SECY-19-0121, VR-SECY-19-0121: Denial of Petition for Rulemaking on Power Reactors in Extended Shutdown (PRM-50-114; NRC-2019-0204)

VR-SECY-19-0121: Denial of Petition for Rulemaking on Power Reactors in Extended Shutdown (PRM-50-114; NRC-2019-0204)

ML20064F014
Person / Time
Issue date:	02/11/2020
From:	Jeff Baran, Annie Caputo, Kristine Svinicki, Annette Vietti-Cook, David Wright NRC/OCM, NRC/SECY
To:
References
SECY-19-0121 VR-SECY-19-0121
Download: ML20064F014 (132)

Text

UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555-0001 February 11, 2020 COMMISSION VOTING RECORD DECISION ITEM: SECY-19-0121 TITLE: DENIAL OF PETITION FOR RULEMAKING ON POWER REACTORS IN EXTENDED SHUTDOWN (PRM-50-114; NRC-2016-0204)

The Commission acted on the subject paper as recorded in the Staff Requirements Memorandum (SRM) of February 11 , 2020.

This Record contains a summary of voting on this matter together with the individual vote sheets, views and comments of the Commission.

~~vµU-O-V Annette L. Vietti-Cook Secretary of the Commission

Enclosures:

1. Voting Summary

2. Commissioner Vote Sheets cc: Chairman Svinicki Commissioner Baran Commissioner Caputo Commissioner Wright OGC EDO PDR

VOTING

SUMMARY

- SECY-19-0121 RECORDED VOTES NOT APPROVED DISAPPROVED ABSTAIN PARTICIPATING COMMENTS DATE Chrm. Svinicki X X 01/23/20 Cmr. Baran X X 01/29/20 Cmr. Caputo X X 01/29/20 Cmr. Wright X X 01/29/20

POLICY ISSUE NOTATION VOTE RESPONSE SHEET TO: Annette L. Vietti-Cook, Secretary FROM : CHAIRMAN SVINICKI

SUBJECT:

SECY-19-0121 : Denial of Petition for Rulemaking on Power Reactors in Extended Shutdown (PRM 114;NRC-2016-0204)

Approved XX Disapproved __ Abstain _ _ Not Participating COMMENTS: Below XX Attached XX None I approve the staff's recommended denial of the petition. I approve the draft Federal Register notice (Enclosure 1) and draft letter to the petitioner (Enclosure 2), as edited in the attached versions.

Entered on "STARS"

[7590-01-P]

KLS edits NUCLEAR REGULATORY COMMISSION 10 CFR Part 50

[Docket No. PRM-50-114; NRC-2016-0204)

Power Reactors in Extended Shutdowns AGENCY: Nuclear Regulatory Commission.

ACTION: Petition for rulemaking; denial.

SUMMARY

The U.S. Nuclear Regulatory Commission (NRC) is denying a petition for rulemaking dated September 1, 2016, submitted by Mr. David Lochbaum on behalf of the Union of Concerned Scientists and two co-petitioners (the petitioners). The petition was docketed by the NRC on September 14, 2016, and was assigned Docket No. PRM-50-114. The petitioners requested that the NRC amend its regulations to "promulgate regulations applicable to nuclear power reactors with operating licenses issued by the NRC but in an extended outage." The NRC is denying the petition because the NRC already has regulatory processes in place to address the issues identified in the petition.

DATES: The docket for the petition for rulemaking, PRM-50-114, is closed on [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER].

ADDRESSES: Please refer to Docket ID NRC-2016-0204, when contacting the NRC about the availability of infonnation regarding this petition. You may obtain publicly-available infonnation related to this petition by any of the following methods:

• Federal Rulemaklng Web Site: Go to https://www.regulations.gov and search for Docket ID NRC-2016-0204. Address questions about NRC dockets to Carol Gallagher; telephone: 301-415-3463; e-mail: Carol.Gallagher@nrc.gov. For technical questions, contact the individual listed in the FOR FURTHER INFORMATION CONTACT section of this document.

• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select Begin Web-based ADAMS Search . For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by e-mail to pdr.resource@nrc.gov. For the convenience of the reader, instructions about obtaining materials referenced in this document are provided in the "Availability of Documents" section.

• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room 01-F21 , One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.

FOR FURTHER INFORMATION CONTACT: Dennis Andrukat, Office of Nuclear Material Safety and Safeguards, telephone: 301-415-3561; e-mail:

Dennis.Andrukat@nrc.gov; U.S. Nuclear Regulatory Commission, Washington DC 20555-0001 .

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SUPPLEMENTARY INFORMATION:

TABLE OF CONTENTS:

I. The Petition II. Public Comments on the Petition Ill. Reasons for Denial IV. Availability of Documents V. Conclusion I. The Petition Section 2.802 of title 10 of the Code of Federal Regulations (10 CFR), "Petition for rulemaking--requirements for filing,* provides an opportunity for any iAteresteEI person to petition the Commission to issue, amend, or rescind any regulation. On September 1, 2016, Mr. David Lochbaum, on behalf of the Union of Concerned Scientists and two co-petitioners (petitioners), submitted a petition for rulemaking (PRM) to the NRC. The NRC docketed this petition and assigned it Docket No. PRM-50-114.

The petitioners requested that the NRC amend 10 CFR part 50, "Domestic Licensing of Production and Utilization Facilities," to "promulgate regulations applicaple to nuclear power reactors with operating licenses issued by the NRC but in an extended outage."

The petitioners described a scenario in which an operating commercial nuclear power plant (facility) could voluntarily be in an extended shutdown with no immediate plans to decommission. The petitioners stated that there are no regulations to prevent a licensee from changing its decision to cease operations by retracting its certification to do so, and that the current regulations were developed for operating reactor facilities and for reactor facilities in decommissioning, not for facilities "in limbo that will at some unspecified later date return to the operating reactor world or join the decommissioning community." The petitioners asserted that the current regulations are not intended, as 3

written, for an operating facility in an "extended shutdown .: '~ The petitioners also stated that a licensee can place 24ml _facility in an extended shutdown without public participation or the NRC's review and approval, er Jl1,11llis JlaFlisiJlatieA. The petitioners speculated that in the current economic climate, licensees may choose to place a facility in an extended shutdown until the marketplace becomes more favorable or the decision to proceed with decommissioning is made. The petitioners cited the Browns Ferry Nuclear Plant. Unit 1, as an example of a facility in an extended shutdown. In 1985, Tennessee Valley Authority (TVA) voluntarily shut down Unit 1 and did not restart it until 2007. Ultimately, the petitioners asserted that the current regulatory framework does not manage the risk of a facility in an extended shutdown that a licensee may someday seek to restart.

The NRC identified four main issues in the petition, as follows:

1) Define "extended shutdown" for power reactors.

2) Establish requirements during an extended shutdown period, Including the petitioners' proposed "Reactor Extended Shutdown Activities Report" (RESAR).

3) Establish requirements to exit and restart from an extended shutdown.

4) Conduct a decommissioning funding review(s) during an extended shutdown and establish requirements to prevent the retraction of any letter of permanent cessation of operations certification.

II. Public Comments on the Petition The NRC published a notice of docketing and request for comment in the Federal Register on December 9, 2016. The NRC also sought public comment on six specific questions. The public comment period closed on February 22, 2017. The NRC received 1 The petition describes an *extended shutdown' as either an operating reactor that has been shut down for 2 years or more and Is not actively pursuing restart under a fonnal NRC process or a when a licensee has voluntarily notified the NRC of Its Intent to place the facillty in an *extended shutdown* condition.

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two public comment submissions during the 75-day public comment period; both submissions, which were from industry representatives, were in favor of denying the petition and provided a basis for that position. The two comment submissions, from the Nuclear Energy Institute (NEI) and Entergy Nuclear Operations, Inc. (Entergy), raised five comments in total. Only NEI addressed the specific questions that were included in the Federal Register notice that requested public comments. The ADAMS Accession Nos. for the comment submissions can be found in the "Availability of Documents" section of this document.

Public Comments:

The NRC has considered the public comments received on the petition for rulemaking. The NRC response follows a short summary of each comment submission.

Comment Submission 1:

NEI recommended that the NRC deny the petition because the petition has not demonstrated that the existing regulations require rulemaking based on the criteria in I§-_2.802( c )( 1)(iii i The c.<?n::imenter stated tt,at PRM-50-114 should be deni_ed because: -----i Commented [Al]: Change to a non-breaking space.

(Comment 1) "the petition incorrectly asserts that the Commission's existing regulations are inadequate as applied to operating reactors that have entered an extended shutdown," (Comment 2) "the petition provides no basis for requesting that the NRC establish new requirements that must be satisfied for a reactor to restart after an extended shutdown," and (Comment 3) "the petition provides no basis for suggesting that the NRC should explicitly prohibit withdrawal of the certification of the permanent cessation of operations submitted pursuant to§ 50.82(a)( 1)(i)." The commenter noted that a facility in extended shutdown must continue to comply with its operating license and NRC regulations applicable to operating nuclear power plants. This fast-contrasts 5

with the petitioners' assertions that the Commission's existing regulations are inadequate as applied to operating reactors that have entered iflte.-an extended shutdown. The commenter noted that a licensee ~would still meet all applicable safety and security requirements even if it defers a generic communication action during an extended shutdown scenario. This is because generic communications do not impose new or changed regulatory requirements on licensees.

The commenter further noted that the petition does not provide a basis to change the regulations to require licensees to submit preliminary decommissioning cost estimates every 5 years during an extended shutdown. Once a licensee permanently ceases operations, then the licensee would be required to submit site-specific cost estimates as re~t,JireEl under § 50.82, "Termination of license." The commenter noted that PRM-50-114 acknowledg e§.El that the current regulations already require 10 CFR part 50 power reactor licensees to report decommissioning funding status every 2 years.

The commenter continued that

... many NRC regulations applicable to operating nuclear power plants continue to apply even after a nuclear power reactor has permanently ceased operation and defueled. This includes several regulations that seem to be of specific concern to the petitioners (e.g., emergency planning and physical security).

The commenter asserted that the petitioners provide no basis for requesting that the NRC establish new requirements that must be satisfied for a reactor to restart after an extended shutdown.

In response to the petitioners' requested new reg ulations for reactors that are in an extended shutdown and not actively pursuing restart to be evaluated under a formal process such as Inspection Manual Chapter (I MC) 0350, "Oversight of Reactor Facilities in a Sh utdown Condition Due to Significant Performance and/or Operational Concerns,"

the commenter noted that existing NRC procedures in IMC 0375, "Implementation of the Reactor Oversight Process at Reactor Facilities in an Extended Shutdown Condition for 6

Reasons Other Than Perfonnance," would achieve the petitioners' objective. As noted by the commenter, IMC 0375 is the NRC's iAs13estiaA guidance for implementation of the reactor oversight process for plants in an extended shutdown condition for reasons not related to perfonnance. The commenter points out that IMC 0375 ensures that the NRC "communicates unified and consistent oversight in a clear and predictable manner to the licensee, the public, and other stakeholders" and also ensures the documentation of the required regulatory and licensee actions taken; the resolved technical issues leading to approval for restart, if required; and the eventual return of the plant to the routine reactor oversight process. The commenter asserted that IMC 0375 will provide assurance that the plant will be operated in a manner that provides adequate protection of public health and safety following restart. The commenter stated that "the NRC oversight requested in the petition already exists" under the reactor oversight process. The commenter further stated that the resulting regulations sought in this petition would not result in significant improvements to reactor safety or security and would not improve regulatory efficiency.

NRC Response: The NRC generally agrees with the comments that were relayed in Comment Submission 1. Specifically, the NRC agrees that the Commission's existing regulations and guidance documents adequately address facilities that enter aR;<

potential extended shutdown period§..

Comment Submission 2:

Entergy recommended that the NRC deny the petition. The commenter endorsed (Comment 4) the comments provided in NEl's letter. In addition, the commenter stated that (Comment 5) making a§ 50.82(a)(1)(i) certification irrevocable is directly contrary to the assumptions and conditions of a recent settlement agreement entered into by Entergy, the State of New York (among other related New York governmental entities), and Riverkeeper, Inc .* regarding the continued operation of 7

Indian Point Units 2 and 3. The commenter noted that making a § 50.82(a)(1 )(i) certification irrevocable would nullify key terms of this important agreement.

NRC Response: With respect to Entergy's adeptieA endorsement of the NEI comments as reflected in Comment Submission 1, the NRC's response is provided in response to Comment Submission 1. With respect to Entergy's Comment 5, the issue raised is outside the scope of the PRM.

Specific Questions:

The NRC has considered the responses received to the specific questions. Only NEI provided responses to the six specific questions on which the NRC sought comment. A summary of the responses provided in NEl's submission follows.

Question 1: The petition outlines a scenario where a reactor is in an extended shutdown condition due to economic or other reasons and would at some unspecified later date return to operation. The petition uses the Browns Ferry Nuclear Plant as an example, where the Tennessee Valley Authority voluntarily shut down one unit from 1985 to 2007. Are there any facilities or licensees who may be likely to use the petitioners' extended shutdown scenario in the future? Please provide technical, scientific, or other data or information demonstrating the basis for your position.

Comment: The commenter responded that it is not aware of a commercial power reactor likely to use the extended shutdown scenario. The commenter clarified that a licensee is not prohibited from entering into an extended shutdown voluntarily and references the letter from David A. Kraft of Nuclear Energy Information Service dated June 16, 2016.

NRC's Response: The NRC agrees with the comment and notes the NRC's August 4, 2016 response to the David A. Kraft letter states that the NRC regulations do not prohibit 8

a licensee from voluntarily placing its facilities in an extended shutdown, while continuing to meet all safety and security requirements as outlined in the facility's operating license, without terminating the operating license.

Question 2: The petitioners contend that the NRC's existing regulations were promulgated for operating reactors, and that specific regulations are needed to address non-operating reactors in an " extended shutdown." Assuming the extended shutdown scenario is credible, in what specific ways are the existing regulations identified in the PRM [petition for rnlernakingj insufficient to address the scenario described by the petitioners? Please provide technical, scientific, or other data or information demonstrating the basis for your position.

Comment: The commenter responded that the regulations are sufficient to address the extended shutdown scenario and therefore no changes to the NRC's regulations are necessary to ensure adequate protection of public health and safety or security.

NRC's Response: The NRC agrees with the comment.

Question 3: Assuming that the existing regulations identified in the PRM are insufficient to address the extended shutdown scenario, what specific changes to those regulations are needed to facilitate the requested rulemaking? Please provide technical, scientific, or other data or information demonstrating the basis for your position.

Comment: The commenter responded that the regulations are sufficient to address the extended shutdown scenario, and therefore no changes to the NRC's regulations are necessary to ensure adequate protection of public health and safety or security.

NRC's Response: The NRC agrees with the comment.

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Question 4: The petition describes a plant in an "extended shutdown," and proposes two criteria to enter into this non-operating state (submission of§ 50.82(a)(1 )(i) and

§ 50.4(b)(8) notifications; and a shutdown period of 2 years). Should the term "extended shutdown" be defined in § 50.2, "Definitions," and should the regulations specify the timeframe for this scenario? Please provide technical, scientific, or other data or information demonstrating the basis for your position.

Comment: The commenter responded that "extended shutdown" does not require a definition in the federal regulations because the regulations are sufficient to address the extended shutdown scenario.

NRC's Response: The NRC agrees with the comment.

Question 5: Given the NRC's long-standing, well-understood Reactor Oversight Program, what potential changes would need to be considered to ensure adequate oversight of a reactor during an extended shutdown? Please provide technical, scientific, or other data or information demonstrating the basis for your position.

Comment: The commenter responded that the regulations are sufficient to address the extended shutdown scenario, and therefore no changes to the NRC's regulations are necessary to ensure adequate protection of public health and safety or security.

NRC's Response: The NRC agrees with the comment.

Question 6: What additional reporting to the NRC should be req uired for a reactor in an extended shutdown, and with what level of detail and frequency (e.g., the potential changes to the submission of the decommissioning trust fund reports)? Please provide technical, scientific, or other data or information demonstrating the basis for your position.

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Comment: The commenter responded that the regulations are sufficient to address the extended shutdown scenario, and therefore no changes to the NRC's regulations are necessary to ensure adequate protection of public health and safety or security. The commenter does not agree that additional reporting requirements are warranted because the petitioners have not "demonstrated the need for any changes to the reporting requirements applicable to a reactor," in an extended shutdown. The commenter adds that both a facility that is actively operating and a facility that is in an extended shutdown would be restricted to using only 3 percent of the decommissioning trust funds for pre-planning activities, consistent with the regulations in § 50.82.

NRC's Response: The NRC agrees with the comment.

Ill. Reasons for Denial The NRC is denying the petition because the petitioners did not present any significant new information or arguments that would support the requested changes for extended shutdown conditions. Furthermore, the NRC has determined that the issues raised by the petitioners are adequately addressed by existing NRC regulations, procedures, and guidance, and no amendments to the NRC's regulations are necessary.

A discussion of the existing regulatory framework follows.

Issue No. 1: Define "extended shutdown" for power reactors The NRC is denying Issue No. 1 because there is no need to define "extended shutdown" in the regulations. The holder of an operating license is required to maintain the facility and all of its security and operational programs in accorda nce with the conditions of its operating license. This remains true whether the facility is operating or shut down for any period4-time, including extended shutdowns. As discussed further 11

under Issue Nos. 2, 3, and 4, the licensee must maintain programs in effect to ensure the continued safety and security of the facility regardless of the mode of operation.

Therefore, the issues raised by the petitioners associated with what could be defined as an extended shutdown are currently and adequately covered by the existing regulations and NRC processes.

Issue No. 2: Establish requirements during an extended shutdown period, including the petitioners' proposed "Reactor Extended Shutdown Activities Report" (RESAR)

The NRC is denying Issue No. 2 because there is no need to require the licensee to submit a RESAR prior to entering an extended shutdown condition. This proposed report, as raised by the petitioners, would be similar to the post-shutdown decommissioning activities report tRe-requiregmeRts-m_hy § 50.82(a)(4)(i) for tl=le post SRlltaown aecornrnissioning activities report and would describe how certain activities are handled during an extended shutdown. The petitioners included items that should be included in the proposed report. Those items are listed below followed by the staffs evaluation of each item:

Operator License Aging Management Technical Specifications In-service Inspections (and In-service Testing)

Quality Assurance Irradiated Fuel Protection Fitness for Duty .

Operator Ucense 12

An operator's license is not automatically terminated based solely on an extended plant shutdown. IA assereaAse witl'lUnder § 55.55, "Expiration ." an operator's license expires after.-6 yea rs after the date of issuance, upon termination of employment, or upon determination by the facility licensee that the license is no 1o*nger needed. An operator's license can be renewed if the requirements of§ 55.57. "Renewal of licenses." are met.

Whether the facility is operating or is in extended shutdown, licensed operators and senior operators, as defined in§ 55.4, "Definitions," are required to successfully complete requalification requirements established by§ 55.59. "Requalification." to maintain their licenses. Further, licensed operators and senior operators are required to meet proficiency requiremen.ts established by§ 55.53(e) to maintain an active status.

Active status under§ 55.53(e) is maintained by performing th e functions of an operator or a senior operator, as defined in the facility's technical specifications, for a specified number of shifts per calendar quarter. For an operator or senior operator who does not meet the§ 55.53(e) requirements resulting in an in-active status on his or her license, the requirements of§ 55.53(f) apply to ensure proficiency before an operator can legally perform licensed duties. To maintain or restore active status on an operator's license, the facility would need to remain in a mode of operation that requires operators to actively perform the functions of an operator or senior operator, as defined by § 55.4.

However, if the facility is in a mode of operation that does not allow for licensed duties to be performed, this may result in a licensed operator(s) becoming in-active. The licensee may find it acceptable to have a ~educed number of licensed operators during an extended shutdown. Before restarting, however (as states later 1meerdiscussed in Section Ill. "Reasons for Denial." Issue No. 3. "Establish requirements to exit and restart from extended shutdown ." of this document), the licensee would ee reei~ iree need to have the required number of licensed operators in place j3efunder its licensing basis and the existing 10 CFR part 55 requirements.

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Aging Management A licensee with a facility in an extended shutdown must still perform the activities specified in its NRC-reviewed aging management programs, if its current licensing basis includes such programs. Any adjustments to aging management programs are considered changes to the facility's licensing basis and are controlled through current regulations under § 50.59, "Changes, tests, and experiments."

The scope of aging management activities does not change during an extended shutdown. Current regulations in 10 CFR part 54 establish the scope of aging management programs that are only for passive components, based on whether they perform a prescribed intended function "without moving parts or without a change in configuration or properties." The determination of whether a component is classified as either passive or active is not based on frequency of either operation or surveillance testing. The assurance of proper function for active components during an extended shutdown would not fall within established aging management activities. Active components are included in the surveillance requirements that are part of the technical specifications in the license, as well as inservice testing programs required by regulation.

Technical Specifications Under§ 50.36, Technical specifications," each A facility's teGRAisal spesifisatieAs are a part of its operating license under 10 CFR part 50 for a power reactor must include technical specifications. These technical specifications include limiting conditions for operation , as described in § 50.36(a)(2), that represent the lowest functional capability or performance levels of equipment required for safe operation of the facility. These technical specifications also include surveillance requirements, as described in § 50.36(a)(3), that are requirements relating to test calibration or inspection 14

to assure that the necessary quality of systems and components is maintained and that the limiting conditions for operation will be met.A RORGOmJlliaRce witll tecllRical SJjOGificatiORS is a RORGORIJjliaRGO witll a facility's OJlOFaliRg liGORSO FO(llJiFORIORIS aREI SIJbject to ORK>FGORIORI actioR.

The usage rules contained in technical specifications are structured in such a manner as to provide reasonable assurance of continued adequate protection of public health and safety regardless of the amount of time a facility has been shut down. The requirements for performing and meeting the surveillance requirements in technical specifications are independent of the amount of time a facility has been shut down.

Rather, requirements for performing surveillances and meeting surveillance requirements are dependent on the faGility-m ode the facility is in, as defined in the technical specifications, or Q!l_other specified co nditions in the applicability of a limiting condition for operation.

Before a licensee changes the mode a facility is ineRteriRg a Rew moele,~ for example from a shutdown mode to Hot Standby or from Hot Standby to

~ . any req1a1ireel structures, systems, and components necessary for safe operation of the facility in the new mode must be operabl e, and the applicable surveillances must have been met as ~eguired byifl the facility's technical specifications. No additional "lay-up" program or testing/inspection is required.

The usage rules of technical specifications are independent of the amount of time a facility has been in a shutdown condition and a noncompliance with the usage rules is a noncompliance with the operating license requirements subject to enforcement action.

Therefore, the NRC does not agree that a regulation is needed to require a licensee to explain whether testing and inspections per the technical specifications will be continued during a shutdown period.

