ Pittman, Potts & Trowbridge c:* . -:~. _) t' Ct ti [ .Vi !Tc T c'T:'. c. .* 2300 N Street~ N.W. c~5cc/ J J (~-;(f'(l / ft / ~j l't, ct~ - Washingtont DC 20037-1128 c-1 ( l.(, -~ti; c.: *h 0

SUBJECT:

TIMELINESS IN DEcotllISSIONIN& RULE , U. *IZ't* l~i ,:1:-( (/:-r:_:-., 1

                                                                                         ?                                                            ,j -r

Dear Mr. Thompson:

                                                                          -) ll/ZC               . /i,:. '    I! c    f-r~   '1-f J'4 /   -:;

J-?--z r /.:. 1;1~ / / 7 1. 'I ;r-:. c *-J--:7 TMs letter is in response to your letter of August 25, 1995, to Steven f. -j/..i {. :.: ~ 1" 7 .1 .., Crockett of the Nuclear Regulatory Caa.ission's Office of the General Counsef: - Your latter, written in behaif of the National .Mining Association (NMA), set -)11,/:tlf// , forth the NMA members' understanding of how NRC will apply the Timeliness in .. , Oec01111iss1on1ng rule (59 ER 36026~ July 15, 1994) to uranit111 mills. Based on ~* /...£.d. ttfc / your letter, we believe ther-a needs to be additional clarificatfon of the NRC :> 1-) 1

                                                                                                                                            ,7a ') I staff's positions. Therefore, I have attenrpted to address the conclusions                                                    ~7L~

• tf)*.

highlighted in your letter ~Y ~lea~ly rest~t ing the NRC' s position.s. Th_e __ .> {~{lid-(( ftJJ/ i enclosure contains the clar1fyrn9 1nforwat1on_ -:- (_i1UJ/1tT; -;i, c~7!., ft/,;~"~'t:. / t -'(J 771 I hope you fin<1 that the information provided clar1fi:-- J~i*(os;<<cn . .'Ma.'1i£~k, the 24 month time period for submitting notification to NRC as required by the rule~ expires next August, it is important that licensees begin preparing their requests if they wish to reaain in standby status and not be<jin decomissioning activities. If you have any questions on the enclosure, please feel free to contact either me or Mike Fliegel of my staff. I can be reached at (301) 415-7238 and Or. fliegel can be reached at (301) 415-6629. Sincerely,

                                               ~_/,~~

Joseph J. Holonich, Chief Uranium Recovery Branch Division of Waste Management Office of Nuclear Materia1 Safety and Safeguards

Enclosure:

As stated l.01ZlBE:SS?;IZl?;' a I

U.S. Nuclear Regulatory Co111J1ission Staff Response to National Mining Association Coaaents on Decomissioning Timeliness Rule Coarnent 1 National Mining Association (NNA) C011111ent It is NMA's understanding that where specific license prov,s1ons regarding the c011pletion of decormtissioning activities exist, or are required in the future~ these specific license tit11etables will be controlling rather than the general requirements of the timeliness rule. Staff Response The staff agrees with this conclusion. COfflllent 2 NNA Cca1ent With respect to showing that continued standby status is *not detrimental to the environment" and is "otherwise in the public interest*, NMA assumes that, unless a licensee plainly has failed to fulf111 its license requirements or has done so haphazardly {which would presum.ably result in a pending or contemplated enforcement*action), this determination would be a pro fonna exercise since the U.S. Nuclear Regulatory Comission must regulate and oversee licensees whether they are on standby or not, particularly if licensees are being charged for it. And? presumably, NRC would not have granted a license in the first place qnless these requirements were going to be met. To the extent there are concerns raised by an extension, additional license conditions could address any such concerns and provide NRC with the necessary comfort level. Staff Response The staff believes there are a number of clarifications that n~ to be made in response to this co11111ent.

1. The standard requi"res a detennination* that continued standby status

             * ... is not detrimental to the public health and safety (emphasis added],ft not *the environ~nt* as stated in the NMA conclusion.

2. The detemination is not a pro forrH exercise. The licensee must show that continued standby status will not be detrimental to public health and safety. In a meeting held on January IO~ 1995~ and documented in the NRC letter to James E. Gilchrist of the American Nining Congress dated February 2, 1995? NRC stated that addressing this issue should be relatively simple and straightforward. The licensee can reference the safety requirements alreMly contained in its license and NRC inspections of its facility as the demonstration that it is maintaining an adequate level of protection of public health and safety. We stated that NRC envisions a relatively short statement frona the license~ addressing this SE/E 3!:l'a'd L.008E:99Z:0c;*al

2 aspect of§ 40.42{e}. However, as was stated by the staff during the January ID, 1995 meeting, the ~eview would involve at a minimum an evaluation of the license to ensure that all necessary conditions were included and correct. The staff review was not characterized as a pro fora.a exercise.

3. The determination that continued standby status * *** is otheniise in the public interest* is separate from the public health and safety determination. NRC stated at the January 10, 1995, meeting that the licensee will have to discuss why its proposal to delay decomissioning is in the public interest. NMl\'s conclusion that unless a licensee is not fulfilling its license requirements, the fact that it was originally granted a license resolves this issue, is clearly incorrect for the foll°"ing reasons;

a. Properly fulf111ing its license requirements is a rnKessary conditton for befng in the public interest but not necessarily a sufficient condit1an. It is not clear how the fact that a facility is complying with its license leads one to conclude that continual standby is in the public interest.

b. CHRc. originally granted licenses 1 in most cases many years ago, to these facilities to produce uranium. The public interest now 1 or in the future~ for uranium production may be different than when the original license was granted. furthermore, the standby request is not to produce uranium but to await changes to market conditions that *ight (or might not) eventually lead to uranium production.

iherefore 1 a request for an exemption would have to sha., wh~ continuation in a standby status is -1n the public fnterest-=--.Jfor more on the public interest showing, see the Staff Response to Connent 3. Co11111ent 3 NM Collllent With respect to the surety re~uirement, it is HHA's understanding that the amount of the surety would be based on the amount approved by NRC or~ if there fs no approved a1110unt. on the licensee's estimate of costs for final site reclamation. If there is no appr<>ved amount or no estimate, then the amount of the surety required would be subject to disc*Jssions between NRC and the licensee. Staff Response As stated by NRC at the January 10 1995, meeting, the surety issue is tied to 7 the deter11ination of whether continued standby status is in the public interest. All licensees are required by regulation to have in place, financial assurance based on an NRC-approved reclamation plan. In nany cases, the surety based on the approved plan will be the surety that satisfies the public interest. However, there have been situations in which it was SE/17 3::>'ltd l.01Z18ES9c.121c.' a I

3 recognized that the approved reclamation plan needed upgrading. In some of those situations it was also recognized that the cost to implement the ~evised reclamat;on plan, and thus the amount of surety needed, would be substantially greater than for the existing, approved plan. However, until the revised reclamation was fonnally approved by NRC and incorporated in the license, the surety was based on the old reclamation plan. It can sometimes take several years of review, discussion, and revision to achi@ve a reclamation plan that is approved by NRC. Although the licensee would have a surety based on an KRC accepte given the unique nature of the uranium industry's stand~by situation, licensees could request an exeffll,')tion from the 24 month period for a period of ti111e ranging from 24 months to years. At the end of the agreed upon time~ the licensee would have the option of requesting another exemption/extension. NRC's processing of these requests would be pro form*~ unless specific concerns are identified by the licensee or raised by NRC. Staff Response Several aspects of this conclusion repeat the misunderstandfngs of previous conclus,ans {i.e., the test is related to public health and safety> and the adequacy of surety is a COIIPOftent of the test of being in the public interest) and ft again assumes a pro ,a,.,.. process,ng of request. Please see the. clarification provided for those connents. The conclusion that there is no li*it to~ nUJllber of extensions that a licensee can receive~ is correct. Coll'lllent 5 NNACoaent In the alternative, the appropriate timeframe could be established as a license condition which would be controlling over the general requirements of the timeliness rule. SE/S l.008E99C:.0l.'01

