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 March 3, 2020.

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 Website: 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; email: 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 email 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 O1-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; email: Dennis.Andrukat@nrc.gov; U.S. Nuclear Regulatory Commission, Washington DC 20555-0001.

SUPPLEMENTARY INFORMATION:

Table of Contents:

I. The Petition

II. Public Comments on the Petition

III. 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 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 Council (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 stated that the current regulations are not intended, as written, for an operating facility in an “extended shutdown.” ^[1] The petitioners also stated that a licensee can place a facility in an extended shutdown without public participation or the NRC's review and approval. The petitioners contended 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 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 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 and NRC regulations applicable to operating nuclear power plants. This contrasts with the petitioners' assertions that the Commission's existing regulations are inadequate as applied to operating reactors that have entered 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 under § 50.82, “Termination of license.” The commenter noted that PRM-50-114 acknowledges that current regulations already require 10 CFR part 50 power reactor licensees to report decommissioning funding status every 2 years. The commenter stated 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 Reactor Oversight Process at Reactor Facilities in an Extended Shutdown Condition for Reasons Other Than Performance,” would achieve the petitioners' objective. This Inspection Manual Chapter is the NRC's guidance for implementation of the reactor oversight process for plants in an extended shutdown condition for reasons not related to performance. The commenter argues 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 addresses 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 adequately address facilities that enter potential extended shutdown periods.

Comment Submission 2

Entergy recommended that the NRC deny the petition. The commenter endorsed (Comment 4) the comments provided in NEI'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 stated 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 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 NEI'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 stated 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 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 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.

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 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.

III. 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 and no amendments to the NRC's regulations are necessary.

Issue No. 1: Define “Extended Shutdown” for Power Reactors

The NRC is denying requested change 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, 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 change 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 sought by the petitioners, would be similar to the post-shutdown decommissioning activities report required by § 50.82(a)(4)(i) and would describe how certain activities are handled during an extended shutdown. The petitioners identified topics they believe should be addressed in the proposed report. Those items are listed below followed by the staff's evaluation of each item:

Operator License

Aging Management

Technical Specifications

Inservice Inspections (and Inservice 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. Under § 55.55, “Expiration,” an operator's license expires 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 inactive 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 inactive. The licensee may find it appropriate to have a reduced number of active licensed operators during an extended shutdown. Before restarting, however (as discussed in Section III, “Reasons for Denial,” Issue No. 3, “Establish requirements to exit and restart from extended shutdown,” of this document), the licensee would need to have the required number of licensed operators in place 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 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 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(c)(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(c)(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.

The usage rules contained in technical specifications are structured 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 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 mode a facility is in (for example from a cold shutdown to hot shutdown or from startup to power operation), 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. 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 new 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 those 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 features of the technical specifications apply at all times, regardless of mode or time since shutdown. For example, the design features typically contain requirements for fuel storage that, if altered or not met, could have a significant impact on safety.

Inservice Inspection and Inservice Testing

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 to shorten or lengthen 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.

Under § 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 the 10-year inservice testing program intervals for plants with extended outages, as discussed above for inservice inspection. Under the OM Code, licensees of plants that are continuously out-of-service are not required to follow the test schedule for pumps and valves and do not need to submit relief requests, which would otherwise be necessary. The OM Code requires that, within the 3 months before a plant is placed in operation, 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

There is no relaxation 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. 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.

Irradiated Fuel ^[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. 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 in making this conclusion.

 Irradiated Fuel: Emergency Planning

Emergency planning regulations and required licensee emergency plans are in place to protect workers and the public from damaged irradiated fuel including 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). Under § 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. 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.

Under § 73.55, licensees who are authorized to operate nuclear power reactors under 10 CFR part 50 or 52 (after the Commission has made the finding under § 52.103(g)) 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. The security plan includes a physical security plan, a training and qualification plan, a safeguards contingency plan, and a cyber security plan.

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. Under § 26.3(a), licensees who are authorized to operate a nuclear power reactor facility under 10 CFR part 50 or part 52 (after the Commission has made the finding under § 52.103(g)) must comply with the requirements of 10 CFR part 26, except for subpart K, “FFD Program for Construction.”

The fitness-for-duty 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 requested change 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 requested change 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. 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.

Before a licensee changes the mode a facility is in, 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 conducted as required by the facility's technical specifications.

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 III 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. The 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 IMC 0375 provides for NRC oversight of a facility exiting from extended shutdown. If a licensee were to place a facility in extended shutdown and later decide to restart, the NRC 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 22-year shutdown, the NRC continued to provide oversight 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 formed the basis for the current IMC 0375. The NRC used existing regulatory tools (e.g., inspectors, inspection procedures, enforcement of the operating license) during the startup of Browns Ferry Nuclear Plant, Unit 1, in 2007. As shown by the safe startup of Browns Ferry Nuclear Plant, Unit 1, the NRC has the regulatory tools necessary to ensure that the public health and safety and common defense and security continue to be protected in the context of restart of a power reactor following an extended shutdown.

Other examples of power reactor facilities experiencing extended shutdowns relevant to the petition include: Crystal River Nuclear Generating Plant, Unit 3, which was shut down for an extended period of time before permanent cessation of operations; Kewaunee Power Station, which had permanently shut down and defueled but later considered restarting and relicensing (ultimately the licensee chose 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 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 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 requested change No. 4 because there is no need to prohibit withdrawal of a certification of permanent cessation of operations or to require additional assessments 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 require a licensee 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 under § 50.82(a)(1)(i). 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)(1)(ii), the licensee must submit to the NRC a certification of permanent removal of fuel from the reactor vessel. Under § 50.82(a)(2), once the NRC dockets the certifications submitted under § 50.82(a)(1), the licensee is no longer authorized to operate the reactor or place or retain fuel into 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 removal of a licensee's authority to operate the reactor. No existing regulation would prevent a power reactor licensee from changing its decision to cease operations by retracting its certification under § 50.82(a)(1)(i).

However, 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 a certification of permanent cessation of operations submitted under § 50.82(a)(1)(i). There is no change in the authority to operate granted by a facility's operating license associated solely with the filing of the § 50.82(a)(1)(i) certification. There 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 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 in § 52.110 for combined licenses.

Therefore, the NRC concludes that prohibiting a licensee from withdrawing a certification of permanent cessation of operations that had been submitted under § 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 requested that the amended regulations clearly address whether decommissioning funding may be used for activities during a facility's extended shutdown and include the criteria and conditions governing their use of such funds.

The regulations in § 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 during an extended shutdown as well as during operation. In addition, a 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 and inquired whether the decommissioning funding amounts required by § 50.75(c) should be re-assessed during an extended shutdown.

The regulations in §§ 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 end of operations,^[3] submit a preliminary decommissioning cost estimate that includes an up-to-date assessment of the major factors that could affect the cost to decommission. An extended shutdown would have 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 requiring additional reassessment 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.

The NRC may post materials related to this document, including public comments, on the Federal Rulemaking website at https://www.regulations.gov under Docket ID NRC-2016-0204. The Federal Rulemaking website 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 Email Alerts” link; and (3) enter your email address and select how frequently you would like to receive emails (daily, weekly, or monthly).

V. Conclusion

For these reasons, 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 and no amendments to the NRC's regulations are necessary.

Footnotes