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The technical specifications set out different requirements for different modes of operation. The NRC agrees that fewer requirements within the technical specifications are applicable when a reactor Is In cold shutdown, refueling or defueled. However, the technical specifications still provide reasonable assurance of adequate protection of public health and safety. The reason that fewer requirements within the technical specifications apply in cold shutdown, refueling, or defueled conditions is that there are fewer credible scenarios that could impact public health and safety when plants are in any mode where the reactor is shut down or defueled. Nonetheless, the licensee must evaluate the impact of degradation of required structures, systems, and components on the operability of those structures, systems, and components. If a licensee determines that a required system Is Inoperable, then the licensee must com ply with the required actions in the technical specifications. Furthermore, the design features of the technical specifications apply at all times, regardless of mode or time since shutdown. The design features, for example, typically contain requirements for fuel storage that, if altered or not met, wgould have a significant impact on safety.

lnservice Inspection [and lnservice Testing]

In aGGOHlanse with Under § 50.55a(g),Section XI of the American Society of Mechanical Engineers (ASME) Boiler and Pressure Vessel Code provides the requirements for inservice inspection of nuclear power plants.Section XI requires examinations to be scheduled in 10-year inspection intervals.Section XI has provisions that allow a licensee ins13estion intervals to ee-shortenee or lengthenee inspection intervals to conform to a facility's outage schedule.Section XI, IWA-2430(d) provides allowances for extended outages. It states. in part, that:

.. .for plants that are out of service continuously for 6 months or more, the inspection interval during which the outage occurred may be extended for 16

a period equivalent to the outage and the original pattern of intervals extended accordingly for successive intervals.

IA a6eerElaA6e witl:iUnder § 50.55a(f), the ASME Operation and Maintenance of Nuclear Power Plants (OM Code) provides requirements for inservice testing of pumps and valves in nuclear power facilities. The OM Code requires testing to be scheduled periodically within the 10-year inservice testing program intervals. Licensees may extend +!he 10-year inservice testing program intervals may ee ellteAEleEI for plants with extended outages, as discussed above for inservice inspection. Under the OM Code, licensees ofFer plants that are continuously out-of-service, per tl:ie OM CeEle, are not required to follow the test schedule for pumps and valves AeeEI Aet Ile felleweEI. and do not need to submit-Ne relief requests, which would otherwise be necessary are req1,1ireEI. ,

The OM Code requires that, W~ithin the 3 months before lR&-§...plant is placed in operation, per tl:ie OM Ceee, the pumps must be tested, and the valves must be exercised.

Additionally, Section 06.02 of IMC 0375 directs inspectors to verify that the { Formatted: Indent: First line: o.s*

licensee has considered the latest vendor bulletins and other important information related to safety-related equipment, consistent with licensee procedures.

Quality Assurance There is no &p86ifiG-relaxation of aRY-*-the requirements of appendix B, "Quality Assurance Criteria for Nuclear Power Plants and Fuel Reprocessing Plants,* to 10 CFR part 50 (appendix B) for an operating facil ity that is in an extended outage.

Appendix B establishes quality assurance requirements for the design, manufacture, construction, and operation of certain structures, systems, and components. The pertinent requirements of this appendix apply to all licensee activities affecting the safety-related functions of these structures, systems, and components, regardless of 17

whether the facility is producing power or in a shutdown condition. Such activities include designing, purchasing, fabricating, handling, shipping, storing, cleaning, erecting, installing, inspecting, testing, operating, maintaining, repairing, refueling, and modifying these structures, systems, and components. Criterion II, "Quality Assurance Program,"

of appendix B, requires that the quality assurance program, be documented by written policies, procedures, or instructions and be carried out throughout the life of the facility.

~ pendix B requires compliance with the applicable portions of the regulations for covered activities regardless of whether or how long the facility has been in a shutdown period. Licensed operators and other licensee staff would still be required to be trained to perform activities affecting quality; to follow written procedures or instructions (where applicable); and to document, evaluate, and resolve issues through the implementation of the non-conformance and corrective action programs. In addition, GQriterion XVIII , "Audits ," of appendix B, requires licensee staff to continue to evaluate programs and processes through periodic auditing throughout the life of the facility and is applicable to facilities regardless of whether or how long a facility has been in a.

shutdown condition.

Irradiated Fue/2 The petitioners requested that the NRC require licensees to develop and submit a RESAR that includes a discussion of how the facility will ensure, El1a1riAg aA eideAElell slrnklewA periell, that any irradiated fuel will be protected and not be damaged during an extended shutdown period. In addition, the petitioners requested that the RESAR describe how the public and facility personnel will be protected, should irradiated fuel 2 As part of its review of the petition, the NRC reviewed other existing regulatory requirements. While not specifica lly mentioned by the petnioners, a discussion of emergency planning requirements and security design basis threats is included in this notice, as both topics relate to protecting the public and plant personnel, should irradiated fuel become damaged.

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become damaged. The NRC determined that the existing regulations, guidance, and processes already discussed in this notice would prevent and mitigate such damage from a design and safety standpoint. The NRC also reviewed other existing regulatory requirements not specifically mentioned by the petitioners. Specifically, the NRC considered emergency planning requirements and security requirements (the design basis threat) in making this conclusion.

Irradiated Fuel: Emergency Planning Emergency planning regulations and required licensee emergency plans already exist to protect workers and the public from damaged irradiated fuel ~er§ 5Q.54, "GeRaitioRs of liseRses," to inclu d]nge when the facility is in extended shutdown.

Specifically,§ 50.54(qX2) requires that the licensee follow and maintain the effectiveness of an emergency plan that meets the requirements in appendix E to part 50 and, for a nuclear power reactor facility, the planning standards of § 50.47(b). !fl asseraaRse witl:l Under § 50.47(bX14), a licensee must conduct periodic exercises to evaluate major portions of emergency response capabilities, while periodic drills are conducted to develop and maintain key skills. Any deficiencies identified as a result of exercises or drills must be corrected.

Irradiated Fuel: Design Basis Threat Existing regulations in 10 CFR part 73, "Physical Protection of Plants and Materials," require security protection when irradiated fuel is onsite and stored inside the protected area, regardless of the reactor's operational mode, or conditions, including an extended shutdown condition.

UnderPl-JFSl-JaRt to § 73 .1(13)( 1)(i)73.55, licensees who are authorized to operate a-nuclear power reactor~ under § 5Q.57, as well as l:lolaers of a seFRl3iRea liseAse l-lAder 19

10 CFR part 50 or 52 (after the Commission has made the finding under§ 52.103(9))

m1a1st Gemply with the req1a1iremeAts of§ 73.aa. These req1a1iremeAts iAsl1a1ele must establish and maintain a security plan and the associated protective strategy with defined design basis threats, as described in §§ 73.1 and 73.2, to protect against acts of radiological sabotag e aAel the assesiateel preteslive strategy. The security plan includes a physical security plan, a training and qualification plan, a safeguards oontingency plan, and a cyber security plan. The specific design basis threat is safeguards information, which is protected under§ 73.21 and is withheld from public access pursuant to the requirements of§ 9.17.

Along with the security plan, § 73.55(k)(8) requires the licensee to establish and implement a protective strategy when irradiated fuel is onsite and stored in the protected area, regardless of the reactor's operational modes, or conditions.

Fitness for Duty Existing regulations in 10 CFR part 26, "Fitness for Duty Programs,* require that all persons who are granted unescorted access to nuclear power reactor protected areas by the licensees be subject to a fitness-for-duty program . UnderP1a1rs1a1aAt to § 26.3(a),

licensees who are authorized to operate a nuclear power reactor facility 1a1Aeler § 50.57, as well as holelers of a soml3iAeel liseAse under 10 CFR part 50 or part 52 (after the Commission has made the finding under§ 52.103(9)) must oomply with the requirements of 10 CFR part 26, except for subpart K, "FFD Program for Construction."

The fitness-for-duty program performance objectives required under § 26.23 provide reasonable assurance of an individual's ability to safely and oompetently perform his or her duty oommensurate with maintaining public health and safety. These requirements apply regardless of the reactor's operational modes, or conditions, and include drug and alcohol testing, behavioral observation, and determinations of fitness.

20

Therefore, staff has determined that Issue No. 2, to require a licensee to develop and submit a RESAR, whether prior to or during an extended shutdown, is not necessary because the issues raised by the petitioners are currently and adequately covered by the existing regulations.

Issue No. 3: Establish requirements to exit and restart from extended shutdown The NRC is denying Issue No. 3 because there is no need to amend the regulations to establish criteria for exiting an extended shutdown. The staff determined that existing reactor oversight process guidance provides for appropriate NRC oversight of a plant in an extended shutdown condition. Oversight of reactor facilities in extended shutdown for reasons not related to performance is governed by IMC 0375. One of the purposes of IMC 0375 is to provide assurance that the facility will be operated in a manner that provides adequate protection of public health and safety following restart.

Section 06.02 of IMC 0375 discusses the inspection plan and indicates that a focus on operational readiness of the licensee for reactor restart may be necessary. Aspects that may be considered as potential areas for additional NRC Inspection include equipment upgrades and maintenance, procedure updates, facilities maintenance, and the status of the corrective action program. In addition, a facility cannot restart without active licensed operators per § 55.53 and as described previously under Issue No. 2.

In addition, bBefore a licensee changes the mode a facility is in. for example from a shutdown mode to Hot Standby or from Hot Standby to Startup, any structures.

systems. and components necessary for safe operation of the facility in the new mode must be operable and the applicable surveillances must have been met as required by the facility's technical specifications.before entering a AigAer mode (e.9., restarting and insreasing power) tAe lisensee m1cJst ens1cJre operability of tAe req1cJired eq1cJipment and pass tAe req1cJired s1cJr>1eillanses for tile neJ<t AigAer mode prior to entry.

21

David Kraft of the Nuclear Energy Information Service raised many of the same issues in a letter to the agency dated June 16, 2016. By letter dated August 4, 2016, John Giessner from the Division of Nuclear Materials Safety in NRC Region Ill responded to Mr. Kraft. In this response letter, referenced by the petitioners as "the Giessner letter," the NRC staff answered questions about the requirements for power reactor decommissioning and extended shutdown . As F868!JRizeEI discussed in the NRC's respeRse letter of August 4, 2016, the NRC regulations do not prohibit a licensee from voluntarily entering the extended shutdown configuration described in the petition and re~rs le IMC 0375;-WmGl:I provides for NRC oversight of a facility exiting from extended shutdown. If a licensee were to places a facility in extended shutdown and later decides to restart, the NRC t:ias EleteFFRiReEI lttat ltte ageRGy has sufficient regulations, processes, and procedures in place to ensure that the restart is conducted in a safe manner.

The example cited by the petitioners was the extended shutdown of Browns Ferry Nuclear Plant, Unit 1, which was shut down from March 1985 to June 2007, after operating for 10 years . During the tweRty twe22- year shutdown, the NRC continued to provide oversight ¥ia--with multiple resident inspectors assigned to the Browns Ferry Nuclear Plants. Further, NRC staff from regional and headquarters offices routinely visited the Browns Ferry Nuclear Plant for oversight of the operating Unit 2 and 3 reactors. As part of the reactor oversight process, the NRC developed an inspection procedure to monitor the restart effort and to ensure that the plant was able to restart and operate in a safe manner. This procedure 8¥8Rbially besameformed the basis for the current IMC 0375. The NRC was able te useg existing regulatory tools (e.g.,

inspectors, inspection procedures, enforcement of the operating license) during the startup of Browns Ferry Nuclear Plant, Unit 1, slaf::typ-in 2007. As e¥iEleR68EI shown by the safe startup of Browns Ferry Nuclear Plant, Unit 1, the NRC maiRtaiAs has the 22

regulatory tools necessary to effesti'lely ensure that the public health and safety and common defense and security continues to be protected in the context of restart of a power reactor following an extended shutdown.

The NRG staff KlYAd additieRalOther examples of power reactor facilities experiencing extended shutdowns relevant to the petition includ~  : Crystal River Nuclear Generating Plant, Unit 3, which was shut down for an extended period of time before permanently seasiR!J cessation of operations; Kewaunee Power Station, which had permanently shut down and defueled but later considered restarting and relicensing (it-ultimately the licensee chose desided not to seek authorization for restart); James A.

FitzPatrick Nuclear Power Plant, Davis-Besse Nuclear Power Station, Unit 1, and Perry Nuclear Power Plant, Unit 1, for which the licensees had made a decision to permanently cease operations that was later reversed prior to the cessation of operations. The NRC staff's review of these additional examples found that the existing regulatory tools were effective and sufficient in addressing these different scenarios and ensured that the public health and safety and common defense and security continued to be protected .

Therefore, the potential safety and security issues associated with exit and restart from extended shutdown are currently and adequately covered by the existing regulations and NRC processes.

Issue No. 4: Conduct a decommissioning funding review(s) during an extended shutdown and establish requirements to prevent the retraction of any letter of permanent cessation of operations certification The NRC is denying Issue No. 4 because there is no need to prohibit withdrawal of a certification of permanent cessation of operations or to require additional i:e-assessmen§iA!J of decommissioning funding during an extended shutdown.

23

Certifications under§ 50. 82, "Termination of license" The regulations in § 50.82 do not prohibit a power reactor licensee from voluntarily placing its facilities in an extended shutdown without terminating the operating license. The regulations do require !!_licensees with an operating license for a power reactor in an extended shutdown to continue to meet all safety and security requirements as outlined in the facility's operating license.

The regulations in§ 50.82(a)(1) specify two actions that the licensee must take to permanently cease operations of a nuclear power facility. First, when the licensee decides to permanently cease operations, the licensee must ~submit a certification of this decision to the NRC in writing within 30 days, pef!.!nder

§ 50.82(aX1 )(i). IA asoorElaAse with Under § 50.4(b)(8), this certification must contain the date on which the power generation operations have ceased or will cease. As a result. licensees typically submit an initial certification of the intended permanent cessation of operations providing a planned date and a certification of actual cessation of operations providing the actual date. Second, under§ 50.82(a)(1Xii), the licensee must submit to the NRC a certification of permanent removal of fuel from the reactor vessel. IA asserElaAse withUnder § 50.82(a)(2), after tl:le liseAsee s1a1emits aAElonce the NRC dockets eetR-the certifications submitted under§ 50.82(aX1 ). the Ucensee is no longer authorized to operate the reactor or place or retain fuel in!Q the reactor vessel.

The ~submittal and docketing of a certification under§ 50.82(a)(1 )(i) of a determination to permanently cease operations alone is not sufficient to result in i:iermaAeAt sessatieA et ei:ieratieAsremoval of a licensee's authority to operate the reactor. No existing regulation would prevent the-a power reactor licensee from changing its decision to cease operations by retracting its certification under

§ so.s2(a)(1 Xi).

24

Tl=ie re!J1,1latiens ea net spesify a time limit fer tl=ie permanent reme*,al ef fuel er tl=ie ssl=iee1,1le fer s1,1emittin!J tl=ie serrespenein!J sertifisatien 1,1neer § 5Q.82(a)(1 )(ii) ta tl=ie

~JRG. Aeeitienally , after tl=ie NRG eeskets ti=le sertifisatiens req1,1iree ey § aQ.82(a)(1 ), ne existin!J re!J1,1latiens we1,1le explisitly prel=iieit tl=ie NRG tram rea1,1tl=ierizin!J eperatien; l=iewever, tl=ie lisensee we1,1le !=lave ta eemenstrate tl=iat it meets all tl=ie req1,1irements in 1Q GF'R part aQ ans req1,1est approval tram tl=ie NRG ta a1,1tl=ierize eperatien ans. Tl=ie NRG we1,1le tl=ien eelerffiine wl=ietl=ier tl=ie lisensee !=las met all req1,1irements .

While the NRC cannot prevent the licensee from electing to cease operation and transition to decommissioning, the NRC can stop decommissioning activities in certain situations. The NRC's regulation at§ 50.82(a)(6) states that the licensee must not perform any decommissioning activity that: (1) forecloses release of the site for possible unrestricted use, (2) results In any significant environmental impact not previously reviewed, or (3) results in there no longer being reasonable assurance that adequate funds will be available for decommissioning. If any decommissioning activity could not meet these conditions, the licensee is prohibited from undertaking the activity until it submits, and the NRC approves, a license amendment request that describes the proposed activity and the potential impact associated with that activity.

The petitioners provided no basis for requesting the NRC to explisitly prohibit withdrawal of 5!ti=le certification of !Re-permanent cessation of operations submitted underp1,1rs1,1ant ta § 50.82(a)(1 )(i). There is no funeamental change In the status authority to operate granted by a ~ facility's operating license associated solely with the filing of the§ 50.82(aX1 XI) certification. F'1,1rtl=ier, 1Ihere is also no change in the regulatory treatment of a commercial nuclear power reactor based solely on the submittal of the certification of permanent cessation of operations required by

§ 50.82(a)(1 )(i). Thus, withdrawal of this certification, in and of itself, regardless of 25

whether the licensee intends to enter iAte-an extended shutdown or continue operating the facility, does not affect the status of the facility with respect to the NRC's requirements . Similar regulations are found Yf!Eief-in § 52.110 for combined licenses. In addition, in its letter dated August 4, 2016, the NRC staff responded to similar questions from David Kraft of the Nuclear Energy Information Service regarding the certifications and license termination requirements under § 50.82.

Therefore, prohibiting ~ licensee from withdrawing a certification of permanent cessation of operations that had been submitted underiA asser-daAse with

§-js0.82(a)(~)Q) w~uld not addre~s a new ~fety or security issue that is not curre!ltlY { Commented [A2]: Use a non-breaking space.

and adequately covered by the existing regulations.

Decommissioning Funding The petitioners asserted that a faci lity in an extended shutdown may eventually resume operation or enter decommissioning. The petitioners requested that the amended regulations clearly address whether decommissioning funding may be used for activities during a facility's extended shutdown and;-#-&G;- include the criteria and cond itions governing their use ef desemmissieAiAg NAGiAg st:leulG Ile iAGIYGeG iA the amended regulatieAs.

The regulations YRGer-in § 50.82(a)(8)(ii) Go Rot allewlimit the use of decommissioning trust funds by licensees prior to the submittal of the certifications required under§ 50.82(a)(1) of permanent cessation of operations and permanent removal of fuel from the reactor vessel. te lae used for aAy aGtivities (exsept desemmissieAiAg plaAAiAg) wl:lile tt:le liseAsee t:las aA eperatiAg liseAse iAGIYGiAg These limitations allow the use of only a specified portion of the funds for decommissioning planning and would apply during an extended shutdown as well as during operation. In addition, the licensee in extended shutdown is not relieved of any existing 26

decommissioning trust fund regulations that are applicable to any facility with an operating license.

The petitioners also requested that the amended regulations require licensees to submit a preliminary decommissioning cost estimate to the NRC at 5-year intervals throughout the period of extended shutdown. The petilieAeFS alse and inquired whether the decommissioning funding amounts required by§ 50.75(c) should be re-assessed during an extended shutdown.

The rRegulations i.o.lffiGef §§ 50.75(f)(1) and (f)(2) require licensees to report at least once every 2 years on the status of its decommissioning funding and related factors. In addition to these requirements for biennial reports,§ 50.75(f)(3) requires that each power reactor licensee shall, at or about 5 years prior to the projected peFFRaAeAt sessatieA end of operations, 3 submit a preliminary decommissioning cost estimate, WfliGh--.that includes an up-to-date assessment of the major factors that could affect the cost to decommission. +Re-An extended shutdown would haves no effect on the license expiration date, and all applicable decommissioning funding regulations remain in effect, Including§ 50.75.

Therefore, prohibiting withdrawal of a certification of permanent cessation of operations under§ 50.82(a)(1)(i) or te-requiri!:J.ge additional re-assessmentiR§ of decommissioning funding during an extended shutdown would not address a new safety or security issue that is not currently and adequately covered by the existing regulations.

IV. Availability of Documents The documents identified in the following table are available to interested

• The "f>eFmaReRt sessaliElRend of operations" in this context raters to when a licensee is no longer authorized to operate the reactor or place or retain fuel inJQ the reactor vessel. unde[J)Bf § 50.82(aX2).

27

persons through one or more of the methods, as indicated.

ADAMS ACCESSION NO. /

DOCUMENT FEDERAL REGISTER CITATION Request for Petition for Rulemaking (PRM-50-114), dated ML16258A486 September 1, 2016.

Federal Register notice, "Power Reactors in Extended 81 FR 89011 Shutdowns," dated December 9, 2016.

Comment Submission 1: Rodney McCullum of Nuclear Energy ML17055B792 Institute (NEI), dated February 22, 2017.

Comment Submission 2: Paul Bessette of Morgan, Lewis & ML170556953 Bockius, LLP (on behalf of Entergy Nuclear Operations, Inc.),

dated February 23, 2017.

IMC 0350, "Oversight of Reactor Facilities in a Shutdown Condition ML17116A273 Due to Significant Performance and/or Operational Concerns,"

dated March 1, 2018.

IMC 0375, "Implementation of the Reactor Oversight Process at ML15247A274 Reactor Facilities in an Extended Shutdown Condition for Reasons Other Than Performance," dated November 13, 2015.

NUReG/~R Qa21 , "QesommissioAiA@ N1islear Power PlaAts," ML1421 QA472 aatea ,0.1ig1ist 2Q14.

NIJReG 17QQ, Re*JisioA 1, "StaAaara ReYiew PlaA fer e*ial1iatiA@ MLQ3127Q391 N1islear Power Reastor LiseAse TermiAatioA PlaAs," aatea Af)ril

~

Reg1ilatory G1iiae (RG) 1.184 , Re*iisioA 1, "QesommissioAiAg of ML13144A84Q N1islear Power Reastors ," aatea Gsteeer 2Q13.

28

RG 1.179, ReYisiaA 1, "SlaAdaFd i;:aFmat aAd GaAleAI af biseAse Mb110490419

+eFmiAatiaA PlaAs fGF N1,1sleaF PaweF ReastaFs," dated JllAe 2011.

Letter from Mr. David A. Kraft of Nuclear Energy Information ML16175A449 Service, dated June 16, 2016.

NRC Letter to Mr. David A. Kraft of Nuclear Energy Information ML16218A266 Service, dated August 4, 2016.

FiFSleAeF!JY Sal1,1tiaAs GaF~. betteF, "WitllElFawal af GeFtifisatiaA af Mb19207,",097 PeFmaAeAI GessatiaA af PaweF G~eFatiaAs fGF Qa~*is Besse N1,1sleaF PaweF StatiaA . UAil Na. 1, aAEl PeFFy ~J1,1sleaF PawaF PlaAI, UAil Na. 1," dates J1,1ly 2e, 2019.

blFaft Fe§lllalaFy iss1,1e s1,1mmary, "Qis~asitiaA af IAfGFmatiaA 81 FR 30571 Related la Ille +ime PeFiad Illa! Safety Related SIFllGlllFes, Systems, aF Gam~aAeAls aFe IAstalled," dated May 17, 2010.