4 staff Response The staff does not ~iew a license condition as an alternative approach. We expect that in any instance in which we grant an extension of the time a licens~e ~an recaain on standby, the extended time period would be established in the license. Since that otension would have been granted in conformance with§ 40.42(e), we do not see a conflict between the n.tle and the license condition. SE/S

A-f~ ac h m <.nf ~ SHAW, PITTMAN, POTTS & TROWBRIDGE A PARTNERSHIP INCLUOINO PAOl"ll!:BSIONAL CORPORATIONS 2300 N STREET, N.W. 900 THIRD AVENUE WASHINGTON, D.C. 20037-1128 NEW YORK, NEW YORK 10022-4728 (202) 663-8000 FACSIMILE 1501 FARM CREDIT DRIVE (202) 663-8007 McLEAN. VIRGINIA 22102-SOOO 115 SOUTH UNION STREET ALEXANDRIA, VIRGINIA 22314-3381 ANTHONY J . THOMPSON , P .C. March 25, 1996 201 LIBERTY STREET. S .W . (202) 883-9198 LEESBURG, VIRGINIA 22075-2721 Mr. Joseph J. Holonich Chief Uranium Recovery Branch Division of Waste Management Office of Nuclear Material Safety and Safeguards U.S. Nuclear Regulatory Commission 115 55 Rockville Pike Rockville, Maryland 20855 Re: Final Timeliness in Decommissioning Rule

Dear Joe:

I appreciate your recent response to my August 25, 1995 letter regarding the National Mining Association's (NMA) concerns with the final timeliness in decommissioning rule. While your letter helps to clarify some of the issues raised in our letter, it also further muddles one major issue. It remains entirely unclear what NRC means by "otherwise in the public interest." Indeed, the entire discussion of this issue in NRC's response lacks both substance and clarity. Paragraph 3b of the response seems to imply that NRC will consider whether remaining on standby status is in the best economic interests of the licensee. If I am reading 3b correctly, NRC's position has regressed to one put on the table over a year ago and later withdrawn by Mal Knapp. In any event, such a determination is not an appropriate function of the Commission. NRC's job is to determine whether a licensee can be or is in compliance with license conditions and has the necessary financial capability to maintain compliance. Character issues, foreign ownership, etc. may be relevant to the propriety of allowing a licensee to possess and manage nuclear materials, it is not, however, NRC's responsibility to judge the best economic interests of the licensee - in this case that is, whether the licensee should or should not remain on standby. As a purely regulatory agency with no industry promotional responsibilities, NRC seems particularly ill-suited to making such judgments. It is important to clarify NRC's position on this issue as your response essentially has left us

SHAW, PITTMAN, POTTS & TROWBRIDGE A PARTNERSHIP INCLUDING 'PROFESSIONAL CORPORATIONS Mr. Joseph J. Holonich March 25, 1996 Page 2 scratching our heads. NMA requests that NRC explain exactly what it means by "otherwise in the public interest." I might also mention that my letter did not mean to suggest anything more than that which John Greeves has said on several occasions by using the term proforma. The determination to allow a facility to remain on continued standby status normally will not be a major project for the NRC staff unless specific problems are identified by the licensee or NRC. This process should be, as you stated, straightforward and simple. Yet in an apparent effort to be extra careful not to limit NRC's authority to deny an exemption request, your letter once again may heighten licensee distrust of the process. NMA continues to want to resolve this matter and to bring to closure the appeal pending in the D.C. Circuit. NMA's members who are uranium recovery licensees seek clarification of the issues raised above to facilitate the process of requesting extensions of the deadlines in the timeliness rule. If the licensees do not understand how NRC interprets the rule, it will be difficult to address adequately the Commission's concerns. Sincerely, cc: Steven F. Crockett

A-H- ~ ~~~~

                                ~1~~s~~Qf f)

NUCLEAR REGULATORY COMMISSION WASHINGTON, O.C. 20555--0001 June 3, 1996 Anthony J. Thompson, Esq. Shaw, Pittman, Potts &Trowbridge 2300 N Street, N.W. Washington, D.C. 20037-1128

SUBJECT:

TIMELINESS IN DECOMMISSIONING RULE

Dear Mr. Thompson:

I am responding to your March 25, 1996, letter on behalf of the National Mining Association (NMA). I hope that, by clarifying the U.S. Nuclear Regulatory Commission's position on one matter, I can move us closer to resolution of what appears to be the only issue remaining between us. In your letter you ask us to clarify what we mean by "otherwise in the public interest." You are particularly concerned that paragraph 3.b of my response to comment 2 in my February 16, 1996, letter to you may mean that the NRC intends to judge the best economic interests of licensees. We have no such intention. Paragraph 3 was meant to make two chief points, both of which are ultimately tied to the agency's safety mission, and not to any desire by the NRC to exercise judgement about private economic interests. First, compliance with safety standards is necessary for a time extension, but not sufficient. Second, the time extension must also be "otherwise in the public interest," and while adequate surety, of the sort discussed in the attachment to my February letter, is an important part of being "otherwise in the public interest," it is not the whole. Our chief concern here remains, as always, health and safety. We want to know that there are good reasons for believing that it is in the public interest to allow an inactive facility to remain undecommissioned.

• In reaching a determination about the public interest, the NRC does not intend to judge whether continuation of standby status is in the applicant's best economic interests. Those interests might, or might not, coincide with the public interest. A public interest argument might be based, for example, on Federal concern for the domestic uranium mining industry. Existing statutes oblige the Secretary of Energy to gather information on the uranium mining industry and to have a "continuing responsibility" for the domestic industry, "to encourage use of domestic uranium." See 42 U.S.C. §§ 2201b and 2296b-3.

Although this responsibility is not the NRC's, the NRC recognizes that the viability of the industry is a Federal concern. Paragraph 3.b in the enclosure to my February letter permits an applicant to argue that the policies behind the cited provisions support the application for time extension. There may be other, similar, arguments that could be made, e.g., a public interest argument based on possible future needs of the electric utility industry or on national defense. Some of these arguments may depend on

A. Thompson 2 circumstances unique to a given applicant. Therefore, we have avoided attempting to def i ne ex hau st i vel y "the pub l i c i nt e re s t. " The NRC ' s r ul e perm it s each applicant for a time extension to make the arguments most relevant to its circumstances. I hope that this clarification removes NMA's rema1n1ng concern, and that this letter, together with your March 25, 1996 , letter, my February 16, 1996, letter, and your August 25, 1995, letter, constitute a sufficient record to guide members of the NMA who want to file for time extensions. I would hope also that the same letters can serve as the basis for filing a motion for voluntary dismissal in the D.C. Circuit. I look forward to your response. Sincerely,

                                                 ~/~~J Joseph J. Holonich, Chief Uranium Recovery Branch Division of Waste Management Office of Nuclear Material Safety and Safeguards

(i) ~~,_W_Y_O_M_I_N_G_M_I_N_I_N_G_A_S_~~~~-~G-~_A_T_I_O_N_ PHONE 635-0331 "96 NOV -1 A11 :s1AREA CODE 307 HITCHING POST INN

                                                                                     . , . .        P. 0. Box 866 October 28 1996 OF *,- i r*t r, r: f-     I   '
                                                                                    - 'r - , Cheyenne, Wyoming
                                                           '       DO t\ t, 1. -.  .. ' , I *' I;        82003 Secretary U.S. Nuclear Regulatory Commission DOCKET NUMBER Washington, D.C. 20555-0001 Attn: Docketing and Services Branch                PETITION RULE PIii'                *, 6 /

(61 FR LJ3J9j) Gentlemen: The Wyoming Mining Association (WMA) is an industry association of mining companies in Wyoming comprised of mining companies and associates (suppliers, vendors, contractors, etc.). Among these members are a number of uranium recovery licensees. The WMA has reviewed the Petition for Rulemaking from the Nuclear Energy Institute (NEI), Docket No. PRM-30-61, published in the Federal Register on August 21, 1996 (Volume 61, Number 163) page 43193-43195. This petition concerns Timeliness in Decommissioning and proposes changes to the language of the rule which would permit facilities to enter a "standby mode" during which the facility would be monitored and maintained pending future operation. The Wyoming Mining Association supports this petition and believes that it represents a sound and rational alternative for operators with facilities currently not operating pending improved markets. Adoption of this proposed language would allow uranium recovery plants (mills and in-situ leaching facilities) to enter standby mode pending improvements in the uranium market with* adequate assurance that the standby monitoring and maintenance would be adequate and that such activities would be properly funded. The WMA has the following specific comments on the petition:

1. Stability/Future of the Uranium Recovery Industry The Wyoming Mining Association agrees with the Nuclear Energy Institute (NEI) that the nuclear industry has matured and stabilized and operators are more willing to assume holding costs for a facility on standby. In the uranium milling industry for example only six (6) mills remain in the United States out of the thirty (30) or forty (40) in existence approximately two (2) decades ago. Within the last year the uranium market has begun to recover. At least three (3) of these idled mills are making submittals to regulatory agencies relating to resumption of operations at some future date. Companies willing to expend resources on preparation of submittals to resume operations would also be willing to assume holding costs for the facility prior to startup.

4cknowledged b c JAN O7 1997_ Y ara .....- ...--. _

JS, NUCLEAR REGULATORY COMMISSIOflio DOCKETING & SERVICE SECTION OFFICE OF THE SECRETARY OF THE COMMISSION Docum~nt Statistics Postmark Data / 0 Im°! 6 Coples Ree2ivod _ _..:..1_ _ _ __ ,\dd'I Coples Reproduced ....JL.-____ Special Distribution 12 Xiky .@r, L..ie_ 54 rr::

U.S. Nuclear Regulatory Commission page 2 October 28, 1996

2. Unavailability of a Standby Mode in the Present Regulations The present regulations do not provide for a standby mode. The regulations do however, allow the licensee to request a postponement of the initiation of Timeliness in Decommissioning. This postponement may be granted if it "is not detrimental to the public health and safety and is otherwise in the public interest." This is regulation by exception. It would be better to include specific provisions for maintaining a licensed facility in standby mode.

3. Impact on a Licensees Commercial Decisions The current regulations impact heavily on a licensees ability to make commercial decisions that allow it to compete in the market place. The current regulations force (absent a postponement) a licensee to decommission a large capital investment that is currently idle in spite of the fact that it may be economically viable in the future. No other industry is forced to dispose of idled assets in such a manner. Other industries can maintain a plant, building or other facility in standby mode pending changes in economic conditions. The uranium recovery industry should be allowed the same flexibility.

Issues such as the above have been raised previously in comments from industry. These comments which are included by reference are:

1. Comments from Michael H. Gibson of Kennecott Uranium Company dated April 5, 1993.

These comments specifically raised the issue of the need for uranium recovery facilities to "wait out downturns in the market".

2. Comments from the American Mining Congress (AMC) dated April 19, 1993.

These comments specifically stated that "Licensees must be given the option to wait out down-turns in the market by "idling"the facilities and placing them on standby ... "

3. Comments from the U.S. Council for Energy Awareness (USCEA).

These comments proposed that licensees be allowed to close down parts of a facility while awaiting improvements in market conditions.

U.S. Nuclear Regulatory Commission page 3 October 28, 1996

4. Letter to Chairman Selin from the American Mining Congress (AMC) dated September 15, 1993.

This letter references verbal comments made by Michael H. Gibson of Kennecott Uranium Company to Chairman Selin at a meeting in Denver, Colorado in May of 1993. In conclusion, the Wyoming Mining Association strongly supports this petition for rulemaking. - If you have any questions please do not hesitate to contact me. Sincerely, WYOMING MINING ASSOCIATION Marion Loomis Executive Director cc: Katie Sweeney- National Mining Association Jon Indall - Uranium Producers of America Felix Killar - NEI C:Mel8E.OCT

SIEMENS DOCKET NUMBER PETITION RULE PRM 30 - 6 / (61 F(( <-/3/CfV

                                                                                *96 IJCT 29 A9 :37 October 24, 1996 LJM:96:081 Secretary, U.S. Nuclear Regulatory Commission Washington, DC 20555 Attn.: Docketing and Service Branch

Dear Madam Secretary:

Comments on Petition for Rulemaking, Docket No. PRM-30-61 These comments are being submitted by Siemens Power Corporation (SPC) in support of the subject petition for rulemaking submitted on behalf of nuclear materials licensees by the Nuclear Energy Institute. SPC, through its Nuclear Division, operates a low enriched uranium nuclear fuel fabrication plant located at Richland, Washington and is regulated as a major materials licensee under 10 CFR Part 70. The objective of the petition is to establish a standby option for facilities, buildings, and outside storage areas in the timeliness rule [10 CFR 70.38(d)], to allow monitoring and maintenance in accordance with an approved program in lieu of beginning decommissioning after two years of inactivity, i.e., no principal activities conducted under the license. SPC strongly supports the provision of a standby option as sought by the petition. Although the underlying mission of our Richland nuclear fuel fabrication plant has remained essentially unchanged over our approximately twenty-five years of operation, the facilities, processes, and equipment necessary to produce our products continue to evolve. This includes basic product production areas, product packaging and storage facilities, and a wide array of support operations ranging from laundry to waste management. The result is that the missions of specific facilities, buildings, and outdoor areas change over time. These transitions may not occur within the 24 month window imposed by the current timeliness rule, in fact the next mission of an inactive facility, building, or outdoor area may be unknown, and remain unknown, for some period of time. However, our experience has dictated that a follow-on licensed activity will likely emerge. Acceptance of the petition by the NRC will provide SPC with the business and operational flexibility needed to transition its plant facilities in response to market and technology developments without engaging in costly and premature decommissioning campaigns. The standby monitoring and maintenance activities can be accomplished in a manner fully protective of employees, the environment, and the public by means of the safety and environmental programs already conducted as conditions of our NRC license. As the petition establishes, the specifics of the monitoring and maintenance activities will be included in an approved program and financial assurance for decommissioning will continue to be provided under existing decommissioning funding plan requirements. JAN O 7 1997 Siemens Power Corporation Acknowledged by card ....- ............_--r Nuclear Division 2101 Horn Rapids Road Tel (509) 375-8100 Engineering & Manufacturing PO Box 130 Fax (509) 375-8402 Richland, WA 99352-0130

.S. NUCLEAR REGULATORY C0MMISSIO DOCKETING & SERVICE SECTION OFFICE OF THE SECRETARY OF THE COMMISSION Docuncnt Stati~tics Postmark Dal3 LO I::z.s /q 6 Copies Receiv~d _ _-&.,,_ _ _ _ __

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U.S. NRC LJM:96:081 October 24, 1996 Page 2 In summary, SPC believes the petition for rulemaking supports a viable and flexible nuclear fuel fabrication industry and imposes no significant incremental risk to workers, the environment, or the public. We urge NRC's acceptance of the petition. If you have questions, please feel free to contact me on 509-375-8537. L. J. Maas, Manager Regulatory Compliance csk cc: F. M. Killar, Jr., NEI

Sweetwater Uranium Faclllty DOCKET NUMBER 0 Kennecott Uranium Company 42 Miles NW of Rawlins DOc fi ED PETITION RULE PRM 3 0-6 / l:,/ PO Box 1500 Rawlins, Wyoming 82301 1S JR C (6 t F re L/3193) (307) 328-1478 Fax: (307) 324-4925

                                                                           °9l      1:' -   28 P5 :20 October 18, 1996                                                                                                        Kennecott OFFll DOC~

Energy Secretary U.S. Nuclear Regulatory Commission Attn: Docketing and Services Branch Washington, D.C. 20555-0001 Gentlemen: Kennecott Uranium Company is the operator and manager of the Sweetwater Uranium Project located in Sweetwater County, Wyoming and a uranium recovery licensee. Kennecott Uranium company has reviewed the Petition for Rulemaking from the Nuclear Energy Institute (NEI), Docket No. PRM-30-61, published in the Federal Register on August 21, 1996 (Volume 61 , Number 163) page 43193-43195. This petition concerns Timeliness in Decommissioning and proposes changes to the language of the rule which would permit facilities to enter a "standby mode" during which the facility would be monitored and maintained pending future operation. Kennecott Uranium Company supports this petition and believes that it represents a sound and rational alternative for operators with facilities currently not operating pending improved markets. Adoption of this proposed language would allow uranium recovery plants (mills and in-situ leaching facilities) to enter standby mode pending improvements in the uranium market with assurance that the standby monitoring and maintenance would be adequate and that such activities would be properly funded. Kennecott Uranium Company has the following specific comments on the petition:

1. Stability/Future of the Uranium Recovery Industry Kennecott Uranium Company agrees with the Nuclear Energy Institute (NEI) that the nuclear industry has matured and stabilized and operators are more willing to assume holding costs for a facility on standby. In the uranium milling industry for example only six (6) mills remain in the United States out of the thirty (30) or forty (40) in existence approximately two (2) decades ago. Within the last year the uranium market has begun to recover. At least three (3) of these idled mills are making submittals to the Nuclear Regulatory Commission relating to resumption of operations at some future date.