The NRC may post materials related to this document, including public comments, on the Federal Rulemaking Web site at http://www.regulations.gov under Docket ID NRC-2016-0204. The Federal Rulemaking Web site allows you to receive alerts when changes or additions occur in a docket folder. To subscribe: 1) navigate to the docket folder (NRC-2016-0204); 2) click the "Sign up for E-mail Alerts" link; and 3) enter your e-mail address and select how frequently you would like to receive e-mails (daily, weekly, or monthly).

V. Conclusion For the reasons cited in this document, the NRC is denying PRM-50-114. The NRC has concluded that the issues raised by the petitioners are adequately addressed 29

by existing NRC regulations, procedures, and guidance, and no amendments to the NRC's regulations are necessary.

Dated at Rockville, Maryland, this day of , 2020.W.

For the Nudear Regulatory Commission.

Annette L. Vietti-Cook, Secretary of the Commission.

30

UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555-0001 KLS edits Edwin Lyman (on behalf of David A. Lochbaum)

Union of Concerned Scientists 1825 K Street, NW, Suite 800 Washington, DC 20006-1232

Dear MDr. Lyman:

I am responding to David Lochbaum's petition for rulemaking {PRM) dated September 1, 2016, submitted on behalf of the Union of Concerned Scientists and two co-petitioners, Greenpeace and National Resources Defense *council {Agencywide Documents Access and Management System Accession No. ML16258A486). The U.S. Nuclear Regulatory Commission {NRC) docketed the petition as PRM-50-114. The petition requested the NRC amend its regulations in Title 1O of the Code of Federal Regulations ( 10 CFR) Part 50, "Domestic Licensing of Production and Utilization Facilities, " to "promulgate regulations applicable to nuclear power reactors with operating licenses issued by the NRC but in an extended outage."

The NRC published a notice of docketing for PRM-50-114 in the Federal Register on December 9, 2016 (81 FR 89011 ). The staff received two public comment submissions during the 75-day public comment period; both submissions were in favor of denying the petition and provided a basis for that conclusion.

The NRC is denying PRM-50-114 because it has determined that the issues raised by the petitioners are adequately addressed by existing NRC regulations, procedures, and guidance, and therefore, no amendments to the NRC's regulations are necessary. The enclosed notice, which will be published in the Federal Register, explains the reasons for the denial. Upon publication of the enclosed notice, the NRC will close the docket for PRM-50-114.

You may direct any questions about this matter to Dennis Andrukat by calling 301-415-3561 or sending an e-mail to Dennis.Andrukat@nrc.gov.

Sincerely, Annette L. Vietti-Cook Secretary of the Commission

Enclosure:

Federal Register notice

POLICY ISSUE NOTATION VOTE RESPONSE SHEET TO: Annette L. Vietti-Cook, Secretary FROM : Commissioner Baran

SUBJECT:

SECY-19-0121 : Denial of Petition for Rulemaking on Power Reactors in Extended Shutdown (PRM 114;NRC-2016-0204)

Approved X Disapproved

- - Abstain - - Not Participating COMMENTS: Below X Attached X None I appreciate the thoughtful petition for rulemaking submitted on behalf of the Union of Concerned Scientists, Greenpeace, and Natural Resources Defense Council focused on the requirements applicable to power reactors in extended shutdown. Because the conditions and technical specifications of a power reactor licensee's operating license remain in effect during an extended shutdown, along with a range of NRC safety and security requirements, I do not believe it is necessary to establish a set of regulatory requirements specifically tailored to plants in extended shutdown. Therefore, I approve the NRC staff's recommendation to deny the petition for rulemaking. I also approve publication of the Federal Register notice announcing this decision and the accompanying letter, subject to the attached edits.

However, I agree with the petitioners that NRC's current inspection guidance does not explicitly direct inspectors to confirm that licensees have addressed any deferred actions on applicable NRC bulletins, generic letters, and licensing correspondence prior to plant startup from an extended shutdown. The NRC staff should update Inspection Manual Chapter 0375 to ensure that NRC inspectors verify that licensees have addressed any related commitments prior to restart.

Entered in "STARS" Yes X sjGATURE No t/1.; /2-P DATE

[7590-01-P]

NUCLEAR REGULATORY COMMISSION 10 CFR Part 50

[Docket No. PRM-50-114; NRC-2016-0204]

Power Reactors in Extended Shutdowns JMB edits AGENCY: Nuclear Regulatory Commission.

ACTION: Petition for rulemaking; denial.

SUMMARY

The U.S. Nuclear Regulatory Commission (NRC) is denying a petition for rulemaking dated September 1, 2016, submitted by Mr. David Lochbaum on behalf of the Union of Concerned Scientists and two co-petitioners (the petitioners). The petition was docketed by the NRC on September 14, 2016, and was assigned Docket No. PRM-50-114. The petitioners requested that the NRC amend its regulations to "promulgate regulations applicable to nuclear power reactors with operating licenses issued by the NRC but in an extended outage." The NRC is denying the petition because the NRC already has regulatory processes in place to address the Issues identified in the petition.

DATES: The docket for the petition for rulemaking, PRM-50-114, is closed on [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER).

ADDRESSES: Please refer to Docket ID NRC-2016-0204, when contacting the NRC about the availability of information regarding this petition. You may obtain publicly-available information related to this petition by any of the following methods:

• Federal Rulemaking Web Site: Go to https://www.regulations.gov and search for Docket ID NRC-2016-0204. Address questions about NRC dockets to Carol Gallagher; telephone: 301-415-3463; e-mail: Carol.Gallaqher@nrc.gov. For technical questions, contact the individual listed in the FOR FURTHER INFORMATION CONTACT section of this document.

• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select Begin Web-based ADAMS Search. For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by e-mail to pdr.resource@nrc.gov. For the convenience of the reader, instructions about obtaining materials referenced in this document are provided in the "Availability of Documents" section.

• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room 01-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.

FOR FURTHER INFORMATION CONTACT: Dennis Andrukat, Office of Nuclear Material Safety and Safeguards, telephone: 301-415-3561 ; e-mail:

Dennis.Andrukat@nrc.gov; U.S. Nuclear Regulatory Commission, Washington DC 20555-0001 .

2

SUPPLEMENTARY INFORMATION:

TABLE OF CONTENTS :

I. The Petition II. Public Comments on the Petition Ill. Reasons for Denial IV. Availability of Documents V. Conclusion I. The Petition Section 2.802 of title 10 of the Code of Federal Regulations (1 OCFR), "Petition for rulemaking-requirements for filing ," provides an opportunity for any iRteresteEI person to petition the Commission to issue, amend, or rescind any regulation . On September 1, 2016, Mr. David Lochbaum, on behalf of the Union of Concerned Scientists, and co-petitioners Greenpeace and Natural Resources Defense Councik:IRe iwe se ~etitieRers (petitioners}, subm itted a petition for rulemaking (PRM) to the NRC.

The NRC docketed this petition and assigned it Docket No. PRM-50-114. The petitioners requested that the NRC amend 10 CFR part 50, "Domestic Licensing of Production and Utilization Facilities," to "promulgate regulations applicable to nuclear power reactors with operating licenses issued by the NRC but in an extended outage."

The petitioners described a scenario in which an operating commercial nuclear power plant~ could voluntarily be in an extended shutdown with no immediate plans to decommission. The petitioners stated that there are no regulations to prevent a licensee from changing its decision to cease operations by retracting its certification to do so, and that the current regulations were developed for operating reactor facilities and for reactor facilities in decommissioning, not for facilities "in limbo that will at some unspecified later date return to the operating reactor world or join the decommissioning 3

community." The petitioners asserted that the current regulations are not intended , as written, for an operating facility in an "extended shutdown.,. The petitioners also stated that a licensee can place the facility in an extended shutdown without the NRC's review and approval, or public participation. The petitioners contendedspesbtlatee that in the current economic climate, licensees may choose to place a facility in an extended shutdown until the marketplace becomes more favorable or the decision to proceed with decommissioning is made. The petitioners cited the Browns Ferry Nuclear Plant Unit 1 as an example of a facility in an extended shutdown. In 1985, Tennessee Valley Authority (TVA) voluntarily shut down Unit 1 and did not restart it until 2007. Ultimately, the petitioners asserted that the current regulatory framework does not manage the risk of a facility in an extended shutdown that a licensee may someday seek to restart.

The NRC identified four main issues in the petition , as follows:

1) Define "extended shutdown" for power reactors.

2) Establish requirements during an extended shutdown period, including the petitioners' proposed "Reactor Extended Shutdown Activities Report" (RESAR).

3) Establish requirements to exit and restart from an extended shutdown.

4) Conduct a decommissioning funding review(&) during an extended shutdown and establish requirements to prevent the retraction of any letter of permanent cessation of operations certification.

II. Public Comments on the Petition The NRC published a notice of docketing and request for comment in the Federal Register on December 9, 2016. The NRC also sought public comment on six specific 1 The petition describes an "extended shutdown' as either an operating reactor that has been shut down for 2 years or more and is not actively pursuing restart under a fonnal NRC process or a when a licensee has voluntarily notified the NRC of its intent to place the facility in an ' extended shutdown" condition.

4

questions. The public comment period closed on February 22, 2017. The NRC received two public comment submissions during the 75-day public comment period ; both submissions, which were from industry representatives, were in favor of denying the petition and provided a basis for that position . The two comment submissions, from the Nuclear Energy Institute (NEI) and Entergy Nuclear Operations. Inc. (Entergy). raised five comments in total. Only NEI addressed the specific questions that were included in the Federal Register notice that requested public comments. The ADAMS Accession Nos. for the comment submissions can be found in the "Availability of Documents*

section of this document.

Public Comments:

The NRC has considered the public comments received on the petition for rulemaking. The NRC response follows a short summary of each comment submission.

Comment Submission 1:

NEI recommended that the NRC deny the petition because the petition has not demonstrated that the existing regulations require rulemaking based on the criteria in § 2.802(c)(1 )(iii). The commenter stated that PRM-50-114 should be denied because:

(Comment 1) "the petition incorrectly asserts that the Commission's existing regulations are inadequate as applied to operating reactors that have entered an extended shutdown ." (Comment 2) "the petition provides no basis for requesting that the NRC establish new requirements that must be satisfied for a reactor to restart after an extended shutdown ," and (Comment 3) "the petition provides no basis for suggesting that the NRC should explicitly prohibit withdrawal of the certification of the permanent cessation of operations subm itted pursuant to§ 50.82(a)(1)(i)." The commenter noted 5

that a facility in extended shutdown must continue to comply with its operating license and NRC regulations applicable to operating nuclear power plants. This fast oontrasl6 with the petilieAeFS' asseFtieAs that the CeFRFRissien's e11istiAg reg11latieAs are inaE19'111ate as applied te eperaliAg reasters that lla¥e entered iAte aA e11teAEled sll11teewA. The commen ter noted that a licensee may still meet all applicable safety and security requ irements even if it defers a generic communication action during an extended shutdown scenario. This is because generic communications do not impose new or changed regulatory requirements on licensees.

The commenter further noted that the petition does not provide a basis to change the regulations to require licensees to subm it preliminary decommissioning cost estimates every 5 years during an extended shutdown. Once a licensee permanently ceases operations , then the licensee would be required to submit site-specific cost estimates as required under§ 50.82, "Termination of license." The commenter acknowledged that the current regulations already require 10 CFR part 50 power reactor licensees to report decommissioning funding status every 2 years. The commenter statedooAtiA11eEl that

... many NRC regulations applicable to operating nuclear power plants continue to apply even after a nuclear power reactor has permanently ceased operation and defueled. This includes several regulations that seem to be of specific concern to the petitioners (e.g., emergency planning and physical security).

The commenter asserted that the petitioners provide no basis for requesting that the NRC establish new requirements that must be satisfied for a reactor to restart after an extended shutdown.

In response to the petitioners' requested new regulations for reactors that are in an extended shutdown and not actively pursuing restart to be evaluated under a formal process such as Inspection Manual Chapter (IMC) 0350, "Oversight of Reactor Facilities 6

in a Shutdown Condition Due to Significant Performance and/or Operational Concerns,"

the commenter noted that existing NRC procedures in IMC 0375, "Implementation of the Reactor Oversight Process at Reactor Facilities in an Extended Shutdown Condition for Reasons Other Than Performance," would achieve the petitioners' objective. .As AeteEI by the GeFRFReAter, IMC 0375 This Inspection Manual Chapter is the NRC's inspection guidance for implementation of the reactor oversight process for plants in an extended shutdown condition for reasons not related to performance. The commenter

~ that IMC 0375 ensures that the NRC "communicates unified and consistent oversight in a clear and predictable manner to the licensee, the public, and other stakeholders" and also addresses6R&Yf'e6 the documentation of the required regulatory and licensee actions taken; the resolved technical issues leading to approval for restart, if required; and the eventual return of the plant to the routine reactor oversight process. The commenter asserted that IMC 0375 will provide assurance that the plant will be operated in a manner that provides adequate protection of public health and safety following restart. The commenter stated that "the NRC oversight requested in the petition already exists" under the reactor oversight process. The commenter further stated that the resulting regulations sought in this petition would not result in significant im provements to reactor safety or security and would not improve regulatory efficiency.

NRC Response: The NRC generally agrees with the comments that were relayed in Comment Submission 1. Specifically, the NRC agrees that the Commission's existing regulations aAEI g1:1iElaAse Eles1:1meAts adequately address facilities that enter anflY peteAtial extended shutdown period.

Comment Submission 2:

Entergy recommended that the NRC deny the petition. The commenter 7

endorsed (Comment 4) the comments provided in NEl's letter. In addition, the commenter stated that (Comment 5) making a§ 50.82(a)(1)(i) certification irrevocable is directly contrary to the assumptions and conditions of a recent settlement agreement entered into by Entergy, the State of New York (among other related New York governmental entities), and Riverkeeper, Inc. regarding the continued operation of Indian Point Units 2 and 3. The commenter statedAGteEI that making a§ 50.82(a)(1)(i) certification irrevocable would nullify key terms of this important agreement.

NRC Response: With respect to Entergy's aaeJ31ieR endorsement of the NEI comments as reflected in Comment Submission 1, the NRC's response is provided in response to Comment Submission 1. With respect to Entergy's Comment 5, the issue raised is outside the scope of the PRM.

Specific Questions:

The NRC has considered the responses received to the specific questions. Only NEI provided responses to the six specific questions on which the NRC sought comment. A summary of the responses provided in NEl's submission follows.

Question 1: The petition outlines a scenario where a reactor is in an extended shutdown condition due to economic or other reasons and would at some unspecified later date return to operation. The petition uses the Browns Ferry Nuclear Plant as an example, where the Tennessee Valley Authority voluntarily shut down one unit from 1985 to 2007. Are there any facilities or licensees who may be likely to use the petitioners' extended shutdown scenario in the future? Please provide technical, scientific, or other data or information demonstrating the basis for your position.

Comment: The commenter responded that it is not aware of a commercial power 8

reactor likely to use the extended shutdown scenario. The commenter statedGlarifiee that a licensee is not prohibited from entering into an extended shutdown voluntarily and references the NRC's response to a letter from David A. Kraft of Nuclear Energy Information Service dated June 16, 2016.

NRC's Response: The NRC agrees with the comment and notes the NRC's August 4, 2016 response to the David A. Kraft letter states that the-NRC regulations do not prohibit a licensee from voluntarily placing its facilities in an extended shutdown, while continuing to meet all safety and security requirements as outlined in the facility's operating license, without terminating the operating license.

Question 2: The petitioners contend that the NRC's existing regulations were promulgated for operating reactors , and that specific regu lations are needed to address non-operating reactors in an "extended shutdown." Assuming the extended shutdown scenario is credible, in what specific ways are the existing regulations identified in the PRM [petitioA for rulemakiA9] insufficient to address the scenario described by the petitioners? Please provide technical, scientific, or other data or information demonstrating the basis for your position.

Comment: The commenter responded that the regulations are sufficient to address the extended shutdown scenario and therefore no changes to the NRC's regulations are necessary to ensure adequate protection of public health and safety or security.

NRC's Response: The NRC agrees with the comment.

Question 3: Assum ing that the existing regu lations identified in the PRM are insufficient to address the extended shutdown scenario, what specific changes to those regu lations 9

are needed to facilitate the requested rulemaking? Please provide technical, scientific, or other data or information demonstrating the basis for your position.

Comment: The commenter responded that the regulations are sufficient to address the extended shutdown scenario, and therefore no changes to the NRC's regulations are necessary to ensure adequate protection of public health and safety or security.

NRC's Response: The NRC agrees with the comment.

Question 4: The petition describes a plant in an "extended shutdown," and proposes two criteria to enter into this non-operating state (submission of§ 50.82(a)(1)(i) and

§ 50.4(bX8) notifications; and a shutdown period of 2 years). Should the term "extended shutdown" be defined in§ 50.2, "Definitions," and should the regulations specify the timeframe for this scenario? Please provide technical, scientific, or other data or information demonstrating the basis for your position.

Comment: The commenter responded that "extended shutdown* does not require a definition in the federal regulations because the regulations are sufficient to address the extended shutdown scenario.

NRC's Response: The NRC agrees with the comment.

Question 5: Given the NRC's long-standing, well-understood Reactor Oversight Program, what potential changes would need to be considered to ensure adequate oversight of a reactor during an extended shutdown? Please provide technical, scientific, or other data or information demonstrating the basis for your position.

Comment: The commenter responded that the regulations are sufficient to address the extended shutdown scenario, and therefore no changes to the NRC's regulations are necessary to ensure adequate protection of public health and safety or security.

10

NRC's Response: The NRC agrees with the comment.

Question 6: What additional reporting to the NRC should be required for a reactor in an extended shutdown, and with what level of detail and frequency (e.g., the potential changes to the submission of the decommissioning trust fund reports)? Please provide technical, scientific, or other data or information demonstrating the basis for your position.

Comment: The commenter responded that the regulations are sufficient to address the extended shutdown scenario, and therefore no changes to the NRC's regulations are necessary to ensure adequate protection of public health and safety or security. The commenter does not agree that additional reporting requirements are warranted because the petitioners have not "demonstrated the need for any changes to the reporting requirements applicable to a reactor," in an extended shutdown. The commenter adds that both a facility that is actively operating and a facility that is in an extended shutdown would be restricted to using only 3 percent of the decommissioning trust funds for pre-planning activities, consistent with the regulations in § 50.82.

NRC's Response: The NRC agrees with the comment.

Ill. Reasons for Denial The NRC is denying the petition because the petitioners did not present any significant new information or arguments that would support the requested changes for extended shutdown conditions. Furthermore, the NRC has determined that the issues raised by the petitioners are adequately addressed by existing NRC regulations, 11

preseEhlres, aREI 91iiElaRse, and no amendments to the NRC's regulations are necessary.

ll. Eliss1issieR et tl=te existiRg re91ilatery frame*.t1erk felle*.vs.

Issue No. 1: Define "extended shutdown" for power reactors The NRC is denying requested changeissYe No. 1 because there is no need to define "extended shutdown" in the regulations. The holder of an operating license is required to maintain the facil ity and all of its security and operational programs in accordance with the conditions of its operating license. This remains true whether the facility is operating or shut down for any period of time, including extended shutdowns.

As discussed further under Issue Nos. 2, 3, and 4, the licensee must maintain programs in effect to ensure the continued safety and security of the facility regardless of the mode of operation . Therefore, the issues raised by the petitioners associated with what could be defined as an extended shutdown are currently and adequately covered by the existing regulations and NRC processes.

Issue No. 2: Establish requirements during an extended shutdown period, including the petitioners' proposed "Reactor Extended Shutdown Activities Report" (RESAR)

The NRC is denying requested changeissYe No. 2 because there is no need to require the licensee to submit a RESAR prior to entering an extended shutdown condition. This proposed report, as soughtfaisee by the petitioners, would be similar to the post-shutdown decommissioning activities reportthe requiregffi8Rts-ffiM

§ 50.82(a)(4)(i) fer tl=te pest sl=t1itElewR EleGefl'lmissieRiRg astivities repert and would describe how certain activities are handled during an extended shutdown. The petitioners identified topics they believe iRsl11EleEI items tl=tat should be 12

addressed~ in the ~ - Those items are listed below followed by the staffs evaluation of each item:

Operator License Aging Management Technical Specifications In-service Inspections (and In-service Testing)

Quality Assurance Irradiated Fuel Protection Fitness for Duty Operator License An operator's license is not automatically terminated based solely on an extended plant shutdown. In accordance with § 55.55, an operator's license expires afteF.-6 years after the date of issuance, upon termination of employment, or upon determination by the facility licensee that the license is no longer needed. An operator's license can be renewed if the requirements of§ 55.57 are met. Whether the facility is operating or is in extended shutdown, licensed operators and senior operators, as defined in § 55.4, are required to successfully complete requalification requirements established by § 55.59 to maintain their licenses. Further, licensed operators and senior operators are required to meet proficiency requirements established by§ 55.53(e) to maintain an active status.

Active status under§ 55.53(e) is maintained by performing the functions of an operator or a senior operator, as defined in the facility's technical specifications, for a specified number of shifts per calendar quarter. For an operator or senior operator who does not meet the§ 55.53(e) requ irements resulting in an in-active status on his or her license, the requirements of§ 55.53(f) apply to ensure proficiency before an operator can legally 13

perform licensed duties. To maintain or restore active status on an operator's license, the facility would need to remain in a mode of operation that requires operators to actively perform the functions of an operator or senior operator, as defined by § 55.4.

However, if the facility is in a mode of operation that does not allow for licensed duties to be performed , this may result in a licensed operator(s) becoming in-active. The licensee may find it appropriateaGGeptallle to have a reduced number of active licensed operators during an extended shutdown. Before restarting , however (as stated later l:IAder lss1:1e

~ . the licensee would be required to have the required number of active licensed operators in place pef-jn accordance with its licensing basis and the existing 10 CFR part 55 requirements.

Aging Management A licensee with a facility in an extended shutdown must still perform the activities specified in its NRC-reviewed aging management programs, if its current licensing basis includes such programs. Any adjustments to aging management programs are considered changes to the facility's licensing basis and are controlled through current regulations under § 50.59, "Changes, tests, and experiments/ which outlines a process to determine whether a change can be made by the licensee or whether the change requires prior NRC approval.

The scope of aging management activities does not change during an extended shutdown. Current regulations in 10 CFR part 54 establish the scope of aging management programs that are only for passive components, based on whether they perform a prescribed intended function "without moving parts or without a change in configuration or properties.* The determination of whether a component is classified as either passive or active is not based on frequency of either operation or surveillance 14

testing. The assurance of proper function for active components during an extended shutdown would not fall within established aging management activities. Active components are included In the surveillance requirements that are part of the technical specifications in the license, as well as inservice testing programs required by regulation.

Technical Specifications A facility's technical specifications are a part of its operating license. A noncompliance with technical specifications is a noncompliance with a facility's operating license requirements and subject to enforcement action.