Companies willing to expend resources on preparation of submittals to resume operations would also be willing to assume holding costs for the facility prior to startup.

2. Unavailability of a Standby Mode in the Present Regulations The present regulations do not provide for a standby mode. The regulations do allow the licensee to request a postponement of the initiation of Timeliness in Decommissioning.

This postponement may be granted if it "is not detrimental to the public health and

                                                                                                               "'\liNIUWf Kennecott Uranium Company 1s Manager of the Green Mountain Mmin!ll~EJl.\ll"i, edgedby card ...JAN

__ O 7_ 1997 Kennecou Energy Company provides marketing and other services on behalf of Cordero Mining Company, Antelope Coal Company, Spring Creek Coal Company and Kennecott Uranium Company.

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Secretary U.S. Nuclear Regulatory Commission Page 2. safety and is otherwise in the public interest." This is regulation by exception. It would be better to include specific provisions for maintaining a licensed facility in standby mode.

3. Impact on a Licensee's Commercial Decisions The current regulations impact heavily on a licensee's ability to make commercial decisions that allow it to compete in the market place. The current regulations force (absent a postponement) a licensee to decommission a large capital investment that is currently idle in spite of the fact that it may be economically viable in the future. No other industry is forced to dispose of idled assets in such a manner. Other industries can maintain a plant, building or other facility in standby mode pending changes in economic conditions. The uranium recovery industry should be allowed the same flexibility.

In conclusion, Kennecott Uranium Company strongly supports this petition for rulemaking. If you have any questions please do not hesitate to contact me. Sincerely yours, 4

 ~~~

Oscar Paulson Facility Supervisor

                               /4~::,

B:\18C.OCT cc: Felix Killar - NEI Katie Sweeney - National Mining Association Jon Indall - Uranium Producers of America A Thompson - Shaw, Pittman, Potts and Trowbridge Ken Webber Jim Berson George Worman

DOCKET tUIBEII . -,. PETITION Rll.E PRl"3 6 - 6 I (, I FR t./3 113) DOCKETF.D [75 9 oU!9 ] NUCLEAR REGULATORY COMMISSION

                                                        '96 AUG 16 A9 :JQ 10 CFR Parts 30, 40, and 70 OFFICE OF SEL RETA RY

[Docket No. PRM-30-61] OOC KE flH d ~ERVICE BRANCH Nuclear Energy Institute, Receipt of a Petition for Rulemaking AGENCY: Nuclear Regulatory Commission. ACTION: Petition for rulemaking; Notice of receipt.

SUMMARY

The Nuclear Regulatory Commission (NRC) has received and requests public comment on a petition for rulemaking filed by the Nuclear Energy Institute (NEI) on behalf of nuclear material licensees. The Commission has docketed the petition Docket No. PRM-30-61. The petitioner requests that the NRC amend its regulations governing monitoring and maintenance programs for the decommissioning process at facilities of special nuclear materials licensees. The petitioner's suggested amendments would allow material licensees to continue monitoring and maintaining facilities, separate buildings, or outside storage areas that have not been used for 24 months, rather than requiring licensees to begin the decommissioning process after 24 months of inactivity.

I I /1--1 f 1b DATE: Submit comments by (75 days after publication in the Federal Register). Comments received after this date will be

2 considered if it is practical to do so, but assurance of consideration can be given only to comments received on or before this date. ADDRESSES: Submit comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555. Attention: Docketing and Service Branch. Deliver comments to 11555 Rockville Pike, Rockville, Maryland, between 7:45 am and 4:15 pm on Federal workdays. For a copy of the petition, write: Rules Review Section, Rules Review and Directives Branch, Division of Freedom of Information and Publications Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555. Electronic access is explained at the end of the Supplementary Information section. FOR FURTHER INFORMATION CONTACT: Michael T. Lesar, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555. Telephone: 301-415-7163 or Toll Free: 800-368-5642. SUPPLEMENTARY INFORMATION:

Background

The Nuclear Regulatory Commission (NRC) received a petition for rulemaking dated May 24, 1996, from the Nuclear Energy Institute (NEI). The petition was docketed as PRM-30-61 on

3 May 29, 1996 . The petitioner requests that the NRC amend the regulations in 10 CFR Parts 30, 40, and 70 to establish a more flexible alternative to the current provisions required for decommissioning any facility, separate building, or outside area after it has been inactive for at least 24 months. The petitioner discusses the NRC's Site Decommissioning Plan to address facilities that had not operated for some period of time and had not started the decommissioning process. The study that led to the plan was initiated because the owners of a number of facilities had gone into bankruptcy or could not be identified, and because a number of sites had unique decommissioning or financial issues to be resolved in order to complete decommissioning. The NRC began a second study to determine the appropriateness of establishing regulations to prevent other licensees from falling into one of three categories. Two key antecedents for licensees falling into the categories were identified. First, the regulations did not state a specific time period for decommissioning, either from when operations ceased or from the time decommissioning started to the time it was completed. Second, if decommissioning was delayed for a long period of time, safety practices could become lax, key personnel

4 could leave, management interest would wane, or bankruptcy, corporate takeover, and other unforseen changes could occurr, all of which would complicate or further delay decommissioning. The petitioner states that in January 1990, the NRC directed its staff to establish timeline criteria for decommissioning the sites of materials licensees. The petitioner describes NRC staff began efforts to establish the requirements for timely decommissioning. The work culminated in SECY-92-057, dated February 19, 1992. In June 1992, the NRC issued a staff requirements memorandum approving the proposed rulemaking. The notice for comments was published in the Federal Register on January 13, 1993 (53 FR 4099). The comment period expired on March 29, 1993. The NRC received 17 comment letters, including one from the predecessor organization to NEI. This comment focused on the lack of a standby provision in the rule. The petitioner further states that the proposed rule included four major points: first, to establish a time limit of 24 months of inactivity, after which a licensee must submit notification to the NRC; second, to establish a time limit of 12 months following the notification of ceasing operations to submit the decommissioning plan; third, to provide a provision for requests to delay or postpone the initiation of the

5 decommissioning process; and fourth, to establish a time period for completing decommissioning. Most of the comments the NRC received were focused on the timing of each aspect and the lack of residual contamination criteria. The NRC decided not to adopt the suggestion to extend the 24-month period of inactivity before notification because the commenters did not provide adequate substantiating rationale for selecting an alternative schedule. The Petitioner The petitioner is the Nuclear Energy Institute (NEI), the organization that coordinates unified nuclear industry policy on matters affecting the nuclear energy industry. NEI's members include all utilities licensed to operate commercial nuclear power plants in the United States, nuclear plant designers, major architect/engineering firms, fuel fabrication facilities, materials licensees, and other organizations and individuals involved in the nuclear energy industry. Supporting Statement The petitioner believes that NRC's overall objective was to ensure timely decommissioning of material licensees' facilities following termination of the license or inactivity of the site for a specified period of time. Although the final rule

6 (July 15, 1994; 59 FR 36027) accomplishes this objective, the petitioner believes that it also has the potential to eliminate important components from the nuclear industry infrastructure. These components, facilities, and buildings may be needed in future years to support continuing operation or potential industry expansion. The petitioner states that it may not have been NRC's intent to eliminate components of this infrastructure, but the delay and postponement provision and the absence of an alternative monitoring and maintenance program essentially does just that. The petitioner believes that NRC's position does not reflect the cohesive industry of today; specifically, the market and industry have matured and demand has stabilized within a respectable range. The petitioner states that companies understand today's market and are willing to assume the holding costs to keep facilities in the standby mode. Furthermore, the petitioner states that the ability to establish a standby mode is functionally unavailable under the timeliness rule. NRC dismissed the proposed alternative standby mode extension on the grounds that adequate, substantial rationale for an alternative were not provided and that demonstrating adequate funds to maintain the site was unacceptable because bankruptcy, corporate

7 takeover, or other unforseen changes in the company's financial status could result in abandonment of the site. The petitioner believes that the NRC's staff dismissal of the proposed alternative did not take into consideration related NRC regulations on decommissioning and transfer of ownership. The current series of regulations in Parts 30, 40, and 70 ensures adequate funding is available for decommissioning of a site. Similar regulations for the transfer of ownership provide the NRC with assurances that companies who hold the license have sufficient financial ability to use the radioactive material in a manner that provides benefit to the nation, while providing protection for the health and safety of the public. According to the petitioner, NRC regulations were not intended to give the NRC jurisdiction over the commercial aspects of the licensee's activities. The petitioner believes that a company that has a valid NRC or Agreement State license and operates within the conditions of the license should make the commercial decision on starting and stopping operations, as well as deciding when to place buildings or facilities in the standby mode and how long to maintain them in this mode. The petitioner believes that NRC regulations should not impose restrictions on

8 facilities or sites that have the potential to impact commercial decisions. The petitioner has included an appendix entitled "Supplementary Analyses in Support of the Petition for Rulemaking," which contains analyses of issues that the NRC must consider, including the effect of the proposed action on the environment and small business entities, the paperwork required of those affected by the change, and whether or not a regulatory analysis must be performed or the backfit rule applies to this action. The NRC is soliciting public comment on the petition submitted by NEI that requests the following changes to 10 CFR Parts 30, 40, and 70. The Petitioner's Proposed Amendment The petitioner recommends the following amendments to 10 CFR Parts 30, 40, and 70.

1. The petitioner proposes that §30.36 be amended by redesignating paragraph (e) as (e) (2) and adding a new paragraph (e) (1) to read as follows:

Section 30.36 Expiration and termination of licenses and decommissioning of sites and separate buildings or outdoor areas.

9 ( e) * * * (1) In lieu of decommissioning, the licensee may monitor and maintain a facility, separate building or outside storage area as described in paragraphs (d) (3) or (d) (4) of this section in accordance with an approved program, provided the proposed plan is submitted to the NRC within 24 months of the cessation of principle activities within a facility, separate building or outside storage area. The program includes: (i) Financial assurance for decommissioning; (ii) A description of the monitoring and maintenance plan that is to be implemented, which will assure that any remaining contamination will be contained and that worker and public safety will be assured; and (iii) Financial assurance to support the monitoring and maintenance program for the standby period requested.

2. The petitioner proposes that §40.42 be amended by redesignating paragraph (e) as (e) (2) and adding a new paragraph (e) (1) to read as follows:

Section 40.42 Expiration and termination of licenses and decommissioning of sites and separate buildings or outdoor areas.

10 (el * * * (1) In lieu of decommissioning, the licensee may monitor and maintain a facility, separate building or outside storage area as described in paragraph (d) (3) or (d) (4) of this section in accordance with an approved program, provided the proposed plan is submitted to the NRC within 24 months of the cessation of principle activities within the facility, separate building or outside storage area. The program includes: (i) Financial assurance for decommissioning; (ii) A description of the monitoring and maintenance plan that is to be implemented, which will assure that any remaining contamination will be contained and that worker and public safety will be assured; and (iii) Financial assurance to support the monitoring and maintenance program for the standby period requested.