The usage rules contained in technical specifications are structured in such a manner as to provide reasonable assurance of continued adequate protection of public health and safety regardless of the amount of time a facility has been shut down. The requirements for perfonnlng and meeting the surveillance requirements in technical specifications are independent of the amount of time a facility has been shut down.

Rather, requirements for perfonning surveillances and meeting surveillance requirements are dependent on the faGillty-mode the facility is in. as defined in the technical specifications, or on other specified conditions in the applicability of a limiting condition for operation.

Before a licensee changes the enteFing a new mode (e.g., restarting) , the2 facility is in (for example, from cold shutdown to hot shutdown or from startup to power operation ) rn1,1st eernenstrate el)eraeility. Therefore, any req1,1iree structures, systems, and components necessary for safe operation of the facility in the new mode must be operable, and the applicable surveillances must have been conducted as aeAAee mrequired by the facility's technical specifications, before transition san oss1,1r. No additional "lay-up" program or testing/inspection is required .

15

The usage rules of technical specifications are independent of the amount of time a facility has been in a shutdown cond ition and a noncompliance with the usage rules is a noncompliance with the operating license requirements subject to enforcement action .

Therefore, the NRC does not agree that a new regulation is needed to require a licensee to explain whether testing and inspections per the technical specifications will be continued during a shutdown period.

The technical specifications set out different requ irements for different modes of operation. The NRC agrees that fewer requirements within the technical specifications are applicable when a reactor is in cold shutdown , refueling or defueled. However, the techn ical specifications still provide reasonable assurance of adequate protection of public health and safety. The reason that fewer requirements within the technical specifications apply in cold shutdown, refueling , or defueled conditions is that there are fewer credible scenarios that could impact public health and safety when plants are in af!Y mode where the reactor is shut down or defueled. Nonetheless, the licensee must evaluate the impact of degradation of required structures, systems, and components on the operability of those structures, systems, and components. If a licensee determines that a required system is inoperable, then the licensee must comply with the required actions in the technical specifications. Furthermore, the design features of the technica l specifications apply at all times, regardless of mode or time since shutdown. For example, t+he design features , fer example, typically contain requirements for fuel storage that, if altered or not met, would have a significant impact on safety.

lnservice Inspection {and lnservice Testing}

In accordance with § 50.55a(g),Section XI of the American Society of Mechanical Engineers (ASME) Boiler and Pressure Vessel Code provides the 16

requirements for inservice inspection of nuclear power plants.Section XI requires examinations to be scheduled in 10-year inspection intervals.Section XI has provisions that allow a licensee iRSJlestieR iRleF\*als to ee-shortenee or lengthenee inspection intervals to conform to a facility's outage schedule.Section XI, IWA-2430(d) provides allowances for extended outages. It states. in part, that:

.. .for plants that are out of service continuously for 6 months or more, the inspection interval during which the outage occurred may be extended for a period equivalent to the outage and the original pattern of intervals extended accordingly for successive intervals.

In accordance with § 50.55a(f). the ASME Operation and Maintenance of Nuclear Power Plants (OM Code) provides requirements for inservice testing of pumps and valves in nuclear power facilities. The OM Code requires testing to be scheduled periodically within the 10-year inservice testing program intervals. Licensees may extend +!he 10-year inservice testing program intervals may ee e>EteRaea for plants with extended outages, as discussed above for inservice inspection. For plants that are continuously out-of-service, peF-the OM Code provides that; the test schedule for pumps and valves may not be necessaryReea Rat ee fallawea . Illa relief requests are requires.

Within 3 months before the plant is placed back in operation, peF-the OM Code requires that, the pumps must be tested, and the valves must be exercised. Additionally, Section 06.02 of IMC 0375 directs inspectors to verify that the licensee has considered the latest vendor bulletins and other important information related to safety-related equipment, consistent with licensee procedures.

Quality Assurance

+l:iere is Re SJleGifiG rela11atiaR af a Ry af I the requirements of appendix B.

"Quality Assurance Criteria for Nuclear Power Plants and Fuel Reprocessing Plants," to 17

10 CFR part 50 (appendix B) continue to apply tof81: an operating facility that is in an extended outage. Appendix B establishes quality assurance requirements for the design, manufacture, construction, and operation of certain structures, systems, and components. The pertinent requirements of this appendix apply to all licensee activities affecting the safety-related functions of these structures, systems, and components, regardless of whether the facility is producing power or in a shutdown condition. Such activities include designing, purchasing, fabricating, handling, shipping, storing, deaning, erecting, installing, inspecting, testing, operating, maintaining, repairing, refueling, and modifying these structures, systems, and components. Criterion II, "Quality Assurance Program," of appendix B, requires that the quality assurance program, be documented by written policies, procedures, or instructions and be carried out throughout the life of the facility. Thus, appendix B requires compliance with the applicable portions of the regulations for covered activities regardless of whether or how long the facility has been in a shutdown period. Licensed operators and other licensee staff would still be required to be trained to perform activities affecting quality; to follow written procedures or instructions (where applicable); and to document, evaluate, and resolve issues through the implementation of the non-conformance and corrective action programs. In addition, criterion XVIII, "Audits," of appendix B, requires licensee staff to continue to evaluate programs and processes through periodic auditing throughout the life of the facility and is applicable to facilities regardless of whether or how long a facility has been in a shutdown condition.

18

l"adiated Fue/2 The petitioners requested that the NRC requ ire license~ to develop and submit a RESAR that includes a discussion of how the facility will ensure, El~FiAg aA eia:eAEleEI slrntaewA perieEI, that any irradiated fuel will be protected and not be damaged during an extended shutdown period. In addition, the petitioners requested that the RESAR describe how the public and facility personnel will be protected, should irradiated fuel become damaged . The NRC determined that the existing regulations, guidance, and processes already discussed in this notice would prevent and mitigate such damage from a design and safety standpoint. The NRC also reviewed other existing regulatory requirements not specifically mentioned by the petitioners. Specifically, the NRC considered emergency planning requirements and security requirements (tl=te ElesigA easis tl=tFeat) in making this conclusion.

l"adiated Fuel: Emergency Planning Emergency planning regulations and required licensee emergency plans are in placealFeaEly e*ist to protect workers and the public from damaged irradiated fuel per

§ 50.54, "Conditions of licenses," te-includinge when the facility is in extended shutdown .

Specifically, § 50.54(q)(2) requires that the licensee follow and maintain the effectiveness of an emergency plan that meets the requirements in appendix E to part 50 and, for a nuclear power reactor facility, the planning standards of§ 50.47(b). In accordance with§ 50.47(b)(14), a licensee must conduct periodic exercises to evaluate major portions of emergency response capabilities, while periodic drills are conducted to 2 As part of its review of the petition, the NRC reviewed other existing regulatory requirements. While not specifically mentioned by the petitioners, a discussion of emergency planning requirements and security design basis threats is included in this notice, as both topics relate to protecting the public and plant personnel, should irradiated fuel become damaged.

19

develop and maintain key skills. Any deficiencies identified as a result of exercises or drills must be corrected.

Irradiated Fuel: Design Basis Threat Existing regulations in 10 CFR part 73, "Physical Protection of Plants and Materials,' require security protection when irradiated fuel is onsite and stored inside the protected area, regardless of the reactor's operational mode, or conditions, including an extended shutdown condition.

Pursuant to§ 73.1(b)(1)(i) licensees who are authorized to operate a nuclear power reactor under§ 50.57, as well as holders of a combined license under 10 CFR part 52 (after the Commission has made the finding under§ 52.103(g)) must comply with the requirements of§ 73.55. These requirements include a security plan with defined design basis threats, as described in §§ 73.1 and 73.2, to protect against acts of radiological sabotage and the associated protective strategy. The security plan includes a physical security plan, a training and qualification plan, a safeguards contingency plan, and a cyber security plan. Tl'le SJ18Sifis ElesigA easis tl'lreat is safeguards iAfarmatieA, vlRisl'I is JlFetesled uAEler § 73.21 aAEI is witl'll'lelEI ffem Jlll&lis ass86S JlllR.11aAt te tl'le req11iremeAts ef § Q.17.

Along with the security plan, § 73.55(k)(8) requires the licensee to establish and implement a protective strategy when irradiated fuel is onsite and stored in the protected area , regardless of the reactor's operational modes, or conditions.

Fitness for Duty Existing regulations in 10 CFR part 26, "Fitness for Duty Programs," require that all persons who are granted unescorted access to nuclear power reactor protected areas 20

by the licensees be subject to a fitness-for-duty program . Pursuant to§ 26.3(a),

licensees who are authorized to operate a nuclear power reactor faci lity under§ 50.57, as well as holders of a combined license under 10 CFR part 52 (after the Commission has made the finding under§ 52.103(9)) must comply with the requirements of 10 CFR part 26, except for subpart K, "FFD Program for Construction."

The fitness-for-duty program perfermanGe elajootives req1a1irea 1a1neer § 26.23 pre'liee reasenaele ass11ranGe ef an ineivid11al's aeility le safely and GempetenUy perferm Ais er Aer elllty 68FRFRens11rate wilA FRaintainin!J p110liG AeallA and safety. These requirements apply regardless of the reactor's operational modes, or conditions, and include drug and alcohol testing, behavioral observation, and determinations of fitness.

Therefore, staff has determined that reguested changel-sslle No. 2, to requ ire a licensee to develop and submit a RESAR, whether prior to or during an extended shutdown , is not necessary because the issues raised by the petitioners are currently and adequately covered by the existing regulations.

Issue No. 3: Establish requirements to exit and restart from extended shutdown The NRC is denying reguested chanqels6\le No. 3 because there is no need to amend the regulations to establish criteria for exiting an extended shutdown. The staff determined that existing reactor oversight process guidance provides for appropriate NRC oversight of a plant durinqifl an extended shutdown Genditian. Oversight of reactor facilities in extended shutdown for reasons not related to performance is governed by IMC 0375. One of the purposes of IMC 0375 is to provide assurance that the facility will be operated in a manner that provides adequate protection of public health and safety following restart. Section 06.02 of IMC 0375 discusses the inspection plan and indicates that a focus on operational readiness of the licensee for reactor restart may be 21 J

necessary. Aspects that may be considered as potential areas for additional NRC inspection include equipment upgrades and maintenance, procedure updates, facilities maintenance, and the status of the corrective action program . Also, licensees must continue to implement the Maintenance Rule in accordance with § 50.65, which mandates (1) an evaluation every 24 months that takes into account, where practical, industry-wide operating experience and (2) performance monitoring, condition monitoring, and preventative maintenance activities for all equipment covered by the rule. In addition, a facility cannot restart without active licensed operators per § 55.53 and as described previously under Issue No. 2.

IA aaaitieA, e~efore a licensee changes eAteriAg a higherthe mode a facility is in, any structures, systems, and components necessary for the safe operation of the facility in the new mode must be operable and the applicable (e.g. , restaFtiRg aREl iRsr:easiRg power) lhe liseRsee m11st eRs11re eperaeilil>J ef the re1111iree e1111ipmeRt aREl pass lhe re1111irea surveillances must have been conducted as required by the facility's technical specifications.fer tt:ie Rext t:iigt:ier meae prier te eAtry.

David Kraft of the Nuclear Energy Information Service raised many of the same issues in a letter to the agency dated June 16, 2016. By letter dated August 4, 2016, John Giessner from the Division of Nuclear Materials Safety in NRC Region Ill responded to Mr. Kraft. In this response letter, referenced by the petitioners as "the Giessner letter," the NRC staff answered questions about the requirements for power reactor decommissioning and extended shutdown. /1.s resegRizea iR tihe NRC's response letter noted that, the regulations do not prohibit a licensee from voluntarily entering the extended shutdown configuration described in the petition and refers to IMC 0375, which provides for NRC oversight of a facility exiting from extended shutdown. If a licensee were to places a facility in extended shutdown and later decides 22

to restart, the NRC t:ias aeteFmiRea tt:iat tt:ie a9eRsy has sufficient regulations, processes, and procedures in place to ensure that the restart is conducted in a safe manner.

The example cited by the petitioners was the extended shutdown of Browns Ferry Nuclear Plant, Unit 1, which was shut down from March 1985 to June 2007, after operating for 10 years. During the tl.veRty twelf:year shutdown, the NRC continued to provide oversight via-with multiple resident inspectors assigned to the Browns Ferry Nuclear Plants. Further, NRC staff from regional and headquarters offices routinely visited the Browns Ferry Nuclear Plant for oversight of the operating Unit 2 and 3 reactors. As part of the reactor oversight process, the NRC developed an inspection procedure to monitor the restart effort and-te ensure that the plant was able to restart and operate in a safe manner. This procedure 8¥8Rb1ally l:leeamefonned the basis for the current IMC 0375. The NRC was al:lle te useg existing regulatory tools. including

{&.§,; inspectors, inspection procedures, and enforcement of the operating license.)

during the startup of Browns Ferry Nuclear Plant, Unit 1, ~ in 2007 . *6,s e~*ia8Rsea l:ly 11:!e staFk-:111 ef 8F8WRS J;eFF)' ~h1sleaF PlaRt, YRit 1, tAe NRC maiRtaiRS 1/:le FS911latei:y teals Resessai:y te effesti'lely 0Rs11re tt:iat tt:ie 11111:llis t:iealtt:i aRa safety aRa eemmeR aefeRS8 aRa S8611Fity OORtiR118S te be !lF8l86tea.

The NRC staff found aaaitieRal other examples of power reactor facilities experiencing extended shutdowns relevant to the petition including: Crystal River Nuclear Generating Plant, Unit 3, wh ich was shut down for an extended period of time before permanently ceasing operations; Kewaunee Power Station, which had pennanently shut down and defueled but later considered restarting and relicensing (it ultimately decided not to restart); and James A. FitzPatrick Nuclear Power Plant, Davis-Besse Nuclear Power Station , Unit 1, and Perry Nuclear Power Plant, Unit 1 for which a 23

decision to permanently cease operations was reversed . The NRC staff's review of these additional examples found that the existing regulatory tools were effective and sufficient in addressing these different scenarios and ensured that the public health and safety and common defense and security continued to be protected.

Therefore, the NRC finds that the potential safety and security issues associated with exit and restart from extended shutdown are currently and adequately covered by the existing regulations aRe NRG J:lFOGesses. While the current regulations provide for appropriate NRC oversight. the NRC agrees that Section 06.02 of IMC 0375 could be improved to explicitly direct inspectors to confirm that licensees have addressed any deferred actions on applicable NRC bulletins. generic letters. and licensing correspondence prior to plant startup from an extended shutdown.

Issue No. 4: Conduct a decommissioning funding review(s) during an extended shutdown and establish requirements to prevent the retraction of any letter of permanent cessation of operations certification The NRC is denying requested changel&SHe No. 4 because there is no need to prohibit withdrawal of a certification of permanent cessation of operations or to require additional re-assessmen1iAg of decommissioning funding during an extended shutdown.

Certifications under§ 50.82, "Termination of license" The regulations in § 50.82 do not prohibit a power reactor licensee from voluntarily placing its facilities in an extended shutdown without terminating the operating license. The regulations Ele-require licensees with an operating license for a power reactor in an extended shutdown to continue to meet all safety and security requirements as outlined in the facility's operating license.

24

The regulations in§ 50.82(a)(1) specify two actions that the licensee must take to permanently cease operations of a nuclear power facility. First, when the licensee decides to permanently cease operations, the licensee must preyidesubmit a certification of this decision to the NRC in writing within 30 days, per§ 50.82(a)(1 Xi). In accordance with§ 50.4(b)(8), this certification must contain the date on which the power generation operations have ceased or will cease. Second, under§ 50.82(a)(1Xii), the licensee must submit to the NRC a certification of permanent removal of fuel from the reactor vessel.

In accordance with § 50.82(a)(2), after the licensee submits and the NRC dockets both certifications, the licensee is no longer authorized to operate the reactor or place or retain fuel in the reactor vessel.

Filing of a certification under§ 50.82(a)(1)(i) of a determination to cease operations alone is not sufficient to resu lt in permanent cessation of operations. No existing regulation wou ld prevent the licensee from changing its decision to cease operations by retracting its certification under§ 50.82(a)(1 Xi).

he regulations do not specify a time limit for the permanent removal of fuel or the schedule for submitting the corresponding certification under§ 50.82(aX1)(ii) to the NRC. ~'~~itieAally,.._;i~!!F the NRG Eleskels_~ _E! sertiflsati~-~ reEj11ire~ by §_aQ.82£~}(1), Re Commented [8J1]: Jo,n this sentence with the prior paragraph.

e11istiAg reg,-.llatieAs w011IEI e11plisitly prehibit the ~IRG frem r-ea11ttie~iAg eperatieA; hewever, ltle liseAsee we11la Ra\<e ta aemeAstrate tl:tat it meets all !Re req11iremeAls iA 1Q GfR part 5Q aAa req11est appreval frem tl:te NRG le a111Rerize eperatieA aAa. TRe NRG w011la tl:teA EletermiAe wl:tell:ter 11:te liseAsee l:tas met all req11ireR18Als .

Wl:tile tl:te ~IRG saAAel preYeAt tl=le liseAsee frem elestiAg te Gease eperatieA aAEI traAsitieA te aeoommissieAiAg , tl:te NRG saA step aesemmissieAiA!l asti*Aties iA sertaiA sit11ati0As. However, t+he NRC's regulation at § 50.82(a)(6) states that the licensee 25

must not perform any decommissioning activity that: (1) forecloses release of the site for possible unrestricted use, (2) results in any significant environmental impact not previously reviewed , or (3) results in there no longer being reasonable assurance that adequate funds will be available for decommissioning. If any decommissioning activity could not meet these conditions, the licensee is prohibited from undertaking the activity until it submits, and the NRC approves, a license amendment request that describes the proposed activity and the potential impact associated with that activity.

The petitioners provided no basis for requesting the NRC to explisitly prohibit withdrawal of §the certification of ll:!e-permanent cessation of operations submitted pursuant to§ 50.82(a)(1)(i). There is no hmi:lameRtal change in the &tatY&authority to operate granted by a ~ facility's operating license associated solely with the filing of the§ 50.82(a )(1)(i) certification . Further, there is no change in the regulatory treatment of a commercial nuclear power reactor based solely on the submittal of the certification of permanent cessation of operations required by§ 50.82(a)( 1)(i). Thus, withdrawal of this certification , in and of itself, regardless of whether the licensee intends to enter into an extended shutdown or continue operating the facility, does not affect the status of the facility with respect to the NRC's requirements. Similar regulations are found under

§ 52.110 for combined licenses. IR ai:li:litieR, iR its letter i:late£l .A.1,1g1,1st 4, 2Q1e, ti-le NRG staff respeRi:leEI te similar q1,1eslieRs fr8m David Kraft ef ti-le ~J1,1slear eRergy IRfermatieR SeFYiGe regari:liRg tl=le sertifisalieRs aRi:l liseRse termiRatieR req1,1iremeRts 1,1R£ler § 5Q.82.

Therefore, the NRC concludes that prohibiting the licensee from withdrawing a certification of permanent cessation of operations in accordance with§ 50.82(a )( 1)(i) would not address a new safety or security issue that is not currently and adequately covered by the existing regulations.

26

Decommissioning Funding The petitioAeF6 asserteEl that a fasility iA aA e11teAEled sh1a1tElowA may eveAt1a1ally res1a1mo operatioA er eAter ElesemmissieAiAg. The petitioners requested that the amended regulations clearly address whether decommissioning funding may be used for activities during a facility's extended shutdown and, if so, the criteria and conditions governing use of decomm issioning funding should be included in the amended regulations.

The regulations under§ 50.82(a)(8)(ii) do not allow decommissioning trust funds to be used for any activities (except decommissioning planning) while the licensee has an operating license including during an extended shutdown. In addition , the licensee in extended shutdown is not relieved of any existing decommissioning trust fund regulations that are applicable to any facility with an operating license.

The petitioners also requested that the amended regulations require licensees to submit a preliminary decommissioning cost estimate to the NRC at 5-year intervals throughout the period of extended shutdown . The petitioners also inquired whether the decommissioning funding amounts required by§ 50.75(c) should be re-assessed during an extended shutdown.

Regulations under§§ 50.75(f)(1) and (f)(2) require licensees to report at least once every 2 years on the status of its decommissioning funding and related factors. In addition to these requirements for biennial reports, § 50.75(f)(3) requires that each power reactor licensee shall , at or about 5 years prior to the projected permanent cessation of operations,3 submit a preliminary decommissioning cost estimate, which includes an up-to-date assessment of the major factors that could affect the cost to 3 The *permanent cessation of operations* in this context refers to when a licensee is no longer authorized to operate the reactor or place or retain fuel in the reactor vessel, per§ 50.82(aX2).

27

decommission. The extended shutdown has no effect on the license expiration date, and all applicable decommissioning funding regulations remain in effect, including

§ 50.75.

Therefore, the NRC finds that prohibiting withdrawal of a certification of permanent cessation of operations under§ 50.82(a)(1 )(i) or kHequiriD.ge additional re-assessmentiA§ of decommissioning funding during an extended shutdown would not address a new safety or security issue that is not currently and adequately covered by the existing regulations.

IV. Availability of Documents The documents identified in the following table are available to interested persons through one or more of the methods, as indicated.

ADAMS ACCESSION NO./

DOCUMENT FEDERAL REGISTER CITATION Request for Petition for Rulemaking (PRM-50-114), dated ML16258A486 September 1, 2016.

Federal Register notice, "Power Reactors in Extended 81 FR 89011 Shutdowns," dated December 9, 2016.

Comment Submission 1: Rodney McCullum of Nuclear Energy ML17055B792 Institute (NEI), dated February 22, 2017.

Comment Submission 2: Paul Bessette of Morgan, Lewis & ML17055B953 Bockius, LLP (on behalf of Entergy Nuclear Operations, Inc.),

dated February 23, 2017.

IMC 0350, "Oversight of Reactor Facilities in a Shutdown Condition ML17116A273 Due to Significant Performance and/or Operational Concerns,"

dated March 1, 2018.

28

IMC 0375, "Implementation of the Reactor Oversight Process at ML15247A274 Reactor Facilities in an Extended Shutdown Condition for Reasons Other Than Performance," dated November 13, 2015.

NUREG/BR-052 1, "Decommissioning Nuclear Power Plants," ML14210A472 dated August 2014.

NUREG-1 700, Revision 1, "Standard Review Plan for Evaluating ML031270391 Nuclear Power Reactor License Termination Plans," dated April 2003.

Regulatory Guide (RG) 1.184, Revision 1, "Decommissioning of ML13144A840 Nuclear Power Reactors," dated October 2013.

RG 1.179, Revision 1, "Standard Format and Content of License ML110490419 Termination Plans for Nuclear Power Reactors,* dated June 2011 .

Letter from Mr. David A. Kraft of Nuclear Energy Information ML16175A449 Service, dated June 16, 2016.

NRC Letter to Mr. David A. Kraft of Nuclear Energy Information ML16218A266 Service, dated August 4, 2016.