3. The petitioner proposes that §70.38 be amended by redesignating paragraph (e) as (e) (2) and adding a new paragraph (bl (1) to read as follows:

Section 70.38 Expiration and termination of licenses and decommissioning of sites and separate buildings or outdoor areas.

11 ( e) * * * (1) In lieu of decommissioning, the licensee may monitor and maintain a facility, separate building, or outside storage area as described in paragraph (d) (3) or (d) (4) of this section in accordance with an approved program, provided the proposed plan is submitted to the NRC within 24 months of the cessation of principle activities within a facility, separate building or outside storage area. The program includes: (i) Financial assurance for decommissioning; (ii) A description of the monitoring and maintenance plan that is to be implemented, which will assure that any remaining contamination will be contained and that worker and public safety will be assured; and (iii) Financial assurance to support the monitoring and maintenance program for the standby period requested. Electronic Access Comments may be submitted electronically in either ASCII text or WordPerfect format (version 5.1 or later) by calling the NRC Electronic Bulletin Board (BBS) on FedWorld. The bulletin board may be accessed using a personal computer, a modem, and one

12 of the commonly available communications software packages, or directly via Internet. Background documents on this rulemaking also are available for downloading and viewing on the bulletin board. If using a personal computer and modem, the NRC rulemaking subsystem on FedWorld can be accessed directly by dialing the toll free number 800-303-9672. Communication software parameters should be set as follows: parity to none, data bits to 8, and stop bits to 1 (N,8,1). Using ANSI or VT-100 terminal emulation, the NRC rulemaking subsystem can then be accessed by selecting the "Rules Menu" option from the "NRC Main Menu." Users will find the "FedWorld Online User's Guides" particularly helpful. Many NRC subsystems and data bases also have a "Help/Information Center" option that is tailored to the particular subsystem. The NRC subsystem on FedWorld also can be accessed by a direct-dial telephone number for the main FedWorld BBS, 703-321-3339, or by using Telnet via Internet: fedworld.gov. If using 703-321-3339 to contact FedWorld, the NRC subsystem will be accessed from the main FedWorld menu by selecting the "Regulatory, Government Administration and State Systems," then selecting "Regulatory Information Mall." At that point, a menu will be displayed that has an option "U.S. Nuclear Regulatory

13 Commission" that will take the user to the NRC online main menu. The NRC online area also can be accessed directly by typing "/go nrc" at a FedWorld command line. If NRC is accessed from FedWorld's main menu, the user may return to FedWorld by selecting the "Return to FedWorld" option from the NRC online main menu. However, if NRC is accessed at FedWorld by using NRC's toll-free number, the user will have full access to all NRC systems, but the user will not have access to the main FedWorld system. If FedWorld is contacted using Telnet, the user will see the NRC area and menus, including the Rules Menu. Although the user will be able to download documents and leave messages, he or she will not be able to write comments or upload files (comments). If FedWorld is contacted using FTP, all files can be accessed and downloaded, but uploads are not allowed. Only a list of files will be shown, without descriptions (normal Gopher look). An index file listing all files within a subdirectory, with descriptions, is available. There is a 15-minute time limit for FTP access. Although FedWorld also can be accessed through the World Wide Web, like FTP, that mode only provides access for downloading files and does not display the NRC Rules Menu.

14 For more information on NRC bulletin boards, call Mr. Arthur Davis, Systems Integration and Development Branch, NRC, Washington, DC 20555, telephone 301-415-5780; e-mail AXD3@nrc.gov. lh I'.} Dated at Rockville, Maryland, this/)-day o f ~

• 1996.

For the Nuclear Regulatory Commission. etary of the Commission.

NUCLEAR ENERGY INSTITUTE Felix M. Killar, Jr. DIRECTOR. MATERIAL LICENSEES PROGRAMS DOCKET NUMBER PETITION RULE PIii .~ - (; J (6 I FR L/J 193) May 24, 1996 Mr. John C. Hoyle MA't' 2 9 '9 Secretary U.S. Nuclear Regulatory Commission

• Washington, D.C. 20555-0001 -. '

                                                                                       \, _...,I ATTENTION:                            Chief, Docketing and Service Branch
                                                                                         '-:~//i... . "" 1,.,. __.,.

Dear Mr. Hoyle:

The Nuclear Energy Institute (NEI),* on behalf of the material licensees, hereby submits a Petition for Rulemaking pursuant to 10 CFR 2.800 et seq. NEI's Petition for Rulemaking requests that the U.S. Nuclear Regulatory Commission (NRC) amend 10 CFR 30.36 to add section 10 CFR 30.36(e)(l) and renumber existing section 10 CFR 30.36(e) to 10 CFR 30.36(e)(2), to amend 10 CFR 40.42 to add section 10 CFR 40.42(e)(l) and renumber existing section 10 CFR 40.42(e) to 10 CFR 40.42(e)(2), to add section 10 CFR 70.38(e)(l) and renumber existing section 10 CFR 70.38(e) to 10 CFR 70.38(e)(2). The new sections allow, within a predetermined time period, material licensees to continue monitoring and maintaining facilities, separate buildings, or outside storage areas, which have not been in use for 24 months, rather than being required to begin the decommissioning process after 24 months of inactivity. As outlined in the enclosed petition, the new sections provide for a monitoring and maintenance program, along with assurance of funding to carry out this program for a specified time period, as well as the assurance of adequate funding for decommissioning. The monitoring and maintenance programs will be subject to NRC concurrence and will be designed to prevent radioactive releases or contamination exposure, exceeding 10 CFR 20 limits, to the work force and/or members of the public.

• NEI is the organiwtion responsible for establishing unified nuclear industry policy on matters affecting the nuclear energy industry, including the regulatory aspects of generic operational and technical issues. NEI's members include all utilities licensed to operate commercial nuclear power plants in the United States, nuclear plant design ers , major architect/engineering firms, fuel fabrication facilities, materials licensees, and oth er organizations and individuals involved in the nuclear energy industry .

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Mr. John C. Hoyle May 24, 1996 Page 2 The proposal in this Petition for Rulemaking allows licensees to make informed business decisions. It will benefit both licensees and the NRC because a clear alternative with the necessary requirements will be set forth directly in the regulations. We would be pleased to discuss this petition and to respond to any questions NRC staff may have regarding its content or application. We would appreciate it if the NRC could complete the review as promptly as possible as the full effect of the "Timeliness Rule" occurs on August 15, 1996. Enclosure

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of a ) Proposed Rulemaking ) Regarding Amendments to ) 10 CFR 30.36 ) Docket No. 10 CFR 40.42 and ) 10 CFR 70.38 ) PETITION FOR RULEMAKING This Petition for Rulemaking is submitted pursuant to 10 CFR Section 2.802 by the Nuclear Energy Institute (NEI) on behalf of material licensees. Petitioners request that the U.S. Nuclear Regulatory Commission (NRC), following notice and opportunity for comment, amend certain portions of the regulations contained in 10 CFR Sections 30.36, 40.42, and 70.38 in order to establish a more flexible alternative to the current regulations in these sections governing the required decommissioning of any facility, separate building or outside area that has not been in use or had any principal activities for a period of 24 months and is unsuitable for unrestricted release in accordance with current NRC requirements. STATEMENT OF PETITIONER'S INTEREST NEI is the organization of the nuclear energy industry responsible for coordinating the combined efforts of material licensees, utilities and other nuclear industry organizations in all matters involving generic regulatory policy issues and regulatory aspects of generic operational and technical issues affecting the nuclear industry. NEI's members include utilities, major architect/engineering firms, all of the major nuclear fuel supply vendors and all of the major manufacturers of radionuclides and radiopharmaceuticals. Because NEI's material licensee members are subject to the requirements of 10 CFR Sections 30.32, 40.42 and 70.38, NEI is an "interested person" within the meaning of 10 CFR 2.802.

GROUNDS FOR PROPOSED ACTION For the reasons outlined below, NEI requests that the NRC consider an alternative to the mandatory decommissioning of material facilities after they have been inactive for at least 24 months. This alternative would allow licensees to place facilities, buildings, etc., in a standby mode for more than 24 months, providing that they submit an acceptable monitoring and maintenance plan to the NRC. This alternative would take the place of mandatory decommissioning or requesting a delay of decommissioning. This proposal provides the NRC assurances that workers and members of the public will be protected during the extended standby mode. It would also provide assurance to the NRC that financial requirements for monitoring and maintenance will be available and final decommissioning funding will also be available. The last ten years have brought maturity to the U.S. nuclear industry. Since there have been few new reactors brought on line, it would be expected, therefore, that the fuel cycle facilities, i.e., mines, mills, conversion plants, enrichment facilities, and fabrication facilities would be in a steady-state mode. This is not the case, due in large part to the international market. Mines and mills that were on standby for several years are now beginning to start up. Conversion facilities and enrichment plants have cycled up and down in response to international policy and the influx of low enriched products from countries of the former Soviet Union. The domestic fabrication market has also been very active in response to the international market. Even during this period of relative world peace, commercial facilities that supported the armed forces have been called back into operation or are prepared to respond if called. The standby duration for these facilities is generally unknown. They may be on standby for 12 months, but in most cases it is longer. The by-product material industry has been similarly affected. Isotopes that have been displaced by other isotopes or non-radioactive materials are being put back into production for other uses. New industrial and medical applications continue to be developed. Facilities that have been idle for months or years are being placed back into production to support these demands. Unfortunately, with the "Timeliness in Decommissioning of Material Facilities" rule, which was published in the July 15, 1994, Federal Register (59 FR 36026), a regulatory constraint was imposed on these facilities. This constraint did not previously exist and it does not provide a reasonable alternative. The only alternatives for licensees with facilities, separate buildings, or outside storage areas not in use for 24 months is either decommissioning or request a delay or postponement of decommissioning. Decommissioning as an alternative is not attractive since it essentially takes away any flexibility to respond to market swings. The delay or postponement as set out in the regulations has limited utility. It does not provide any grounds for the request or the basis for the approval of a request. This petition if adopted, would provide an alternative with requirements clearly set forth right in the regulation. 2