FirstEnergy Solutions Corp. Letter, "Withdrawal of Certification of ML19207A097 Permanent Cessation of Power Operations for Davis-Besse Nuclear Power Station. Unit No. 1, and Perry Nuclear Power Plant, Unit No. 1," dated July 26, 2019.

Draft regulatory issue summary, "Disposition of Information 81 FR 30571 Related to the Time Period that Safety-Related Structures, Systems, or Components are Installed," dated May 17, 2016.

The NRC may post materials related to this document, including public comments, on the Federal Rulemaking Web site at http://www.regulations.gov under Docket ID NRC-2016-0204. The Federal Rulem aking Web site allows you to receive alerts when changes or additions occur in a docket folder. To subscribe: 1) navigate to the docket folder (NRC-2016-0204); 2) click the "Sign up for E-mail Alerts" link; and 3) enter your e-mail address and select how frequently you would like to receive e-mails (daily, weekly, or monthly).

V. Conclusion 29

For these reasons GiteEl iR tl:lis EleG1imeRI, the NRC is denying PRM-50-114. The NRC has concluded that the issues raised by the petitioners are adequately addressed by existing NRC regulations , J'IFeseElYRIS, aREl gYiElaRse, and no amendments to the NRC's regulations are necessary.

Dated at Rockville, Maryland, this day of . ~2020.

For the Nuclear Regulatory Commission.

Annette L. Vietti-Cook, Secretary of the Commission.

30

UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON , D.C. 20555-0001 JMB edits Edwin Lyman (on behalf of DaviEI A. Loohbaum)

Director, Nuclear Safety Project Union of Concerned Scientists 1825 K Street, NW, Suite 800 Washington, DC 20006-1232

Dear MDr. Lyman:

I am responding to the Da'liEI Loohbaum's petition for rulemaking (PRM) submitted on behalf of the Union of Concerned Scientists, Greenpeace, and Natural Resources Defense Council onaatea September 1, 2016, submitted on behalf of tho Union of Conoerned Soientists and two oo petitioners, Groonpeaoo and National Resouroos Defense Counoil (Agencywide Documents Access and Management System Accession No. ML16258A486). The U.S. Nuclear Regulatory Commission (NRC) docketed the petition as PRM-50-1 14. The petition requested the NRC amend its regulations in Title 10 of the Code of Federal Regulations (10 CFR) Part 50, "Domestic Licensing of Production and Utilization Facilities," to "promulgate regulations applicable to nuclear power reactors with operating licenses issued by the NRC but in an extended outage."

The NRC published a notice of docketing for PRM-50-114 in the Federal Register on December 9, 2016 (81 FR 89011 ). The staff received two public comment subm issions during the 75-day public comment period; both submissions were in favor of denying the petition and provided a basis for that conclusion .

The NRC is denying PRM-50-114 because it has determined that the issues raised by the petitioners are adequately addressed by existing NRC regulations, prooeduros, and guidanoe, and therefore, no amendments to the NRC's regulations are necessary. While the staff determined that the existing regulations provide for appropriate NRC oversight, the agency agrees that Inspection Manual Chapter 0375 could be improved to direct inspectors to confirm that licensees have addressed any deferred actions on applicable NRC bulletins, generic letters, and licensing correspondence prior to plant startup from an extended shutdown. The enclosed notice, which will be published in the Federal Register, explains the reasons for the denial.

Upon publication of the enclosed notice, the NRC will close the docket for PRM-50-114.

You may direct any questions about this matter to Dennis Andrukat by calling 301-415-3561 or sending an e-mail to Dennis.Andrukat@nrc.gov.

Sincerely, Annette L. Vietti-Cook Secretary of the Commission

E. Lyman

Enclosure:

Federal Register notice

POLICY ISSUE NOTATION VOTE RESPONSE SHEET TO: Annette L. Vietti-Cook, Secretary FROM : Commissioner Caputo

SUBJECT:

SECY-19-0121 : Denial of Petition for Rulemaking on Power Reactors in Extended Shutdown (PRM 114;NRC-2016-0204)

Approved X Disapproved - - Abstain - - Not Participating COMMENTS: Below X Attached X None I approve the staffs recommended denial of the petition. I approve the draft Federal Register notice (Enclosure 1) and draft letter to the petitioner (Enclosure 2), as edited in the attached versions.

Entered in STARS Yes X No DATE

[7590-01-P]

AXC edits NUCLEAR REGULATORY COMMISSION 10 CFR Part 50

[Docket No. PRM-50-114; NRC-2016-0204)

Power Reactors in Extended Shutdowns AGENCY: Nuclear Regulatory Commission .

ACTION: Petition for rulemaking; denial.

SUMMARY

The U.S. Nuclear Regulatory Commission (NRC) is denying a petition for rulemaking dated September 1, 2016, submitted by Mr. David Lochbaum on behalf of the Union of Concerned Scientists and two co-petitioners (the petitioners). The petition was docketed by the NRC on September 14, 2016, and was assigned Docket No. PRM-50-114. The petitioners requested that the NRC amend its regulations to " promulgate regulations applicable to nuclear power reactors with operating licenses issued by the NRC but in an extended outage." The NRC is denying the petition because the NRC already has regulatory processes in place to address the issues identified in the petition.

DATES: The docket for the petition for rulemaking , PRM-50-114, is closed on [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER) .

ADDRESSES: Please refer to Docket ID NRC-2016-0204, when contacting the NRC about the availability of information regarding this petition. You may obtain publicly-available information related to this petition by any of the following methods:

• Federal Rulemaking Web Site: Go to https://www.regulations.gov and search for Docket ID NRC-2016-0204. Address questions about NRC dockets to Carol Gallagher; telephone: 301-415-3463; e-mail: Carol.Gallagher@nrc.gov. F~r technical questions, contact the individual listed in the FOR FURTHER INFORMATION CONTACT section of this document.

• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select Begin Web-based ADAMS Search. For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by e-mail to pdr.resource@nrc.gov. For the convenience of the reader, instructions about obtaining materials referenced in this document are provided in the "Availability of Documents" section.

• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room 01 -F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.

FOR FURTHER INFORMATION CONTACT: Dennis Andrukat, Office of Nuclear Material Safety and Safeguards, telephone: 301-415-3561; e-mail:

Dennis.Andrukat@nrc.gov; U.S. Nuclear Regulatory Commission, Washington DC 20555-0001 .

2

SUPPLEMENTARY INFORMATION:

TABLE OF CONTENTS:

I. The Petition II. Public Comments on the Petition Ill. Reasons for Denial IV. Availability of Documents V. Conclusion I. The Petition Section 2.802 of title 10 of the Code of Federal Regulations (10 CFR), "Petition for rulemaking--requirements for filing ," provides an opportunity for any iRteresteEI person to petition the Commission to issue, amend, or rescind any regulation. On September 1, 2016, Mr. David Lochbaum, on behalf of the Union of Concerned Scientists and two co-petitioners (petitioners), submitted a petition for rulemaking (PRM) to the NRC. The NRC docketed this petition and assigned it Docket No. PRM-50-114.

The petitioners requested that the NRC amend 10 CFR part 50, "Domestic Licensing of Production and Utilization Facilities," to " promulgate regulations applicable to nuclear power reactors with operating licenses issued by the NRC but in an extended outage."

The petitioners described a scenario in which an operating commercial nuclear power plant (facility) could voluntarily be in an extended shutdown with no immediate plans to decommission. The petitioners stated that there are no regulations to prevent a licensee from changing its decision to cease operations by retracting its certification to do so, and that the current regulations were developed for operating reactor facilities and for reactor facilities in decommissioning, not for facilities "in limbo that will at some unspecified later date return to the operating reactor world or join the decommissioning community." The petitioners assertedstated that the current regulations are not 3

intended, as written, for an operating facility in an "extended shutdown. 1* The petitioners also stated that a licensee can placeJ!-tl:le facility in an extended shutdown without public participation or the NRC's review and approval, or p1a11llis partiGipalioA. The petitioners speculated that in the current economic climate, licensees may choose to place a facility in an extended shutdown until the marketplace becomes more favorable or the decision to proceed with decommissioning is made. The petitioners cited the Browns Ferry Nuclear Plant, Unit 1, as an example of a facility in an extended shutdown.

In 1985, Tennessee Valley Authority (TVA) voluntarily shut down Unit 1 and did not restart it until 2007. Ultimately, the petitioners asserted that the current regulatory framework does not manage the risk of a facility in an extended shutdown that a licensee may someday seek to restart.

The NRC identified four main issues in the petition, as follows:

1) Define "extended shutdown* for power reactors.

2) Establish requirements during an extended shutdown period, including the petitioners' proposed "Reactor Extended Shutdown Activities Report* (RESAR).

3) Establish requirements to exit and restart from an extended shutdown.

4) Conduct a decommissioning funding review(s) during an extended shutdown and establish requirements to prevent the retraction of any letter of permanent cessation of operations certification.

II. Public Comments on the Petition The NRC published a notice of docketing and request for comment in the Federal Register on December 9, 2016. The NRC also sought public comm ent on six specific 1 The petition describes an "extended shutdown* as either an operating reactor that has been shut down for 2 years or more and Is not actively pursuing restart under a formal NRC process or a when a licensee has voluntarily notified the NRC of its intent to place the facility in an "extended shutdown" condition.

4

I I

questions. The public comment period closed on February 22, 2017. The NRC received two public comment submissions during the 75-day public comment period; both submissions, which were from industry representatives, were in favor of denying the petition and provided a basis for that position. The two comment submissions, from the Nuclear Energy Institute (NEI) and Entergy Nuclear Operations. Inc. (Entergy), raised five comments in total. Only NEI addressed the specific questions that were included in the Federal Register notice that requested public comments. The ADAMS Accession Nos. for the comment submissions can be found in the "Availability of Documents" section of this document.

Public Comments:

The NRC has considered the public comments received on the petition for rulemaking. The NRC response follows a short summary of each comment submission.

Comment Submission 1:

NEI recommended that the NRC deny the petition because the petition has not demonstrated that the existing regulations require rulemaking based on the criteria in § 2.802(c)(1 )(iii). The commenter stated that PRM-50-114 should be denied because:

(Comment 1) "the petition incorrectly asserts that the Commission's existing regulations are inadequate as applied to operating reactors that have entered an extended shutdown," (Comment 2) "the petition provides no basis for requesting that the NRC establish new requirements that must be satisfied for a reactor to restart after an extended shutdown," and (Comment 3) "the petition provid es no basis for suggesting that the NRC should explicitly prohibit withdrawal of the certification of the permanent cessation of operations submitted pursuant to§ 50.82(a)(1 )(I)." The commenter noted 5

that a facility in extended shutdown must continue to comply with its operating license and NRC regulations applicable to operating nuclear power plants. This fast contrasts with the petitioners' assertions that the Commission's existing regulations are inadequate as applied to operating reactors that have entered iAte an extended shutdown. The commenter noted that a licensee may would still meet all applicable safety and security requirements even if it defers a generic communication action during an extended shutdown scenario. This is because generic communications do not impose new or changed regulatory requirements on licensees.

The commenter further noted that the petition does not provide a basis to change the regulations to require licensees to submit preliminary decommissioning cost estimates every 5 years during an extended shutdown. Once a licensee permanently ceases operations, then the licensee would be required to submit site-specific cost estimates as req1,1iree under§ 50.82, "Termination of license." The commenter noted that PRM-50-114 acknowledge§.e that the current regulations already require 10 CFR part 50 power reactor licensees to report decommissioning funding status every 2 years.

The commenter continued that

... many NRC regulations applicable to operating nuclear power plants continue to apply even after a nuclear power reactor has permanently ceased operation and defueled. This includes several regulations that seem to be of specific concern to the petitioners (e.g., emergency planning and physical security).

The commenter asserted that the petitioners provide no basis for requesting that the NRC establish new requirements that must be satisfied for a reactor to restart after an extended shutdown.

In response to the petitioners' requested new regulations for reactors that are in an extended shutdown and not actively pursuing restart to be evaluated under a formal process such as Inspection Manual Chapter (IMC) 0350, "Oversight of Reactor Facilities 6

in a Shutdown Condition Due to Significant Performance and/or Operational Concerns,"

the commenter noted that existing NRC procedures in IMC 0375, "Implementation of the Reactor Oversight Process at Reactor Facilities in an Extended Shutdown Condition for Reasons Other Than Performance," would achieve the petitioners' objective. As noted by the commenter, IMC 0375 is the NRC's inspeGtion guidance for implementation of the reactor oversight process for plants in an extended shutdown condition for reasons not related to performance. The commenter points out that IMC 0375 ensures that the NRC "communicates unified and consistent oversight in a clear and predictable manner to the licensee, the public, and other stakeholders" and also ensures the documentation of the required regulatory and licensee actions taken; the resolved technical issues leading to approval for restart, if required ; and the eventual return of the plant to the routine reactor oversight process. The commenter asserted that IMC 0375 will provide assurance that the plant will be operated in a manner that provides adequate protection of public health and safety following restart. The commenter stated that "the NRC oversight requested in the petition already exists" under the reactor oversight process. The commenter further stated that the resulting regulations sought in this petition would not result in significant improvements to reactor safety or security and would not improve regulatory efficiency.

NRC Response: The NRC generally agrees with the comments that were relayed in Comment Submission 1. Specifically, the NRC agrees that the Commission's existing regulations and guidance documents adequatel_y address facilities that enter any potential extended shutdown period§.

Comment Submission 2:

Entergy recommended that the NRC deny the petition. The commenter endorsed (Comment 4) the comments provided in NEl's letter. In addition, the 7

commenter stated that (Comment 5) making a§ 50.82(a)(1)(i) certification irrevocable is directly contrary to the assumptions and conditions of a recent settlement agreement entered into by Entergy, the State of New York (among other related New York governmental entities), and Riverkeeper, Inc. regarding the oontinued operation of Indian Point Units 2 and 3. The commenter noted that making a§ 50.82(a)(1 )(i) certification irrevocable would nullify key terms of this important agreement.

NRC Response: With respect to Entergy's aae~tien endorsement of the NEI comments as reflected in Comment Submission 1, the NRC's response is provided in response to Comment Submission 1. With respect to Entergy's Comment 5, the issue raised is outside the scope of the PRM.

Specific Questions:

The NRC has considered the responses received to the specific questions. Only NEI provided responses to the six specific questions on which the NRC sought comment. A summary of the responses provided in NEl's submission follows.

Question 1: The petition outlines a scenario where a reactor is in an extended shutdown condition due to economic or other reasons and would at some unspecified later date return to operation. The petition uses the Browns Ferry Nuclear Plant as an example, where the Tennessee Valley Authority voluntarily shut down one unit from 1985 to 2007. Are there any facilities or licensees who may be likely to use the petitioners' extended shutdown scenario in the future? Please provide technical, scientific, or other data or information demonstrating the basis for your position.

Comment: The commenter responded that it is not aware of a commercial power reactor likely to use the extended shutdown scenario. The commenter clarified that a 8

licensee is not prohibited from entering into an extended shutdown voluntarily and references the letter from David A. Kraft of Nuclear Energy Information Service dated June 16, 2016.

NRC's Response: The NRC agrees with the comment and notes the NRC's August 4, 2016 response to the David A. Kraft letter states that the NRC regulations do not prohibit a licensee from voluntarily placing its facilities in an extended shutdown, while continuing to meet all safety and security requirements as outlined in the facility's operating license, without terminating the operating license.

Question 2: The petitioners contend that the NRC's existing regulations were promulgated for operating reactors, and that specific regulations are needed to address non-operating reactors in an "extended shutdown." Assuming the extended shutdown scenario is *credible, in what specific ways are the existing regulations identified in the PRM [13etitieR fer rnleFRakiRg] insufficient to address the scenario described by the petitioners? Please provide technical, scientific, or other data or information demonstrating the basis for your position.

Comment: The commenter responded that the regulations are sufficient to address the extended shutdown scenario and therefore no changes to the NRC's regulations are necessary to ensure adequate protection of public health and safety or security.

NRC's Response: The NRC agrees with the comment.

Question 3: Assuming that the existing regulations identified in the PRM are insufficient to address the extended shutdown scenario, what specific changes to those regulations are needed to facilitate the requested rulemaking? Please provide technical, scientific, or other data or information demonstrating the basis for your position.

9

Comment: The commenter responded that the regulations are sufficient to address the extended shutdown scenario, and therefore no changes to the NRC's regulations are necessary to ensure adequate protection of public health and safety or security.

NRC's Response: The NRC agrees with the comment.

Question 4: The petition describes a plant in an "extended shutdown," and proposes two criteria to enter into this non-operating state (submission of§ 50.82(a)(1)(i) and

§ 50.4(b)(8) notifications; and a shutdown period of 2 years). Should the term "extended shutdown" be defined in § 50.2, "Definitions," and should the regulations specify the timeframe for this scenario? Please provide technical, scientific, or other data or information demonstrating the basis for your position.

Comment: The commenter responded that "extended shutdown" does not require a definition in the federal regulations because the regulations are sufficient to address the extended shutdown scenario.

NRC's Response: The NRC agrees with the comment.

Question 5: Given the NRC's long-standing, well-understood Reactor Oversight Program, what potential changes would need to be considered to ensure adequate oversight of a reactor during an extended shutdown? Please provide technical, scientific, or other data or information demonstrating the basis for your position.

Comment: The commenter responded that the regulations are sufficient to address the extended shutdown scenario, and therefore no changes to the NRC's regulations are necessary to ensure adequate protection of public health and safety or security.

NRC's Response: The NRC agrees with the comment.

10

Question 6: What additional reporting to the NRC should be required for a reactor in an extended shutdown, and with what level of detail and frequency (e.g., the potential changes to the submission of the decommissioning trust fund reports)? Please provide technical, scientific, or other data or information demonstrating the basis for your position.

Comment: The commenter responded that the regulations are sufficient to address the extended shutdown scenario, and therefore no changes to the NRC's regulations are necessary to ensure adequate protection of public health and safety or security. The commenter does not agree that additional reporting requirements are warranted because the petitioners have not "demonstrated the need for any changes to the reporting requirements applicable to a reactor," in an extended shutdown. The commenter adds that both a facility that is actively operating and a facility that is in an extended shutdown would be restricted to using only 3 percent of the decommissioning trust funds for pre-planning activities, consistent with the regulations in § 50.82.

NRC's Response: The NRC agrees with the comment.

Ill. Reasons for Denial The NRC is denying the petition because the petitioners did not present any significant new information or arguments that would support the requested changes for extended shutdown conditions. Furthermore, the NRC has determined that the issues raised by the petitioners are adequately addressed by existing NRC regulations, procedures, and guidance, and no amendments to the NRC's regulations are necessary.

A discussion of the existing regulatory framework follows.

11

Issue No. 1: Define "extended shutdown" for power reactors The NRC is denying Issue No. 1 because there is no need to define "extended shutdown" in the regulations. The holder of an operating license is required to maintain the facility and all of its security and operational programs in accordance with the conditions of its operating license. This remains true whether the facility is operating or shut down for any period of-time, including extended shutdowns. As discussed further under Issue Nos. 2, 3, and 4, the licensee must maintain programs in effect to ensure the continued safety and security of the facility regardless of the mode of operation.

Therefore, the issues raised by the petitioners associated with what could be defined as an extended shutdown are currently and adequately covered by the existing regulations and NRC processes.

Issue No. 2: Establish requirements during an extended shutdown period, including the petitioners' proposed "Reactor Extended Shutdown Activities Report" (RESAR)

The NRC is denying Issue No. 2 because there is no need to require the licensee to submit a RESAR prior to entering an extended shutdown condition. This proposed report, as raised by the petitioners, would be similar to the post-shutdown decommissioning activities report tRe requiregmeRts iR §-50.82(a)(4)(1) fer the f)Ost shllteowR eecommissioRiRg acti*Aties ref)ort and would describe how certain activities are handled during an extended shutdown. The petitioners included items that should be included in the proposed report. Those items are listed below followed by the staffs evaluation of each item:

Operator License Aging Management 12

Technical Specifications In-service Inspections (and In-service Testing)

Quality Assurance Irradiated Fuel Protection Fitness for Duty Operator License An operator's license is not automatically terminated based solely on an extended plant shutdown. In asserelanse wilA Under §-55.55, "Expiration " an operator's license expires aftef 6 years after the date of issuance, upon termination of employment, or upon determination by the facility licensee that the license is no longer needed. An operator's license can be renewed if the requirements of§ 55.57 "Renewal of licenses." are met.

Whether the facility is operating or is in extended shutdown, licensed operators and senior operators, as defined in § 55.4, are required to successfully complete requalification requirements established by § 55.59 "Regualification" to maintain their licenses. Further, licensed operators and senior operators are req uired to meet proficiency requirements established by§ 55.53(e) to maintain an active status. Active status under§ 55.53(e) is maintained by performing the functions of an operator or a senior operator, as defined in the facility's technical specifications, for a specified number of shifts per calendar quarter. For an operator or senior operator who does not meet the§ 55.53(e) requirements resulting in an in-active status on his or her license, the requirements of§ 55.53(f) apply to ensure proficiency before an operator can legally perform licensed duties. To maintain or restore active status on an operator's license, the facility would need to remain in a mode of operation that requires operators to actively perform the functions of an operator or senior operator, as defined by § 10 13

CFR 55.4. However, if the facility is in a mode of operation that does not allow for licensed duties to be performed, this may result in a licensed operator(s) becoming in-active. The licensee may find it acceptable to have a reduced number of licensed operators during an extended shutdown. Before restarting , however (as discussed in Section Ill , "Reasons for Denial." stated later lffider Issue No. 3 "Establish requirements to exit and restart from extended shutdown ," of this document), the licensee would be reqyireaneed to have the required number of.licensed operators in place f}8F under its licensing basis and the existing 10 CFR part 55 requirements.

Aging Management A licensee with a facility in an extended shutdown must still perform the activities specified in its NRC-reviewed aging management program s, if its current licensing basis includes such programs. Any adjustments to aging management programs are considered changes to the facility's licensing basis and are controlled through current regulations under § 50.59, "Changes, tests, and experiments."

The scope of aging management activities does not change during an extended shutdown. Current regulations in 10 CFR part 54 establish the scope of aging management programs that are only for passive components, based on whether they perform a prescribed intended function "without moving parts or with out a change in configuration or properties." The determination of whether a com ponent is classified as either passive or active is not based on frequency of either operation or surveillance testing. The assurance of proper function for active components during an extended shutdown would not fall within established aging management activities. Active components are included in the surveillance requirements that are part of the technical specifications in the license, as well as inservisein-service testing programs required by 14

regulation.