There are instances where mills and mines have been on standby more than two years and have then reopened. The Plateau Resources mill, as an example, is reopening after being on standby for 14 years. The recent U.S. Navy contract with Nuclear Fuel Services, Inc. (NFS) means that NFS will be forced to request a delay or postponement for those facilities which will be used in the future to either manufacture or support manufacture of Naval nuclear fuel. The timeliness regulation precludes a facility from being placed in an unlimited standby mode. BACKGROUND In the late 1980's, the NRC began to study how it should address facilities that had not operated for some period of time and had not started the decommissioning process. This study was initiated as a result of a number of facilities where the owners had gone into bankruptcy, could not be identified, or involved sites with unique decommissioning or financial issues which had to be resolved in order to complete decommissioning. A list was made of the facilities, which fell into one of the above three categories, and it became known as the Site Decommissioning Management Plan (SDMP). A second study was undertaken by the NRC for the purpose of determining if establishing regulations to prevent other licensees from falling into one of the three categories was appropriate. The two key antecedents for licensees falling into the categories were identified. The first was the regulations did not state a specific time period for decommissioning, either from when operations ceased, or time to complete decommissioning once decommissioning started. The second was that if decommissioning was delayed for a long period of time, safety practices became lax, key personnel left, management interest waned, bankruptcy was more likely, corporate takeover and other unforeseen changes occurred, which complicated or further delayed decommissioning. In January 1990, the Commissioners directed the staff to establish timeline criteria for decommissioning of material licensees' sites. Efforts were undertaken by the Office of Nuclear Material Safety and Safeguards (NMSS) and the Office of Nuclear Regulatory Research (RES) to establish the requirements for timely decommissioning. The work continued throughout 1990 and 1991 and culminated in SECY-92-057 dated February 19, 1992. In June 1992, the Commissioners issued a Staff Requirements Memorandum (SRM) approving the proposed rulemaking with comments. The Notice of Proposed Rulemaking was published in the Federal Register for comments on January 13, 1993 (53 FR 4099). The comment period ended March 29, 1993. The NRC received 17 comment letters, including one submitted by the U.S. Council for Energy Awareness (USCEA). USCEA is one of the predecessor organizations to NEI. The comments dated March 29, 1993, focused on the lack of a standby provision in the rule. 3

The proposed rule included four major points. First, it was to establish a time limit of 24 months of inactivity after which a licensee must submit notification to the NRC. Second, it was to establish a time limit of 12 months following the notification of ceasing operations to submit the decommissioning plan. Third, it was to provide a provision for requests to delay or postpone the initiation of the decommissioning process. Fourth, it was to establish a time period for completing decommissioning. Most of the comments the NRC received were focused on the timing of each aspect and the lack of residual contamination criteria. In response to the industry proposal to provide the standby alternative to the 24-month inactivity followed by the submittal of a decommissioning plan or request for a delay or postponement, the NRC provided the following:

      "The NRC staff does not propose that the Commission adopt the suggestion to extend the 24 month period of inactivity before notification. The time period proposed by the Commission appears reasonable and licensees may file for exemption if they anticipate a longer period of temporary inactivity. The commenters did not provide adequate substantial rationale for selecting an alternative schedule. They stated that adequate funds to maintain their sites during the period of inactivity should be an acceptable means to permit extension of the inactive period beyond 24 months. The staff proposes to the Commission that this maintenance funding is not acceptable because issues such as bankruptcy, corporate takeover, or other unforeseen changes in the company's financial status, and loss of interest by the parent company may result in a loss of funding for site maintenance or decommissioning and could result in abandonment of the site." (SECY-94-135) 4

STATEMENT IN SUPPORT OF PROPOSED ACTION The history of the timeliness rulemaking indicates that the overall objective of the NRC was to assure timely decommissioning of material licensees' facilities following termination of the license or inactivity of the site for a specified period of time. The final rule as published in the Federal Register on July 15, 1994 (59 FR 36027) accomplishes this objective. In meeting this objective, the final rule also has the potential to eliminate important components from the nuclear industry infrastructure. These components, facilities, buildings, etc., may be called upon in future years to support continuing operation or potential industry expansion. It may not have been NRC's intent to eliminate infrastructure, but the delay/postponement provision and the absence of an alternative monitoring and maintenance program essentially do just that. The NRC's position does not reflect the cohesive industry of today. In the 1970's and early 1980's, there was a major slump in the industry. The grand plans for nuclear were tempered by reality, and the general nuclear market collapsed. A large number of companies who jumped on the nuclear power bandwagon found themselves in financial trouble. These poorly financed or managed licensees are no longer in operation. The market and industry has matured. Demand has stabilized within a respectable range. For individual companies, variations in this range means going from standby mode to full production. Companies understand today's market and are willing to assume the holding costs to keep facilities in the standby mode. The ability to establish a standby mode is functionally unavailable under the timeliness rule. The staff dismissed the proposed alternative standby mode extension on the grounds that adequate, substantial rationale for an alternative were not provided, and that demonstrating adequate funds to maintain the site was unacceptable because bankruptcy, corporate takeover or other unforeseen changes in the company's financial status could result in abandonment of the site. The staffs dismissal did not take into consideration the related NRC regulations on decommissioning and transfer of ownership. The current series of regulations in Parts 30, 40, and 70 assure adequate funding is available for decommissioning of a site. Recent regulations enhance this assurance. Similar regulations for the transfer of ownership provide the NRC with assurances that companies who hold the license have sufficient financial ability to use the radioactive material in a manner which provides benefit to the nation while providing protection for the health and safety of the public. 5

The NRC regulations were not intended to give the NRC jurisdiction over the commercial aspects of the licensee. A company which has a valid NRC/Agreement State License and operates within the conditions of the license, should make the commercial decision on starting and stopping operations along with when to place buildings or facilities in the standby mode and how long to maintain them in the standby mode. NRC regulations should not impose restrictions on facilities or sites which have the potential to impact commercial decisions. The following proposed rule removes these restrictions, at the same time enhancing NRC's ability to assure the public's health and safety from a site or building that is in the standby mode. DISCUSSION OF PROPOSED RULE BY SECTION I. Introduction and Scope The proposed 10 CFR 30.36(e)(l), 10 CFR 40.42(e)(l), and 10 CFR 70.38(e)(l) provide an alternative to licensees that previously did not exist. At the same time they provide more flexibility to the licensee. These changes also enhance the NRC's ability to assure that public health and safety is maintained at sites or facilities that are in an extended standby mode. The proposed rule provides the NRC with three new provisions. First, it provides a program for the ongoing maintenance and radiation protection for the site or building. This program is specific to the site conditions and would be more detailed than the current operating health and safety program. Second, it would provide the NRC with financial data to support the costs of the maintenance and radiation protection program. Third, it would provide the NRC with the time period the facility will be in the standby mode. This would be used in conjunction with the financial data to demonstrate that funding is available for the length of time the building/facility is projected to be in the standby mode. II. General Requirements The current rule would remain essentially unchanged; the goals of the timeliness rule are the same. This provision provides the licensee with the ability to maintain a site or building in a standby mode for a predetermined period of time rather than being forced to decommission. The licensee would have the ability to reactivate the facility, or notify the NRC of the intention to decommission the facility at any time during the predetermined period. At the end of the period, the licensee would either demonstrate the financial ability to continue the standby mode, with the maintenance and radiation protection program for an additional period of time, or submit the decommissioning plan. 6

III. Specific Requirements There are three specific requirements to implement this proposal. These requirements which must be submitted within 24 months of the cessation of principal activities within the facility, building or storage area include: (1) providing the financial assurance for the ultimate decommissioning; (2) providing a description of the monitoring and maintenance program that will be followed; and (3) providing the financial assurance for carrying out the monitoring and maintenance program for the period of time requested. Even though other parts of the regulation provide for the funding of ultimate decommissioning, it is made a specific requirement in the section. This is done for two reasons. First, it provides additional assurance that when a facility is placed in the standby mode, if market conditions deteriorate and decommissioning is to proceed, the funding is available. Second, it assures that decommissioning funding will not be affected by the facility being placed in the standby mode. The NRC will be assured that funding for the standby mode does not negatively impact decommissioning funding. The description of the monitoring and maintenance program is to provide NRC the assurance that the public and worker health and safety are not being impacted by the standby mode of the facility, building, or storage area. This program will be an extension of the operating maintenance and radiation protection programs. The major difference will be the monitoring. As an example, during operation, leaks or defective equipment are identified by the work force. In the standby mode there will only be a skeleton crew; therefore, leak detection, defective equipment, sampling, etc., will need to be incorporated into the monitoring program. Since most, if not all, radioactive material will be removed, the leak-detection equipment monitoring will be for the purpose of containment of residual contamination. A requirement to submit this program to the NRC for concurrence provides the NRC the assurance that residual contamination does not become a health and safety issue. The requirement that the licensee provides the NRC with the financial assurances demonstrating it can carry out the monitoring and maintenance program for the specified period of time, assures the NRC that funding is available to protect worker and public safety during the standby mode. By submitting this financial assurance for the standby mode period, along with the financial assurance for ultimate decommissioning, the licensee demonstrates to the NRC that funding for protection during the standby mode and funding for decommissioning are available and a protracted standby mode would not negatively impact a decommissioning decision later in a plant's life. 7