Technical Specifications Under§ 50.36. 'Technical specifications." each ,A, facility's teGRRisal SJlesifisatieRs are a Jlart ef its operating license under 10 CFR part 50 for a power reactor must include technical specifications. These technical specifications include limiting conditions for operation as described in § 50.36(a)(2), that represent the lowest functional capability or performance levels of equipment required for safe operation of the facility. These technical specifications also include surveillance requirements as described in § 50.36(a)(3} that are requirements relating to test, calibration or inspection to assure that the necessary quality of systems and components is maintained and that the limiting conditions for operation will be met.7 ,A, ReRc8mJlliaRce with techRisal SJlecifisatieRs is a ReRsemJlliaRce with a facility's eJleFatiRg liceRse re{llliremeRls aml Sll9ject te eRfersemeRt astieR.

The usage rules oontained in technical specifications are structured in such a manner as to provide reasonable assurance of oontinued adequate protection of public health and safety regardless of the amount of time a facility has been shut down. The requirements for performing and meeting the surveillance requirem ents in technical specifications are independent of the amount of time a facility has been shut down.

Rather, requirements for performing surveillances and meeting surveillance requirements are dependent on the faGility mode the facility is in , as defined in the technical specifications, or Q!l_other specified oonditions in the applicability of a limiting condition for operation.

Before a licensee changes the mode a facility is in , eRteriRg a R8\v made ~ for example from a shutdown mode to Hot Standby or from Hot Standby to Startup 15

i:estaFtiRg), any structures. systems, and components necessary for safe operation of the facility in the new mode must'be operable, and the applicable surveillances must have been met as tRe fasility m1,1st elemeRsti:ate epei:alaility. TReFefeFe, aRy Feq11iFeel slFYGI\IFes, &Yfilems, aRel sempeReRts fer !Re Ret.V meele mYsl lae epei:alale, required by as elefiReel iR the facility's technical specifications~, laefere IFaR&itieR GaR eGG11r. No additiona l "lay-up" program or testing/inspection is required .

The usage rules of technical specifications are independent of the amount of time a facility has been in a shutdown condition and a noncompliance with the usage rules is a noncompliance with the operating license requirements subject to enforcement action.

Therefore, the NRC does not agree that a regulation is needed to requ ire a licensee to explain whether testing and inspections per the technical specifications will be continued during a shutdown period.

The technical specifications set out different requirements for different modes of operation. The NRC agrees that fewer requirements within the technical specifications are applicable when a reactor is in cold shutdown , refueling or defueled. However, the technical specifications still provide reasonable assurance of adequate protection of public health and safety. The reason that fewer requirements within the technical specifications apply in cold shutdown, refueling , or defueled conditions is that there are fewer cred ible scenarios that could impact public health and safety when plants are in any mode where the reactor is shut down or defueled. Nonetheless, the licensee must evaluate the impact of degradation of requ ired structures, systems, and components on the operability of those structures, systems, and components. If a licensee determines that a requ ired system is inoperable, then the licensee must comply with the required actions in the technical specifications . Furthermore, the design features of the technical specifications apply at all times, regardless of mode or time since shutdown . The design 16

features, for example, typically contain requirements for fuel storage that, if altered or not met, would have a significant impact on safety.

lnseNice Inspection [and lnseNice Testing]

In as68fflanse with Under § 50.55a(g),Section XI of the American Society of Mechanical Engineers (ASME) Boiler and Pressure Vessel Code provides the requirements for inservice inspection of nuclear power plants.Section XI requires examinations to be scheduled in 10-year inspection intervals.Section XI has provisions that allow a licensee inspestien inteFVals to 96 shortened or lengthened inspection intervals to conform to a facility's outage schedule.Section XI , IWA-2430(d) provides allowances for extended outages. It states in part, that:

.. .for plants that are out of service continuously for 6 months or more, the inspection interval during which the outage occurred may be extended for a period equivalent to the outage and the original pattern of intervals extended accordingly for successive intervals.

In as68fflanse with Under § 50.55a(f), the ASME Operation and Maintenance of Nuclear Power Plants (OM Code) provides requirements for inseFVisein-service testing of pumps and valves in nuclear power facilities. The OM Code requires testing to be scheduled periodically within the 10-year inseFYisein-service testing program intervals.

Licensees may extend +!he 10-year inservice testing program intervals may.he eMtended for plants with extended outages, as discussed above for inseFYieein-service inspection. Under the OM Code, licensees of ~ plants that are continuously out-of-service, per the OM Cede, are not required to follow the test schedule for pumps and valves need net he fellewed and do not need to submit relief requests which would otherwise be necessary . Ne relief requests are required. The OM Code requires that 17

W~ thin the 3 months before ~the plant is placed in operation, per tile OM Ceee, the pumps must be tested, and the valves must be exercised.

Additionally, Section 06.02 of IMC 0375 directs inspectors to verify that the -i Formatted: Indent: First line: o.s*

licensee has considered the latest vendor bulletins and other important information related to safety-related equipment, consistent with licensee procedures.

Quality Assurance There is no &peGifiG relaxation of aRy-Qf the requirements of appendix 8 , "Quality Assurance Criteria for Nuclear Power Plants and Fuel Reprocessing Plants," to 10 CFR part 50 (appendix B) for an operating facility that is in an extended outage.

Appendix B establishes quality assurance requirements for the design, manufacture, construction, and operation of certain structures, systems, and components. The pertinent requirements of this appendix apply to all licensee activities affecting the safety-related functions of these structures, systems, and components, regardless of whether the facil ity is producing power or in a shutdown condition . Such activities include designing, purchasing, fabricating, handling, shipping, storing, cleaning, erecting, installing, inspecting, testing, operating, maintaining, repairing , refueling, and modifying these structures, systems, and components. Criterion II , "Quality Assurance Program,"

of appendix B, requires that the quality assurance program , be documented by written policies, procedures, or instructions and be carried out throughout the life of the facil ity.

~ pendix B requires compliance with the applicable portions of the regulations for covered activities regardless of whether or how long the facility has been in a shutdown period. Licensed operators and other licensee staff would still be required to be trained to perform activities affecting quality; to follow written procedures or instructions (where applicable); and to document, evaluate, and resolve issues through 18

the implementation of the non-conformance and corrective action programs. In addition ,

~ riterion XVIII, "Audits," of appendix B, requires licensee staff to continue to evaluate programs and processes through periodic auditing throughout the life of the facility and is applicable to facilities regardless of whether or how long a facility has been in a shutdown condition.

l"adiated Fue/2 The petitioners requested that the NRC require -licensee§. to develop and submit a RESAR that includes a discussion of how the facility will ensure, Eh;1riRg aR eideREleEI sh1;1IEl8'.'JR perieEI, that any irradiated fuel will be protected and not be damaged during an extended shutdown period. In addition, the petitioners requested that the RESAR describe how the public and facility personnel will be protected, should irradiated fuel become damaged. The NRC determined that the existing regulations, guidance, and processes already discussed in this notice would prevent and mitigate such damage from a design and safety standpoint. The NRC also reviewed other existing regulatory requirements not specifically mentioned by the petitioners. Specifically, the NRC considered emergency planning requirements and security requirements (the design basis threat) in making this conclusion.

l"adiated Fuel: Emergency Planning Emergency planning regulations and required licensee emergency plans already exist to protect workers and the public from damaged irradiated fuel per§ 5Q.54 ,

2 As part of its review of the petition, the NRC reviewed other existing regulatory requirements. While not specifically mentioned by the petitioners, a discussion of emergency planning requirements and security design basis threats is included in this notice, as both topics relate to protecting the public and plant personnel, should irradiated fuel become damaged.

19

"CeRditieRs ef liceRses." te includl!}ge when the facility is In extended shutdown.

Specifically, §.50.54(qX2) requires that the licensee follow and maintain the effectiveness of an emergency plan that meets the requirements in appendix E to part 50 and, for a nuclear power reactor facility, the planning standards of§ 50.47(b). m accerdaRce withUnder § 50.47(b)(14), a licensee must conduct periodic exercises to evaluate major portions of emergency response capabilities, while periodic drills are conducted to develop and maintain key skills. Ally deficiencies identified as a result of exercises or drills must be corrected.

Irradiated Fuel: Design Basis Threat Existing regulations in 10 CFR part 73, "Physical Protection of Plants and Materials," require security protection when irradiated fuel is onsite and stored inside the protected area, regardless of the reactor's operational mode, or conditions, including an extended shutdown condition.

UnderPursuaRt te § 73. 55 1(e)(1)(i), licensees who are authorized to operate a nuclear power reactor~ under § §Q.57, as well as helders ef a comlaliRee liceRse uReer 10 CFR part 50 or 52 (after the Commission has made the finding under§ 52.103(9))

must cem,ally with the requiremeRts ef § 73.55. These requiremeRts iRcluee as must establish and maintain a security plan and the associated protective strategy with defined design basis threats, as described in §§ 73.1 and 73.2, to protect against acts of radiological sabotage~ aRe the asseciateg j;lmtecti'le str-ate~y. The security plan includes a physical security plan, a training and qualification plan, a safeguards contingency plan, and a cyber security plan. The specific design basis threat is safeguards information, which is protected under§ 73.21 and is withheld from public access pursuant to the requirements of § 9.17.

20

Along with the security plan,§ 73.55(k)(8) requires the licensee to establish and implement a protective strategy when irradiated fuel is onsite and stored In the protected area, regardless of the reactor's operational modes, or conditions.

Fitness for Duty Existing regulations in 10 CFR part 26, "Fitness for Duty Programs," require that all persons who are granted unescorted access to nuclear power reactor protected areas by the licensees be subject to a fitness-for-duty program. UnderP1,irs1,iant to § 26.3(a),

licensees who are authorized to operate a nuclear power reactor facility 1,incler § 50.57, as well as l:lolclers of a oomeinecl license under 10 CFR 50 or part 52 (after the Commission has made the finding under § 52.103(9)) must comply with the requirements of 10 CFR part 26, except for subpart K, "FFD Program for Construction."

The fitness-for-duty program perfonnance objectives required under § 26.23 provide reasonable assurance of an individual's ability to safely and competently perfonn his or her duty commensurate with maintaining public health and safety. These requirements apply regardless of the reactor's operational modes, or conditions, and Include drug and alcohol testing, behavioral observation, and detenninations of fitness.

Therefore, staff has detennined that Issue No. 2, to require a licensee to develop and submit a RESAR, whether prior to or during an extended shutdown, is not necessary because the issues raised by the petitioners are currently and adequately covered by the existing regulations.

Issue No. 3: Establish requirements to exit and restart from extended shutdown The NRC is denying Issue No. 3 because there is no need to amend the regulations to establish criteria for exiting an extended shutdown. The staff determined 21

that existing reactor oversight process guidance provides for appropriate NRC oversight of a plant in an extended shutdown condition. Oversight of reactor facilities in extended shutdown for reasons not related to performance is governed by IMC 0375. One of the purposes of IMC 0375 is to provide assurance that the facility will be operated in a manner that provides adequate protection of public health and safety following restart.

Section 06.02 of IMC 0375 discusses the inspection plan and indicates that a focus on operational readiness of the licensee for reactor restart may be necessary. Aspects that may be considered as potential areas for additional NRC inspection include equipment upgrades and maintenance, procedure updates, facilities maintenance, and the status of the corrective action program. In addition, a facility cannot restart without active licensed operators per § 55.53 and as described previously under Issue No. 2.

IA aEIElitieA, e_!!efore a licensee changes the mode a facility is in. for example from a shutdown mode to Hot Standby or from Hot Standby to Startup. any structures.

systems. and components necessary for safe operation of the facility in the new mode must be operable and the applicable surveillances must have been met as required by the facility's technical specifications. eAlefiAg a higher meEle (e.g., reslarliAg aAEI iAGreasiAg pewer) the liGeAsee must eAsure eperaeility ef the requireEI equipmeAt aAEI pass the requireEI surveillaAGes fer the Relit higher meEle pfier le entry.

David Kraft of the Nuclear Energy Information Service raised many of the same issues in a letter to the agency dated June 16, 2016. By letter dated August 4, 2016, John Glessner from the Division of Nuclear Materials Safety in NRC Region Ill responded to Mr. Kraft. In this response letter, referenced by the petitioners as "the Glessner letter," the NRC staff answered questions about the requirements for power reactor decommissioning and extended shutdown. As discussed resegAizeEI in the NRC's respense letter of August 4. 2016, NRC the regulations do not prohibit a licensee 22

from voluntarily entering the extended shutdown configuration described in the petition and refers...te IMC 0375, whiGA provides for NRC oversight of a facility exiting from extended shutdown. If a licensee were to places a facil ity in extended shutdown and later decides to restart, the NRC I-las Eleter:miRee ti-lat ti-le aseRsy has sufficient regulations, processes, and procedures in place to ensure that the restart is conducted in a safe manner.

The example cited by the petitioners was the extended shutdown of Browns Ferry Nuclear Plant, Unit 1, which was shut down from March 1985 to June 2007, after operating for 10 years. During the 22tweRty twe year shutdown, the NRC continued to provide oversight lliawith multiple resident inspectors assigned to the Browns Ferry Nuclear Plants. Further, NRC staff from regional and headquarters offices routinely visited the Browns Ferry Nuclear Plant for oversight of the operating Unit 2 and 3 reactors. As part of the reactor oversight process, the NRC developed an inspection procedure to monitor the restart effort and to ensure that the plant was able to restart and operate in a safe manner. This procedure e,,eRtl:Jally l:>esame formed the basis for the current IMC 0375. The NRC was al:>le ta useg_ existing regulatory tools (e.g. ,

inspectors, inspection procedures, enforcement of the operating license) during the startup of Browns Ferry Nuclear Plant, Unit 1, staftl:lp in 2007. As evieeRseeshown by the safe startup of Browns Ferry Nuclear Plant, Unit 1, the NRC maiRtaiRshas the regulatory tools necessary to effe6tively ensure that the public health and safety and common defense and security continues to be protected in the context of restart of a power reactor following an extended shutdown.

Tl-le NRC staff fel:JRe aeeitieRalOther examples of power reactor facilities experiencing extended shutdowns relevant to the petition includ~iRg: Crystal River Nuclear Generating Plant, Unit 3, which was shut down for an extended period of time 23

before permanently seasiRg cessation of operations; Kewaunee Power Station , which had permanently shut down and defueled but later considered restarting and relicensing (it ultimately the licensee chose Ele6i988 not to seek authorization for restart) ; James A.

FitzPatrick Nuclear Power Plant, Davis-Besse Nuclear Power Station, Unit 1, and Perry Nuclear Power Plant, Unit 1 for which the licensees had made a decision to permanently cease operations that was later reversed. The NRC staffs review of these additional examples found that the existing regulatory tools were effective and sufficient in addressing these different scenarios and ensured that the public health and safety and common defense and security continued to be protected.

Therefore, the potential safety and security issues associated with exit and restart from extended shutdown are currently and adequately covered by the existing regulations and NRC processes.

Issue No. 4: Conduct a decommissioning funding review(s) during an extended shutdown and establish requirements to prevent the retraction of any letter of permanent cessation of operations certification The NRC is denying Issue No. 4 because there is no need to prohibit withdrawal of a certification of permanent cessation of operations or to require additional i:e-assessmentsiRg of decommissioning fund ing during an extended shutdown.

Certifications under § 50.82, "Termination of license" The regulations in § 50.82 do not prohibit a power reactor licensee from voluntarily placing its facilities in an extended shutdown without term inating the operating license. The regulations do require !!_licensees with an operati ng license for a power 24

reactor in an extended shutdown to continue to meet all safety and security requirements as outlined in the facility's operating license.

The regulations in§ 50.82(a)(1) specify two actions that the licensee must take to permanently cease operations of a nuclear power facility. First, when the licensee decides to permanently cease operations, the licensee must ~ a certification of this decision to the NRC in writing within 30 days, under--p8f

§ 50.82(a)(1 Xi). In a668r:aanse withUnder § 50.4(b)(8), this certification must contain the date on which the power generation operations have ceased or will cease. As a result.

licensees typically submit an initial certification of the intended permanent cessation of operations providing a planned date and a certification of actual cessation of operations providing the actual date. Second, under§ 50.82(a)(1 Xii), the licensee must submit to the NRC a certification of permanent removal of fuel from the reactor vessel. IR a668r:aanse withUnder § 50.82(a)(2), after the lisensee submits andonce the NRC dockets ooththe certifications, the licensee is no longer authorized to operate the reactor or place or retain fuel in!Q the reactor vessel.

The submittal and docketing Filifl9 of a certification under§ 50.82(a)(1 Xi) of a determination to permanently cease operations alone is not sufficient to result in permanent sessalien ef eperatiens removal of a licensee's authority to operate the reactor. No existing regulation would prevent-thea power reactor licensee from changing its decision to cease operations by retracting its certification under§ 50.82(a)(1 )(i).

The regulatiens de net spesify a lime limit fer the permanent Feme*,al ef fuel er the sshedule fer submitting the serrespending sertifisatien Ynder § 5QJl2(a)(1)(ii) te the NRC. Additienally, after the ~IRC deskets the sertifisatiens Fequired by § 5Q.82(a)(1 ), ne 8l<isling regulatiens w~Yld expli6iUy prehibit the NRC frem FeaYtherizing eperatien:

hewe>Jer, the lisensee weYld have te demenstrate that it meets all the requirement&-iR 25

1Q CF°R part liQ aRd Feqwest appF8 1,*al ffem tile NRC te awlhaFi:!e apeFali8R aRd. Tile NRC wowld tf:leR deteFFRiRe wf:letf:leF tile lis&Rsee Ila& met all FeqwiFemeRts.

While the NRC cannot prevent the licensee from electing to cease operation and transition to decommissioning, the NRC can stop decommissioning activities in certain situations. The NRC's regulation at§ 50.82(a)(6) states that the licensee must not perform any decommissioning activity that: (1) forecloses release of the site for possible unrestricted use, (2) results in any significant environmental impact not previously reviewed, or (3) results in there no longer being reasonable assurance that adequate funds will be available for decommissioning. If any decommissioning activity could not meet these conditions, the licensee is prohibited from undertaking the activity until it submits, and the NRC approves, a license amendment request that describes the proposed activity and the potential impact associated with that activity.

The petitioners provided no basis for requesting the NRC to ~ prohibit withdrawal of lheg certification of the permanent cessation of operations submitted under JlWF&WaRt te § 50.82(a)(1 )(i). There is no fuRdameRlal change in the &taws authority to operate granted by a af..tR&..facility's operating license associated solely with the filing of the§ 50.82(a)(1)(i) certification. F°1:1rtf:leF, ti here is also no change in the regulatory treatment of a commercial nuclear power reactor based solely on the submittal of the certification of permanent cessation of operations required by§ 50.82(a)(1 )(i). Thus, withdrawal of this certification, in and of itself, regardless of whether the licensee intends to enter iRte an extended shutdown or continue operating the facility, does not affect the status of the facility with respect to the NRC's requirements. Similar regulations are found l:IRdeR_n § 52.110 for combined licenses. In addition, in its letter dated August 4, 2016, the NRC staff responded to similar questions from David Kraft of the 26

Nuclear Energy Information Service regarding the certifications and license termination requirements under § 50.82.

Therefore, prohibiting the~ licensee from withdrawing a certification of permanent cessation of operations that had been submitted under in asoor-danse will=l § 50.82(a)(1 )(i) would not address a new safety or security issue that is not currently and adequately covered by the existing regulations.

Decommissioning Funding The petitioners asserted stated that a facility in an extended shutdown may eventually resume operation or enter decommissioning. The petitioners requested that the amended regulations clearly address whether decommissioning funding may be used for activities during a facility's extended shutdown and, if.-seinclude, the criteria and conditions governing their use~ of desommissioning fimding sl:io1,1ld 98 insl1,1ded in tt:ie amended reglllations .

The regulations lJM8f 1n_§ 50.82(a)(8)(ii) limit the use of decommissioning trust funds by licensees prior to the submittal of the certifications required under§ 50.82/a)/1) of permanent cessation of operations and permanent removal of fuel from the reactor vessel. These limitations allow the use of only a specified portion of the funds for decommissioning planning and would apply do not allow desommissioAing trust fllAds to 98 1Jsed for any astivities (exsept desommissioAiAg planning) wt:iile ll=le lisensee t:ias aA operating lisense insl1Jding during an extended shutdown as well as during operation .

In addition, the licensee in extended shutdown is not relieved of any existing decommissioning trust fund regulations that are applicable to any facility with an operating license.

27

The petitioners also requested that the amended regulations require licensees to submit a preliminary decommissioning cost estimate to the NRC at 5-year intervals throughout the period of extended shutdown . Ttle petitieR8F6 alse and inquired whether the decommissioning funding amounts required by§ 50.75(c) should be re-assessed during an extended shutdown.

Th !'Regulations under§§ 50.75(f)(1) and (f)(2) require licensees to report at least once every 2 years on the status of its decommissioning funding and related factors. In addition to these requirements for biennial reports, § 50. 75(f)(3) requires that each power reactor licensee shall, at or about 5 years prior to the projected permaReRt GessatieR efend operations, 3 submit a preliminary decommissioning cost estimate, that WRi6R includes an up-to-date assessment of the major factors that could affect the cost to decommission. TheAn extended shutdown would haves no effect on the license expiration date, and all applicable decommissioning funding regulations remain in effect, including § 50.75.

Therefore, prohibiting withdrawal of a certification of permanent cessation of operations under§ 50.82(a)( 1)(i) or te requiril:!9.e additional re-a668668ssessmentiRg of decomm issioning funding during an extended shutdown would not address a new safety or security issue that is not currently and adequately covered by the existing regulations.

IV. Availability of Documents The documents identified in the following table are available to interested persons through one or more of the methods, as indicated.

• The *permaA&At 6&Hati8A end of operations* in this context refers to when a licensee is no longer authorized to operate the reactor or place or retain fuel in!Q the reactor vessel, J181Ynder § 50.82(aX2).

28

ADAMS ACCESSION NO. /

DOCUMENT FEDERAL REGISTER CITATION Request for Petition for Rulemaking (PRM-50-114), dated ML16258A486 September 1, 2016.

Federal Register notice, "Power Reactors in Extended 81 FR 89011 Shutdowns," dated December 9, 2016.

Comment Submission 1: Rodney McCullum of Nuclear Energy ML17055B792 Institute (NEI), dated February 22, 2017.

Comment Submission 2: Paul Bessette of Morgan , Lewis & ML170559953 Bockius, LLP (on behalf of Entergy Nuclear Operations, Inc.),

dated February 23, 2017.

IMC 0350, "Oversight of Reactor Facilities in a Shutdown Cond ition ML17116A273 Due to Significant Performance and/or Operational Concerns,"

dated March 1, 2018.

IMC 0375, "Implementation of the Reactor Oversight Process at ML15247A274 Reactor Facilities in an Extended Shutdown Condition for Reasons Other Than Performance," dated November 13, 2015.

MUREG/BR 0§21, "OesemmissieRiRg N11Glear Pewer PlaRts," Mb14210A472 Elates ,ti.11g11st 2014.

~JIJREG 1700, Re*,<isieR 1, "StaRElarEl Re>,<iew PlaR klr E 1~al11atiRg MbQ312703Q1 N11slear Pewer ReaGter biceRse TermiRatieR PlaRs," Elates Af')ril

~

Reg11latery Gllise (RG) 1.184 , Re>,<isieR 1, "OecemmissieRiRg ef Mb13144A840 N11slear Pewer Reasters ," Elates Gctelaler 2013.

29

RG 1.179, Re*,isieA 1, "StaAElaFEl i;:eFmat aAEl GeAteAt ef biseAse Mb1H)4QQ41Q

+eFFAiAatieA 121aAs feF ~hlsleaF 12eweF ReasteFS,* Elates J1rne 2Q11 .

Letter from Mr. David A. Kraft of Nuclear Energy Information ML16175A449 Service, dated June 16, 2016.

NRC Letter to Mr. David A. Kraft of Nuclear Energy Information ML16218A266 Service, dated August 4, 2016.

i;:iFsteAeFgy Sel11tieAs GeFp. betteF, ~l\litlulFawal ef GeFtifisalieA ef Mb 1QW7/l,QQ7 PeFFAaAeAt GessatieA ef 12eweF GperatieAs feF CaYis Besse N11sleaF PeweF StatieA. Unit Ne. 1, and Pell)' N11sleaF PeweF Plant, UAil Ne. 1," sates J11ly 2e, 2Q1Q.

Craft Fegulatef}' issue summaf}', "CispesitieA ef IAfeFmatieA 81 fR 3Q571 Relates te Ille +ime 12eFiee tllal Safety Related Stl\lst11Fes, Systems, eF GempeAeAts aFe IAstallee," Elates May 17, 2Q1e.

The NRC may post materials related to this document, including public comments, on the Federal Rulemaking Web site at http://www.regulations.gov under Docket ID NRC-2016-0204. The Federal Rulemaking Web site allows you to receive alerts when changes or additions occur in a docket folder. To subscribe: 1) navigate to the docket folder (NRC-2016-0204); 2) click the "Sign up for E-mail Alerts" link; and 3) enter your e-mail address and select how frequently you would like to receive e-mails (daily, weekly, or monthly).

V. Conclusion For the reasons cited in this document, the NRC is denying PRM-50-114. The NRC has concluded that the issues raised by the petitioners are adequately addressed 30

by existing NRC regulations, procedures, and guidance, and no amendments to the NRC's regulations are necessary.

Dated at Rockville, Maryland, this day of , 2020.W.

For the Nuclear Regulatory Commission.

Annette L. Vietti-Cook, Secretary of the Commission.

31

UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON , D.C. 20555-0001 AXC comments Edwin Lyman (on behalf of David A. bochbaum)

Union of Concerned Scientists 1825 K Street, NW, Suite 800 Washington, DC 20006-1232

Dear DMr. Lyman:

I am responding to David Lochbaum's petition for rulemaking {PRM) dated September 1, 2016, submitted on behalf of the Union of Concerned Scientists and two co-petitioners, Greenpeace and National Resources Defense Council {Agencywide Documents Access and Management System Accession No. ML16258A486). The U.S. Nuclear Regulatory Commission {NRC) docketed the petition as PRM-50-114. The petition requested the NRC amend its regulations in Title 10 of the Code of Federal Regulations (10 CFR) Part 50, "Domestic Licensing of Production and Utilization Facilities," to "prom ulgate regulations applicable to nuclear power reactors with operating licenses issued by the NRC but in an extended outage."

The NRC published a notice of docketing for PRM-50-114 in the Federal Register on December 9, 2016 (81 FR 89011 ). The staff received two public comment submissions during the 75-day public comment period; both submissions were in favor of denying the petition and provided a basis for that conclusion.

The NRC is denying PRM-50-114 because it has been determined that the issues raised by the petitioners are adequately addressed by existing NRC regulations, procedures, and guidance, and therefore, no amendments to the NRC's regulations are necessary. The enclosed notice, which will be published in the Federal Register, explains the reasons for the denial. Upon publication of the enclosed notice, the NRC will close the docket for PRM-50-114.

You may direct any questions about this matter to Dennis Andrukat by calling 301 -415-3561 or sending an e-mail to Dennis.Andrukat@nrc.gov.

Sincerely, Annette L. Vietti-Cook Secretary of the Commission

Enclosure:

Federal Register notice

POLICY ISSUE NOTATION VOTE RESPONSE SHEET TO: Annette L. Vietti-Cook, Secretary FROM: Commissioner Wright

SUBJECT:

SECY-19-0121: Denial of Petition for Rulemaking on Power Reactors in Extended Shutdown (PRM 114; NRC-2016-0204)

Approved X Disapproved

- - Abstain - - Not Participating COMMENTS: Below X Attached X None I appreciate the staffs thorough review of each of the petitioner's questions and concerns. I approve the staffs recommendation to deny PRM-50-114. I also approve publication of the draft Federal Register notice and issuance of the draft letter, subject to the attached edits, Entered in STARS Yes V

, ~ca. ~~

SIGNATURE No- - -

DATE

"' r/2/f I/ ,,02,0

[7590-01-P]

DAW Edits NUCLEAR REGULATORY COMMISSION 10 CFR Part 50

[Docket No. PRM-50-114; NRC-2016-0204]

Power Reactors in Extended Shutdowns AGENCY: Nuclear Regulatory Commission.

ACTION: Petition for rulemaking; denial.

SUMMARY

The U.S. Nuclear Regulatory Commission (NRC) is denying a petition for rulemaking dated September 1, 2016, submitted by Mr. David Lochbaum on behalf of the Union of Concerned Scientists and two co-petitioners (the petitioners). The petition was docketed by the NRC on September 14, 2016, and was assigned Docket No. PRM-50-114. The petitioners requested that the NRC amend its regulations to "promulgate regulations applicable to nuclear power reactors with operating licenses issued by the NRC but in an extended outage. " The NRC is denying the petition because the NRC already has regulatory processes in place to address the issues identified in the petition.

DATES: The docket for the petition for rulemaking, PRM-50-114, is closed on [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER].

ADDRESSES: Please refer to Docket ID NRC-2016-0204, when contacting the NRC about the availability of information regarding this petition. You may obtain publicly-available information related to this petition by any of the following methods:

• Federal Rulemaking Web Site: Go to https://www.regulations .gov and search for Docket ID NRC-2016-0204. Address questions about NRC dockets to Carol Gallagher; telephone: 30 1-415-3463; e-mail: Carol.Gallagher@nrc.gov. For technical questions, contact the individual listed in the FOR FURTHER INFORMATION CONTACT section of this document.

• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select Begin Web-based ADAMS Search. For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by e-mail to pdr.resource@nrc.gov. For the convenience of the reader, instructions about obtaining materials referenced in this document are provided in the "Availability of Documents" section.

• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room 01-F21 , One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.

FOR FURTHER INFORMATION CONTACT: Dennis Andrukat, Office of Nuclear Material Safety and Safeguards, telephone: 301-415-3561 ; e-mail:

Dennis.Andrukat@nrc.gov; U.S. Nuclear Regulatory Commission, Washington DC 20555-0001 .

2

SUPPLEMENTARY INFORMATION:

TABLE OF CONTENTS:

I. The Petition II. Public Comments on the Petition Ill. Reasons for Denial IV. Availability of Documents V. Conclusion I. The Petition Section 2.802 of title 10 of the Code of Federal Regulations (10 CFR), "Petition for rulemaking-requirements for filing, " provides an opportunity for any interested person to petition the Commission to issue, amend, or rescind any regulation. On September 1, 2016, Mr. David Lochbaum, on behalf of the Union of Concerned Scientists and two co-petitioners (petitioners), submitted a petition for rulemaking (PRM) to the NRC. The NRC docketed this petition and assigned it Docket No. PRM-50-114.

The petitioners requested that the NRC amend 10 CFR part 50, "Domestic Licensing of Production and Utilization Facilities," to "promulgate regulations applicable to nuclear power reactors with operating licenses issued by the NRC but in an extended outage. "

The petitioners described a scenario in which an operating commercial nuclear power plant (facility) could voluntarily be in an extended shutdown with no immediate plans to decommission. The petitioners stated that there are no regulations to prevent a licensee from changing its decision to cease operations by retracting its certification to do so, and that the current regulations were developed for operating reactor facilities and for reactor facilities in decommissioning, not for facilities "in limbo that will at some unspecified later date return to the operating reactor world or join the decommissioning community." The petitioners asserted that the current regulations are not intended, as 3

written, for an operating facility in an "extended shutdown.:_1~ The petitioners also stated that a licensee can place the facility in an extended shutdown without the NRC's review and approval, or public participation. The petitioners speculated that in the current economic climate, licensees may choose to place a facility in an extended shutdown until the marketplace becomes more favorable or the decision to proceed with decommissioning is made. The petitioners cited the Browns Ferry Nuclear Plant Unit 1 as an example of a facility i_ n an extended shutdown. In 1985, Tennessee Valley Authority (TVA) voluntarily shut down Unit 1 and did not restart it until 2007. Ultimately, the petitioners asserted that the current regulatory framework does not manage the risk of a facility in an extended shutdown that a licensee may someday seek to restart.

The NRC identified four main issues in the petition, as follows:

1) Define "extended shutdown" for power reactors.

2) Establish requirements during an extended shutdown period, including the petitioners' proposed "Reactor Extended Shutdown Activities Report" (RESAR).

3) Establish requirements to exit and restart from an extended shutdown.

4) Conduct a decommissioning funding review(s) during an extended shutdown and establish requirements to prevent the retraction of any letter of permanent cessation of operations certification .

II. Public Comments on the Petition The NRC published a notice of docketing and request for comment in the Federal Register on December 9, 2016. The NRC also sought public comment on six specific questions. The public comment period closed on February 22, 2017. The NRC received 1 The petition describes an "extended shutdown" as either an operating reactor that has been shut down for 2 years or more and is not actively pursuing restart under a formal NRC process or a when a licensee has voluntarily notified the NRC of its intent to place the facility in an "extended shutdown" condition .

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two public comment submissions during the 75-day public comment period; both submissions, which were from industry representatives, were in favor of denying the petition and provided a basis for that position. The two comment submissions, from the Nuclear Energy Institute (NEI) and Entergy Nuclear Operations, Inc. (Entergy), raised five comments in total. Only NEI addressed the specific questions that were included in the Federal Register notice that requested public comments. The ADAMS Accession Nos. for the comment submissions can be found in the "Availability of Documents" section of this document.

Public Comments:

The NRC has considered the public comments received on the petition for rulemaking. The NRC response follows a short summary of each comment submission.

Comment Submission 1:

NEI recommended that the NRC deny the petition because the petition has not demonstrated that the existing regulations require rulemaking based on the criteria in

§ 2.802(c)(1 )(iii). The commenter stated that PRM-50-114 should be denied because:

(Comment 1) "the petition incorrectly asserts that the Commission's existing regulations are inadequate as applied to operating reactors that have entered an extended shutdown," (Comment 2) "the petition provides no basis for requesting that the NRC establish new requirements that must be satisfied for a reactor to restart after an extended shutdown ," and (Comment 3) "the petition provides no basis for suggesting that the NRC should explicitly prohibit withdrawal of the certification of the permanent cessation of operations submitted pursuant to§ 50.82(a)( 1)(i)." The commenter noted that a facility in extended shutdown must continue to comply with its operating license 5

and NRC regulations applicable to operating nuclear power plants. This fact contrasts with the petitioners' assertions that the Commission's existing regulations are inadequate as applied to operating reactors that have entered into an extended shutdown. The commenter noted that a licensee may still meet all applicable safety and security requirements even if it defers to a generic communication action during an extended shutdown scenario. This is because generic communications do not impose new or changed regulatory requirements on licensees.

The commenter further noted that the petition does not provide a basis to change the regulations to require licensees to submit preliminary decommissioning cost estimates every 5 years during an extended shutdown. Once a licensee permanently ceases operations, then the licensee would be required to submit site-specific cost estimates as required under § 50.82, "Termination of license." The commenter acknowledged that tfte-current regulations already require 10 CFR part 50 licensees to report decommissioning funding status every 2 years. The commenter continued that

... many NRC regulations applicable to operating nuclear power plants continue to apply even after a nuclear power reactor has permanently ceased operation and defueled. This includes several regulations that seem to be of specific concern to the petitioners (e.g. , emergency planning and physical security).

The commenter asserted that the petitioners provide no basis for requesting that the NRC establish new requirements that must be satisfied for a reactor to restart after an extended shutdown.

In response to the petitioners' requested new regulations for reactors that are in an extended shutdown and not actively pursuing restart to be evaluated under a formal process such as Inspection Manual Chapter (IMC) 0350, "Oversight of Reactor Facilities in a Shutdown Condition Due to Significant Performance and/or Operational Concerns,"

the commenter noted that existing NRC procedures in IMC 0375, "Implementation of the 6

Reactor Oversight Process at Reactor Facilities in an Extended Shutdown Condition for Reasons Other Than Performance," would achieve the petitioners' objective. As noted by the commenter, IMC 0375 is the NRC's inspection guidance for implementation of the reactor oversight process for plants in an extended shutdown condition for reasons not related to performance. The commenter points out that IMC 0375 ensures that the NRC "communicates unified and consistent oversight in a clear and predictable manner to the licensee, the public, and other stakeholders" and also ensures the documentation of the required regulatory and licensee actions taken; the resolved technical issues leading to approval for restart, if required; and the eventual return of the plant to the routine reactor oversight process. The commenter asserted that IMC 0375 will provide assurance that the plant will be operated in a manner that provides adequate protection of public health and safety following restart. The commenter stated that "the NRC oversight requested in the petition already exists" under the reactor oversight process. The commenter further stated that the resulting regulations sought in this petition would not result in significant improvements to reactor safety or security and would not improve regulatory efficiency.

NRC Response: The NRC generally agrees with the comments that were relayed in Comment Submission 1. Specifically, the NRC agrees that the Commission's existing regulations and guidance documents adequately address facilities that enter any potential extended shutdown period .

Comment Submission 2:

Entergy recommended that the NRC deny the petition. The commenter endorsed (Comment 4) the comments provided in NEl's letter. In addition, the commenter stated that (Comment 5) making a§ 50.82(a)(1 )(i) certification irrevocable is directly contrary to the assumptions and conditions of a recent settlement agreement 7

entered into by Entergy, the State of New York (among other related New York governmental entities), and Riverkeeper, Inc. regarding the continued operation of Indian Point Units 2 and 3. The commenter noted that making a § 50.82(a)(1 )(i) certification irrevocable would nullify key terms of this important agreement.

NRC Response: With respect to Entergy's adoption endorsement of the NEI comments as reflected in Comment Submission 1, the NRC's response is provided in response to Comment Submission 1. With respect to Entergy's Comment 5, the issue raised is outside the scope of the PRM.

Specific Questions:

The NRC has considered the responses received to the specific questions. Only NEI provided responses to the six specific questions on which the NRC sought comment. A summary of the responses provided in NE l's submission follows.

Question 1: The petition outlines a scenario where a reactor is in an extended shutdown condition due to economic or other reasons and would at some unspecified later date return to operation. The petition uses the Browns Ferry Nuclear Plant as an example, where the Tennessee Valley Authority voluntarily shut down one unit from 1985 to 2007. Are there any facilities or licensees who may be likely to use the petitioners' extended shutdown scenario in the future? Please provide technical ,

scientific, or other data or information demonstrating the basis for your position .

Comment: The commenter responded that it is not aware of a commercial power reactor likely to use the extended shutdown scenario. The commenter clarified that a licensee is not prohibited from entering into an extended shutdown voluntarily and references the letter from David A. Kraft of Nuclear Energy Information Service dated 8

June 16, 2016.

NRC's Response: The NRG agrees with the comment and notes the NRG's August 4, 2016 response to the David A. Kraft letter states that the NRG regulations do not prohibit a licensee from voluntarily placing its facilities in an extended shutdown, while continuing to meet all safety and security requirements as outlined in the facility's operating license, without terminating the operating license.

Question 2: The petitioners contend that the NRG's existing regulations were promulgated for operating reactors, and that specific regulations are needed to address non-operating reactors in an "extended shutdown. " Assuming the extended shutdown scenario is credible, in what specific ways are the existing regulations identified in the PRM [petition for rulemaking] insufficient to address the scenario described by the petitioners? Please provide technical , scientific, or other data or information demonstrating the basis for your position.

Comment: The commenter responded that the regulations are sufficient to address the extended shutdown scenario and therefore no changes to the NRG's regulations are necessary to ensure adequate protection of public health and safety or security.

NRC's Response: The NRG agrees with the comment.

Question 3: Assuming that the existing regulations identified in the PRM are insufficient to address the extended shutdown scenario, what specific changes to those regulations are needed to facilitate the requested rulemaking? Please provide technical, scientific, or other data or information demonstrating the basis for your position.

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Comment: The commenter responded that the regulations are sufficient to address the extended shutdown scenario, and therefore no changes to the NRC's regulations are necessary to ensure adequate protection of public health and safety or security.

NRC's Response: The NRC agrees with the comment.

Question 4: The petition describes a plant in an "extended shutdown," and proposes two criteria to enter into this non-operating state (submission of§ 50.82(a)(1)(i) and

§ 50.4(b)(8) notifications; and a shutdown period of 2 years). Should the term "extended shutdown" be defined in§ 50.2, " Definitions," and should the regulations specify the timeframe for this scenario? Please provide technical, scientific, or other data or information demonstrating the basis for your position.

Comment: The commenter responded that "extended shutdown" does not require a definition in the federal regulations because the regulations are sufficient to address the extended shutdown scenario.

NRC's Response: The NRC agrees with the comment.

Question 5: Given the NRC's long-standing, well-understood Reactor Oversight Program, what potential changes would need to be considered to ensure adequate oversight of a reactor during an extended shutdown? Please provide technical, scientific, or other data or information demonstrating the basis for your position.

Comment: The commenter responded that the regulations are sufficient to address the extended shutdown scenario, and therefore no changes to the NRC's regulations are necessary to ensure adequate protection of public health and safety or security.

NRC's Response: The NRC agrees with the comment.

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Question 6: What additional reporting to the NRC should be required for a reactor in an extended shutdown, and with what level of detail and frequency (e.g., the potential changes to the submission of the decommissioning trust fund reports)? Please provide technical, scientific, or other data or information demonstrating the basis for your position.

Comment: The commenter responded that the regulations are sufficient to address the extended shutdown scenario, and therefore no changes to the NRC's regulations are necessary to ensure adequate protection of public health and safety or security. The commenter does not agree that additional reporting requirements are warranted because the petitioners have not "demonstrated the need for any changes to the reporting requirements applicable to a reactor," in an extended shutdown. The commenter adds that both a facility that is actively operating and a facility that is in an extended shutdown would be restricted to using only 3 percent of the decommissioning trust funds for pre-planning activities, consistent with the regulations in§ 50.82.

NRC's Response: The NRC agrees with the comment.

Ill. Reasons for Denial The NRC is denying the petition because the petitioners did not present any significant AeW-information or arguments that would support the requested changes for extended shutdown conditions . Furthermore, the NRC has determined thatthe issues raised by the petitioners are adequately addressed by existing NRC regulations, procedures, and guidance, and no amendments to the NRC's regulations are necessary.

A discussion of the existing regulatory framework follows.

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Issue No. 1: Define "extended shutdown" for power reactors The NRC is denying Issue No. 1 because there is no need to define "extended shutdown" in the regulations. The holder of an operating license is required to maintain the facility and all of its security and operational programs in accordance with the conditions of its operating license. This remains true whether the facility is operating or shut down for any period of time, including extended shutdowns. As discussed further under Issue Nos. 2, 3, and 4, the licensee must maintain programs in. effect to ensure the continued safety and security of the facility regardless of the mode of operation.

Therefore, the issues raised by the petitioners associated with what could be defined as an extended shutdown are currently and adequately covered by the existing regulations and NRC processes.

Issue No. 2: Establish requirements during an extended shutdown period, including the petitioners' proposed "Reactor Extended Shutdown Activities Report" (RESAR)

The NRC is denying Issue No. 2 because there is no need to require the licensee to submit a RESAR prior to entering an extended shutdown condition. This proposed report, as raised by the petitioners, would be similar to the post-shutdown decommissioning activities report tAe-requireg_ments in  ::QY..§ 50.82(a}(4}(i) for the post shutdown decommissioning activities report and would describe how certain _activities are handled during an extended shutdown. The petitioners included items that should be included in the proposed report. Those items are listed below followed by the staff's evaluation of each item:

Operator License Aging Management 12

Technical Specifications In-service Inspections (and In-service Testing)

Quality Assurance Irradiated Fuel Protection Fitness for Duty Operator License An operator's license is not automatically terminated based solely on an extended plant shutdown. In accordance with§ 55.55, "Expiration, " an operator's license expires aftef.-6 years after the date of issuance, upon termination of employment, or upon determination by the facility licensee that the license is no longer needed. An operator's license can be renewed if the requirements of § 55.57, "Renewal of licenses," are met. Whether the facility is operating or is in extended shutdown, licensed operators and senior operators, as defined in§ 55.4, "Definitions," are required to successfully complete requalification requirements established by§ 55.59, "Requalification, " to maintain their licenses.

Further, licensed operators and senior operators are required to meet proficiency requirements established by § 55.53( e) to maintain an active status. Active status under

§ 55.53(e) is maintained by performing the functions of an operator or a senior operator, as defined in the facility's technical specifications, for a specified number of shifts per calendar quarter. For an operator or senior operator who does not meet the§ 55.53(e) requirements resulting in an in-active status on his or her license, the requirements of

§ 55.53(f) apply to ensure proficiency before an operator can legally perform licensed duties. To maintain or restore active status on an operator's license, the facility would need to remain in a mode of operation that requires operators to actively perform the functions of an operator or senior operator, as defined by § 55.4. However, if the facility 13

is in a mode of operation that does not allow for licensed duties to be performed, this may result in a licensed operator(s) becoming in-active. The licensee may find it acceptable to have a reduced number of licensed operators during an extended shutdown. Before restarting , however (as discussed later in this section stated later under Issue No. 3), the licensee would be required need to have the required number of licensed operators in place per its licensing basis and the existing 10 CFR part 55 requirements.

Aging Management A licensee with a facility in an extended shutdown must still perform the activities specified in its NRG-reviewed aging management programs, if its current licensing basis includes such programs. Any adjustments to aging management programs are considered changes to the facility's licensing basis and are controlled through current regulations under§ 50.59, "Changes, tests, and experiments. "

The scope of aging management activities does not change during an extended shutdown. Current regulations in 10 CFR part 54 establish the scope of aging management programs that are only for passive components, based on whether they perform a prescribed intended function "without moving parts or without a change in configuration or properties." The determination of whether a component is classified as either passive or active is not based on frequency of either operation or surveillance testing. The assurance of proper function for active components during an extended shutdown would not fall within established aging management activities. Active components are included in the surveillance requirements that are part of the technical specifications in the license, as well as inservice testing programs required by regulation.