The final requirement of providing this information within 24 months of the cessation of principal activities affords the NRC opportunity to evaluate the program and stay within the decision period of the current rule. It also places the burden on the licensee to submit a complete and acceptable application, or proceed with decommissioning, or the postponement alternative. TEXT OF PROPOSED RULE Section 30.36(e)(l): In lieu of decommissioning, the licensee may monitor and maintain a facility, separate building or outside storage area as described above in (d)(3) or (d)(4) in accordance with an approved program, provided the proposed plan is submitted to the Commission within 24 months of the cessation of principal activities within the facility, separate building or outside storage area and the program includes: (i) financial assurance for decommissioning; (ii) a description of the monitoring and maintenance plan that is to be implemented, which will assure that any remaining contamination will be contained and that worker and public safety will be assured; and (iii) financial assurance to support the monitoring and maintenance program for the standby period requested. Current § 30.36(e) is renumbered as § 30.36(e)(2) 8

Section 40.42(e)(l): In lieu of decommissioning, the licensee may monitor and maintain a facility, separate building or outside storage area as described above in (d)(3) or (d)(4) in accordance with an approved program, provided the proposed plan is submitted to the Commission within 24 months of the cessation of principal activities within the facility, separate building or outside storage area and the program includes: (i) financial assurance for decommissioning; (ii) a description of the monitoring and maintenance plan that is to be implemented, which will assure that any remaining contamination will be contained and that worker and public safety will be assured; and (iii) financial assurance to support the monitoring and maintenance program for the standby period requested. Current § 40.42(e) is renumbered as § 40.42(e)(2) Section 70.38(e)(l): In lieu of decommissioning, the licensee may monitor and maintain a facility, separate building or outside storage area as described above in (d)(3) or (d)(4) in accordance with an approved program, provided the proposed plan is submitted to the Commission within 24 months of the cessation of principal activities within the facility, separate building or outside storage area and the program includes: (i) financial assurance for decommissioning; (ii) a description of the monitoring and maintenance plan that is to be implemented, which will assure that any remaining contamination will be contained and that worker and public safety will be assured; and (iii) financial assurance to support the monitoring and maintenance program for the standby period requested. Current§ 70.38(e) is renumbered as§ 70.38(e)(2) 9

APPENDIX SUPPLEMENTARY ANALYSES IN SUPPORT OF THE PETITION FOR RULEMAKING INTRODUCTION Pursuant to 10 CFR 2.802, a petition for rulemaking must establish the problem for which the petitioner seeks redress, the proposed solution identified in the rulemaking, and the substantive basis for the proposed solution. In turn, the NRC must evaluate the procedural and substantive merit of the proposed action against the dictates of the Atomic Energy Act and evaluate the ramification(s) of the proposed actions against several statutes in addition to the Atomic Energy Act. Specifically, the other statutes that must be addressed are the National Environmental Policy Act, the Paperwork Reduction Act and the Regulatory Flexibility Act. Also, the NRC must draft a Regulatory Analysis if certain criteria are met and determine whether 10 CFR 50.109, the back.fit rule, is applicable; if so, an additional evaluation must be conducted. Petitioner submits the following information to assist the NRC in its analyses. THE NATIONAL ENVIRONMENTAL POLICY ACT The National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.) requires that federal agencies consider the expected environmental impact of a proposed rule and any reasonable alternatives to the action proposed. The adoption of the proposed rule by the NRC would not constitute a major federal action significantly effecting the quality of the human environment such that the analysis of the environmental impact must be undertaken by the NRC. First, action on the petition for rulemaking is subject to a categorical exclusion under Section 51.22(c)(l). Second, the nature of the proposed rule fits within the category of Section 51.22(c)(2) as it is an amendment to the current regulations, which is corrective in nature and does not substantially modify existing regulation in that the proposed rule is an alternative to the current regulation that achieves the same goals. More importantly, the implementation of the proposed rule, if adopted, would not have any material environmental consequences. The goal of the current regulation would merely be achieved through more effective means. 10

However, the adoption of the proposed rule might be considered to be of a policy nature (see also Section 51.22(c)(2)) that would require the preparation of an environmental assessment. The NRC may wish, therefore, to consider, out of an abundance of caution, the preparation of an environmental assessment in accordance with Section 51.21 to ensure that no claim could be made that the NEPA process was circumvented. We believe that such an analysis will result in a finding of no significant environmental impact pursuant to Section 51.31. EXECUTIVE ORDER 12898 Adoption of the proposed rule by the NRC will have no disparate impact on persons or populations that are the subject of Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations. THE PAPERWORK REDUCTION ACT The objective of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) is to ensure that the Office of Management and Budget has the opportunity to review and approve regulatory actions that create an increased burden due to additional information collection requirements imposed by the federal government. This statute does not apply to the instant rulemaking. REGULATORY FLEXIBILITY ACT Pursuant to the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the NRC must certify that a proposed rule, if promulgated, will not have a significant impact on a substantial number of small entities. With respect to the proposed modifications to the NRC's timeliness regulation, the NRC may make this determination because no impact on small entities is expected. REGULATORY ANALYSIS Under certain circumstances, the NRC is required to perform a regulatory analysis. The purpose of the analysis is to assure that the NRC obtains adequate information regarding the need for and consequences of a proposed regulatory action and that the NRC appropriately considers costs and benefits of alternative regulatory actions. 11

A regulatory analysis must be prepared ifit is determined that the proposed action contemplated by the rule will likely result in any of the following: (1) an annual effect on the economy of $100,000,000 or more in direct or indirect costs; (2) a significant impact on health, safety or the environment; or, (3) a substantial increase in the cost to NRC licensees, permit holders or applicants; to federal, state or local governments; and geographic regions. Also, preparation of the analysis may be required by the Commission or the Executive Director for Operations. Taking the criteria verbatim, the following discussion supports a conclusion that the NRC is not required to perform a regulatory analysis on the proposed modifications to the NRC's timeliness regulations. Based on available information, the total direct cost savings for a typical facility, through implementation of the proposed rule, are estimated to be as much as $130,000 per year, depending on specific conditions and the level of detail contained in the facility's current license. Under the proposed rule, each licensee would determine whether the costs of maintaining a facility in the standby mode are commensurate with the potential benefits received, as opposed to terminating the license and attempting to get a new license for those operations in the future. As a result, it is expected that only those changes that are cost-beneficial to a licensee will be implemented by that licensee. As a result, it is not expected that any modification will be undertaken where costs exceed the benefits to be received. Perhaps the greatest practical benefit will be the ability of licensees to modify their current programs, when and as appropriate, to ensure that their attention and resources are able to be focused on matters of safety-significance. No significant impact on health, safety or the environment will result from the adoption of the proposed rule. In fact, the proposed rule is expected to provide a positive impact on health and safety by ensuring that both licensee and NRC resources will be focused on matters of safety-significance more effectively than under the current rule. As described above, no significant impact on the environment is expected through NRC adoption of the proposed rule or by licensee implementation of its provisions. Similarly, the adoption of the proposed rule will not result in a substantial increase in the cost to NRC licensees, permit holders or applicants; to federal, state or local governments; or to geographic regions. Because the rule would be promulgated as an alternative to the current rule, no cost to licensees or any other entity will be incurred through the promulgation of the rule. With respect to its implementation, licensees are not expected to implement any provision that is not cost-beneficial. Those licensees that choose to modify their programs, in accordance with the proposed rule, will not establish any burden on federal, state or local governments, other than for the ongoing NRC oversight. No geographical region implications will result form the adoption of this rule. 12

THE BACKFIT RULE Under Section 50.109, a backfit is defined as "the modification of or addition to systems, structures, components, or design of a facility ... or the procedures or organization required to design, construct or operate a facility; any of which may result from a new or amended provision in the Commission rules or the imposition of a regulatory staff position interpreting the Commission rules that is either new or different from a previously applicable staff position." In the context of the proposed rule, a critical aspect of Section 50.109 is that it only applies to a new obligation imposed by the NRC; it is the mandatory nature of the regulatory change that controls the applicability of Section 50.109. Because the proposed rule would be promulgated as an alternative to the existing regulation, it offers licensees a new option not previously sanctioned by the NRC, but it does not impose additional obligations. Under the proposed rule, the licensee would be free to choose either to continue to comply with the existing regulation or to voluntarily choose to comply with the NRC's new regulation to the appropriate extent. Because the new regulation represents an opportunity for licensees to improve the effective use of their resources, voluntary implementation is appropriate and likely to achieve significant benefits. 13}}