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Technical Specifications Under§ 50.36, Technical Specifications," a licensed facility under part 50 or part 52 is required to have technical specifications, which will include safety limits and limiting safety settings necessary to reasonably protect the integrity of safety systems. A facility's technical specifications are a part of its operating license. These technical specifications also include surveillance requirements, as described in § 50.36(a)(3), that are requirements relating to test calibration or inspection to assure that the necessary quality of systems and components is maintained and that the limiting conditions for operation will be met. A nonoomplianoe 'Nith technioal specifications is a nonoompliance with a faoility's operating lioense requiFements and subject to enforcement aotion.

The usage rules contained in technical specifications are structured in suoh a manner as to provide reasonable assurance of continued adequate protection of public health and safety regardless of the amount of time a facility has been shut down. The requirements for performing and meeting the surveillance requirements in technical specifications are independent of the amount of time a facility has been shut down.

Rather, requirements for performing surveillances and meeting surveillance requirements are dependent on the faoility mode the facility is in, as defined by technical specifications, or on other specified conditions in the applicability of a limiting condition for operation.

Before a licensee changes the mode a facility is in entering a new mode (e.g.,

rest!2rtingfrom cold shutdown to hot shutdown), the facility must demonstrate operability.

Therefore, any requiFed structures, systems, and components required for safe operation of the facility in the new mode must be operable, and the applicable surveillance requirements met, as defined in the facility's technical specifications, before transition can occur. No additional "lay-up" program or testing/inspection is required.

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The usage rules of technical specifications are independent of the amount of time a facility has been in a shutdown condition and a noncompliance with the usage rules is a noncompliance with the operating license requirements subject to enforcement action.

Therefore, the NRC does not agree that a regulation is needed to require a licensee to explain whether testing and inspections per the technical specifications will be continued during an extended shutdown period.

The technical specifications set out different requirements for different modes of operation. The NRC agrees that fewer requirements within the technical specifications are applicable when a reactor is in cold shutdown, refueling or defueled. However, the technical specifications still provide reasonable assurance of adequate protection of public health and safety. The reason that fewer requirements within the technical specifications apply in cold shutdown, refueling, or defueled conditions is that there are fewer credible scenarios that could impact public health and safety when plants are in any mode where the reactor is shut down or defueledthose conditions. Nonetheless, the licensee must evaluate the impact of degradation of required structures, systems, and components on the operability of those structures, systems, and components. If a licensee determines that a required system is inoperable, then the licensee must comply with the required actions in the technical specifications. Furthermore, the design featu res of the technical specifications apply at all times, regardless of mode or time since shutdown. The design features, for example, typically contain requirements for fuel storage that, if altered or not met, would could have a significant impact on safety.

lnservice Inspection [and lnservice Testing]

In accordance 1.t1ith Under § 50.SSa(g),Section XI of the American Society of Mechanical Engineers (ASME) Boiler and Pressure Vessel Code provides the 16

requirements for inservice inspection of nuclear power plants.Section XI requires examinations to be scheduled in 10-year inspection intervals.Section XI has provisions that allow a licensee to shorten or lengthen inspection intervals to be shortened or lengthened to conform to a facility's outage schedule .Section XI , IWA-2430(d) provides allowances for extended outages. It states.. in part, that:

...for plants that are out of service continuously for 6 months or more, the inspection interval during which the outage occurred may be extended for a period equivalent to the outage and the original pattern of intervals extended accordingly for successive intervals.

In accordance withUnder § 50.55a(f), the ASME Operation and Maintenance of Nuclear Power Plants (OM Code) provides requirements for inservice testing of pumps and valves in nuclear power facilities. The OM Code requires testing to be scheduled periodically within the 10-year inservice testing program intervals. Licensees may extend +!he 10-year inservice testing program intervals may be extended for plants with extended outages, as discussed above for inservice inspection. Under the OM Code, licensees for Fer-plants that are continuously out-of-service, are not required to follow per the OM Code, the test schedule for pumps and valves need not be followed, and thus subsequent..--Ne relief requests are not required. However, the OM Code does require that Wwithin 3 months before the plant is placed in operation , per the OM Code, the pumps must be tested , and the valves must be exercised.

Additionally, Section 06.02 of IMC 0375 directs inspectors to verify that the licensee has considered the latest vendor bulletins and other important information related to safety-related equipment, consistent with licensee procedures.

Quality Assurance 17

There is no spooifio relaxation of any of the requirements of appendix B, "Quality Assurance Criteria for Nuclear Power Plants and Fuel Reprocessing Plants," to 10 CFR part 50 (appendix B) for an operating facility that is in an extended outage.

Appendix B establishes quality assurance requirements for the design, manufacture, construction, and operation of certain structures, systems, and components. The pertinent requirements of this appendix apply to all licensee activities affecting the safety-related functions of these structures, systems, and components, regardless of whether the facility is producing power or in a shutdown condition. Such activities include designing , purchasing , fabricating , handling, shipping , storing, cleaning , erecting, installing, inspecting , testing , operating, maintaining, repairing , refueling, and modifying these structures, systems, and components. Criterion II , "Quality Assurance Program,"

of appendix B, requires that the quality assurance program, be documented by written policies, procedures, or instructions and be carried out throughout the life of the facility.

Thus, appendix B requires compliance with the applicable portions of the regulations for covered activities regardless of whether or how long the facility has been in a shutdown period. Licensed operators and other licensee staff would still be required to be trained to perform activities affecting quality; to follow written procedures or instructions (where applicable); and to document, evaluate, and resolve issues through the implementation of the non-conformance and corrective action programs. In addition, oritorion Criterion XVIII , "Audits," of appendix B, requires licensee staff to continue to evaluate programs and processes through periodic auditing throughout the life of the facility and is applicable to facilities regard less of whether or how long a facility has been in a shutdown condition .

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Irradiated Fue/2 The petitioners requested that the NRC require licensees to develop and submit a RESAR that includes a discussion of how the facility will ensure that any irradiated fuel will be protected and not be damaged, during an extended shutdown period , that any irradiated fuel will be protested and not be damaged. In addition, the petitioners requested that the RESAR describe how the public and facility personnel will be protected, should irradiated fuel become damaged. The NRC determined that the existing regulations, guidance, and processes already discussed in this notice would prevent and mitigate such damage from a design and safety standpoint. The NRC also reviewed other existing regulatory requirements not specifically mentioned by the petitioners. Specifically, the NRC considered emergency planning requirements and security requirements (the design basis threat) in making this conclusion.

Irradiated Fuel: Emergency Planning Under§ 50.54, "Conditions of licenses," ~ mergency planning regulations and required licensee emergency plans already exist to protect workers and the public from damaged irradiated fuel-f}Sf.a. § 50.54, "Conditions of licenses," to include when the facility is in an extended shutdown. Specifically, § 50.54(q)(2) requires that the licensee follow and maintain the effectiveness ofan emergency plan that meets the requirements in appendix E to part 50 and, for a nuclear power reactor facility, the planning standards of§ 50.47(b). In assordanse *.vithUnder § 50.47(b)(14), a licensee must conduct periodic exercises to evaluate major portions of emergency response capabilities, while periodic 2

As part of its review of the petition, the NRC reviewed other existing regulatory requirements. While not specifically mentioned by the petitioners, a discussion of emergency planning requirements and security design basis threats is included in this notice, as both topics relate to protecting the public and plant personnel, should irradiated fuel become damaged.

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drills are conducted to develop and maintain key skills. Any deficiencies identified as a result of exercises or drills must be corrected .

Irradiated Fuel: Design Basis Threat Existing regulations in 10 CFR part 73, "Physical Protection of Plants and Materials," require security protection when irradiated fuel is onsite and stored inside the protected area, regardless of the reactor's operational mode, or conditions, including an extended shutdown condition.

Pursuant toUnder § 73.55, 73.1 (b)(1 )(i) licensees who are authorized to operate a nuclear power reactor under § 50.57, as well as holders of a combined license under 10 CFR part 50 or 52 (after the Commission has made the finding under§ 52.103(g)).,,

must comply with the requirements of§ 73.55. These requirements includeprovide a security plan and the associated protective strategy with defined design basis threats, as described in §§ 73.1 and 73.2, to protect against acts of radiological sabotage and the associated protective strategy. The security plan includes a physical security plan, a training and qualification plan, a safeguards contingency plan, and a cyber security plan.

The specific design basis threat is safeguards information , which is protected under

§ 73.21 and is withheld from public access pursuant to the requirements of§ 9.17.

Along with the security plan, § 73.55(k)(8) requires the licensee to establish and implement a protective strategy when irradiated fuel is onsite and stored in the protected area, regardless of the reactor's operational modes, or conditions.

Fitness for Duty Existing regulations in 10 CFR part 26, "Fitness for Duty Programs," require that all persons who are granted unescorted access to nuclear power reactor protected areas 20

by the licensees be subject to a fitness-for-duty program . Pursuant toUnder § 26.3(a},

licensees who are authorized to operate a nuclear power reactor facility under § 50.57, as well as holders of a oombined license under 10 CFR part 50 or 52 (after the Commission has made the finding under§ 52 .103(9)) must comply with the requ irements of 10 CFR part 26, except for subpart K, "FFD Program for Construction ."

The fitness-for-duty program performance objectives required under § 26.23 provide reasonable assurance of an individual's ability to safely and competently perform his or her duty commensurate with maintaining public health and safety. These requirements apply regardless of the reactor's operational modes, or conditions, and include drug and alcohol testing , behavioral observation, and determinations of fitness.

Therefore, staff has determined that Issue No. 2, to require a licensee to develop and submit a RESAR, whether prior to or during an extended shutdown , is not necessary because the issues raised by the petitioners are currently and adequately covered by the existing regulations.

Issue No. 3: Establish requirements to exit and restart from extended shutdown The NRC is denying Issue No. 3 because there is no need to amend the regulations to establish criteria for exiting an extended shutdown . The staff determined that existing reactor oversight process guidance provides for appropriate NRC oversight of a plant in an extended shutdown condition. Oversight of reactor facilities in extended shutdown for reasons not related to performance is governed by IMC 0375. One of the purposes of IMC 0375 is to provide assurance that the facility will be operated in a manner that provides adequate protection of public health and safety following restart.

Section 06.02 of IMC 0375 discusses the inspection plan and indicates that a focus on operational readiness of the licensee for reactor restart may be necessary. NRC 21

decision making regarding plants restarting after extended shutdowns assess operations readiness. Additional guidance for conducting operational readiness assessment inspections is provided in Inspection Procedure 93806, Operational Readiness Assessment Team Inspections, which includes a focus on identifying potential areas of weakness important to plant operations. Aspects that may be considered as potential areas for additional NRC inspection include equipment upgrades and maintenance, procedure updates, facilities maintenance, and the status of the corrective action program. In addition , a facility cannot restart without active licensed operators per

§ 55.53 and as described previously under Issue No. 2.

Moreover, before a licensee changes the mode a facility is in (e.g., from cold shutdown to hot shutdown), the facility must demonstrate operability. Therefore, any structures, systems, and components required for safe operation of the facility in the new mode must be operable and the applicable surveillance requirements met, as defined in the facility's technical specifications, before transition can occur.In addition, before entering a higher mode (e.g., restarting and inoroasing power) tho lioonsoo must ensure operability of tho required equipment and pass tho required survoillanoos for tho next higher mode prior to entry.

David Kraft of the Nuclear Energy Information Service raised many of the same issues in a letter to the agency dated June 16, 2016. By letter dated August 4, 2016, John Giessner from the Division of Nuclear Materials Safety in NRC Region Ill responded to Mr. Kraft. In this response letter, referenced by the petitioners as "the Giessner letter," the NRC staff answered questions about the requirements for power reactor decommissioning and extended shutdown. As discussed rooognized in the NRC's August 4, 2016 response letter, the-NRC regulations do not prohibit a licensee from voluntarily entering the extended shutdown configuration described in the petition 22

and refers to IMC 0375, which provides for NRC oversight of a facility exiting from extended shutdown. If a licensee places a facility in extended shutdown and decides to restart, the NRC has determined that the agenoy has sufficient regulations, processes, and procedures in place to ensure that the restart is conducted in a safe manner.

The example cited by the petitioners was the extended shutdown of Browns Ferry Nuclear Plant, Unit 1, which was shut down from March 1985 to June 2007, after operating for 10 years. During the twenty two22 year shutdown, the NRC continued to provide oversight via multiple resident inspectors assigned to the Browns Ferry Nuclear Plants. Further, NRC staff from regional and headquarters offices routinely visited the Browns Ferry Nuclear Plant for oversight of the operating Unit 2 and 3 reactors. As part of the reactor oversight process, the NRC developed an inspection procedure to monitor the restart effort to ensure that the plant was able to restart and operate in a safe manner. This procedure eventually became IMC 0375. The NRC was able to useused existing regulatory tools (e.g., inspectors, inspection procedures, enforcement of the operating license) during the Browns Ferry Nuclear Plant, Unit 1, startup in 2007. As evidenced by the startup of Browns Ferry Nuclear Plant, Unit 1, the NRC maintains has the regulatory tools necessary to effectively ensure that the public health and safety and common defense and security continues to be protected.

The NRC staff found additional examples relevant to the petition including:

Crystal River Nuclear Generating Plant, Unit 3, which was shut down for an extended period of time before permanently ceasing operations; Kewaunee Power Station, which had permanently shut down and defueled but later considered restarting and relicensing (if-ultimately the licensee decided not to restart); James A. FitzPatrick Nuclear Power Plant, Davis-Besse Nuclear Power Station, Unit 1, and Perry Nuclear Power Plant, Unit 1 for which a decision to permanently cease operations was reversed. The NRC staffs 23

review of these additional examples found that the existing regulatory tools were effective and sufficient in addressing these different scenarios and ensured that the public health and safety and common defense and security continued to be protected.

Therefore, the potential safety and security issues associated with exit and restart from extended *shutdown are currently and adequately covered by the existing regulations and NRC processes.

Issue No. 4: Conduct a decommissioning funding review(s} during an extended shutdown and establish requirements to prevent the retraction of any letter of permanent cessation of operations certification The NRC is denying Issue No. 4 because there is no need to prohibit withdrawal of a certification of permanent cessation of operations or to require additional t=e-assess~ments of decommissioning funding during an extended shutdown.

Certifications under§ 50.82, "Termination of license" The regulations in § 50.82 do not prohibit a licensee from voluntarily placing its facilities in an extended shutdown without terminating the operating license. The regulations do require licensees with an operating license in an extended shutdown to continue to meet all safety and security requirements as outlined in the facility's operating license.

The regulations in§ 50.82(a)(1) specify two actions that the licensee must take to permanently cease operations of a nuclear power facility. First, when the licensee decides to permanently cease operations, the licensee must f>FO".'ide submit a certification of this decision to the NRC in writing within 30 days,pef under 24

§ 50.82(a)(1 )(i). In accordance withUnder § 50.4(b)(8), this certification must contain the date on which the power generation operations ceased or will cease. Second, under

§ 50.82(a)(1 )(ii), the licensee must submit to the NRC a certification of permanent removal of fuel from the reactor vessel. In accordance withUnder § 50.82(a)(2), afteF once the- NRC dockets licensee submits both certifications the licensee submits under

§ 50.82(a)(1)and the NRG dockets both certifications, the licensee is no longer authorized to operate the reactor or place or retain fuel in the reactor vessel.

~Submitting and docketing ef...a certification under§ 50.82(a)(1 )(i) of a determination to cease operations alone is not sufficient to result in permanent cessation of operations. No existing regulation would prevent the licensee from changing its decision to cease operations by retracting its certification under§ 50.82(a)(1 )(i).

The regulations do not specify a time limit for the permanent removal of fuel or the schedule for submitting the corresponding certification under § 50.82(a)( 1)(ii) to the NRC. Additionally, after the NRC dockets the certifications required by§ 50.82(a)(1 ), no existing regulations would explicitly prohibit the NRC from reauthorizing operation ;

however, the licensee would have to demonstrate that it meets all the requirements in 10 CFR part 50 and request approval from the NRC to authorize operation and. The NRC would then determine whether the licensee has met all requirements.

While the NRC cannot prevent the licensee from electing to cease operation and transition to decommissioning, the NRC can stop decommissioning activities in certain situations. The NRC's regulation at § 50.82(a)(6) states that the licensee must not perform any decommissioning activity that: (1) forecloses release of the site for possible unrestricted use, (2) results in any significant environmental impact not previously reviewed , or (3) results in there no longer being reasonable assurance that adequate 25

funds will be available for decommissioning. If any decommissioning activity could not meet these conditions, the licensee is prohibited from undertaking the activity until it submits, and the NRC approves, a license amendment request that describes the proposed activity and the potential impact associated with that activity.

The petitioners provided no basis for requesting the NRC to explicitly prohibit withdrawal of ef...tRe§....-certification of tRe-permanent cessation of operations submitted pursuant tounder § 50.82(a)(1 )(i). There is no fundamental change in the status of the facility's operating license associated with the filing of the§ 50.82(a)(1 )(i) certification.

Further, there is no change in the regulatory treatment of a commercial nuclear power reactor based solely on the submittal of the certification of permanent cessation of operations required by§ 50.82(a)(1 )(i). Thus, withdrawal of this certification, in and of itself, regardless of whether the licensee intends to enter into an extended shutdown or continue operating the facility, does not affect the status of the facility with respect to the NRC's requirements. Similar regulations are found under !n_§ 52.110 for combined licenses. In addition, in its letter dated August 4, 2016, the NRC staff responded to similar questions from David Kraft of the Nuclear Energy Information Service regarding the certifications and license termination requirements under§ 50.82.

Therefore, prohibiting .§tAe licensee from withdrawing a certification of permanent cessation of operations submitted in accordance withunder § 50.82(a)(1 )(i) would not address a new safety or security issue that is not currently and adequately covered by the existing regulations.

Decommissioning Funding The petitioners asserted that a facility in an extended shutdown may eventually resume operation or enter decommissioning. The petitioners requested that the 26

amended regulations clearly address whether decommissioning funding may be used for activities during a facility's extended shutdown and,--if-se, ,t o include the criteria and conditions governing use of decommissioning funding should be inoluded in the amended regulationsof such funds.

The regulations under § 50.82(a)(8)(ii) do not allow decommissioning trust funds to be used for any activities (except decommissioning planning) while the licensee has an operating license... including during an extended shutdown. In addition, #\&-§....licensee in an extended shutdown is not relieved of any existing decommissioning trust fund regulations that are applicable to any facility with an operating license.

The petitioners also requested that the amended regulations require licensees to submit a preliminary decommissioning cost estimate to the NRC at 5-year intervals throughout the period of extended shutdown. The petitioners also inquired whether the decommissioning funding amounts required by§ 50.75(c) should be re-assessed during an extended shutdown.

Regulations under§§ 50. 75(f)(1) and (f)(2) require licensees to report at least once every 2 years on the status of its decommissioning funding and related factors . In addition to these requirements for biennial reports, § 50. 75(f)(3) requires that each power reactor licensee shall, at or about 5 years prior to the projected permanent cessation of operations,3 submit a preliminary decommissioning cost estimate, which includes an up-to-date assessment of the major factors that could affect the cost to decommission. The extended shutdown has no effect on the license expiration date, and all applicable decommissioning funding regulations remain in effect, including

§ 50.75.

3 The "permanent cessation of operations" in this context refers to when a licensee is no longer authorized to operate the reactor or place or retain fuel in the reactor vessel, per§ 50.82(a)(2).

27

Therefore, prohibiting withdrawal of a certification of permanent cessation of operations under§ 50.82(a)(1 )(i) or to roquiroreguiring additional fe-assossingassessments of decommissioning funding during an extended shutdown would not address a new safety or security issue that is not currently and adequately covered by the existing regulations.

IV. Availability of Documents The documents identified in the following table are available to interested persons through one or more of the methods, as indicated.

ADAMS ACCESSION NO. /

DOCUMENT FEDERAL REGISTER CITATION Request for Petition for Rulemaking (PRM-50-114}, dated ML16258A486 September 1, 2016.

Federal Register notice, "Power Reactors in Extended 81 FR 89011 Shutdowns," dated December 9, 2016.

Comment Submission 1: Rodney McCullum of Nuclear Energy ML170558792 Institute (NEI}, dated February 22, 2017.

Comment Submission 2: Paul Bessette of Morgan, Lewis & ML170558953 Bockius, LLP (on behalf of Entergy Nuclear Operations, Inc.},

dated February 23, 2017.

IMC 0350, "Oversight of Reactor Facilities in a Shutdown Condition ML17116A273 Due to Significant Performance and/or Operational Concerns,"

dated March 1, 2018.

IMC 0375, "Implementation of the Reactor Oversight Process at ML15247A274 Reactor Facilities in an Extended Shutdown Condition for Reasons Other Than Performance," dated November 13, 2015.

NUREG/BR-0521 , "Decommissioning Nuclear Power Plants, " ML17177A253Mb44 dated August 2014. ~H),A,47~

28

NUREG-1700, Revision 1, "Standard Review Plan for Evaluating ML18116A124MbQJ Nuclear Power Reactor License Termination Plans," dated April 127QJQ1 2003.

Regulatory Guide (RG) 1.184, Revision 1, "Decommissioning of ML13144A840 Nuclear Power Reactors," dated October 2013.

RG 1.179, Revision 1, "Standard Format and Content of License ML110490419 Termination Plans for Nuclear Power Reactors," dated June 2011.

Letter from Mr. David A . Kraft of Nuclear Energy Information ML16175A449 Service, dated June 16, 2016.

NRC Letter to Mr. David A. Kraft of Nuclear Energy Information ML16218A266 Service, dated August 4, 2016.

FirstEnergy Solutions Corp. Letter, "Withdrawal of Certification of ML19207A097 Permanent Cessation of Power Operations for Davis-Besse Nuclear Power Station. Unit No. 1, and Perry Nuclear Power Plant, Unit No. 1," dated July 26, 2019.

Draft regulatory issue summary, "Disposition of Information 81 FR 30571 Related to the Time Period that Safety-Related Structures, Systems, or Components are Installed ," dated May 17, 2016.

The NRC may post materials related to this document, including public comments, on the Federal Rulemaking Web site at http§.://www.regulations.gov under Docket ID NRC-2016-0204. The Federal Rulemaking Web site allows you to receive alerts when changes or additions occur in a docket folder. To subscribe: 1) navigate to the docket folder (NRC-2016-0204); 2) click the "Sign up for E-mail Alerts" link; and 3) enter your e-mail address and select how frequently you would like to receive e-mails (daily, weekly, or monthly).

V. Conclusion For the reasons cited in this document, the NRC is denying PRM-50-114. The NRC has concluded that the issues raised by the petitioners are adequately addressed 29

by existing NRC regulations, procedures, and guidance, and no amendments to the NRC's regulations are necessary.

Dated at Rockville, Maryland, this day of , 204-92020.

For the Nuclear Regulatory Commission.

Annette L. Vietti-Cook, Secretary of the Commission.

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