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Proposed Rule2022-03131

Regulatory Improvements for Production and Utilization Facilities Transitioning to Decommissioning

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Published

March 3, 2022

Issuing agencies

Nuclear Regulatory Commission

Abstract

The U.S. Nuclear Regulatory Commission (NRC) is proposing to amend its regulations that relate to the decommissioning of production and utilization facilities. The NRC's goals in amending these regulations are to maintain a safe, effective, and efficient decommissioning process; reduce the need for license amendment requests and exemptions from existing regulations; address other decommissioning issues deemed relevant by the NRC; and support the NRC's Principles of Good Regulation, including openness, clarity, and reliability. The NRC will hold a public meeting to promote full understanding of this proposed rule and to facilitate public comments.

Full Text

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<title>Federal Register, Volume 87 Issue 42 (Thursday, March 3, 2022)</title>
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[Federal Register Volume 87, Number 42 (Thursday, March 3, 2022)]
[Proposed Rules]
[Pages 12254-12336]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-03131]

[[Page 12253]]

Vol. 87

Thursday,

No. 42

March 3, 2022

Part III

Nuclear Regulatory Commission

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10 CFR Parts 20, 26, 50, et al.

Regulatory Improvements for Production and Utilization Facilities
Transitioning to Decommissioning; Proposed Rule

Federal Register / Vol. 87 , No. 42 / Thursday, March 3, 2022 /
Proposed Rules

[[Page 12254]]

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NUCLEAR REGULATORY COMMISSION

10 CFR Parts 20, 26, 50, 51, 52, 72, 73, 140

[NRC-2015-0070]
RIN 3150-AJ59

Regulatory Improvements for Production and Utilization Facilities
Transitioning to Decommissioning

AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is proposing to
amend its regulations that relate to the decommissioning of production
and utilization facilities. The NRC's goals in amending these
regulations are to maintain a safe, effective, and efficient
decommissioning process; reduce the need for license amendment requests
and exemptions from existing regulations; address other decommissioning
issues deemed relevant by the NRC; and support the NRC's Principles of
Good Regulation, including openness, clarity, and reliability. The NRC
will hold a public meeting to promote full understanding of this
proposed rule and to facilitate public comments.

DATES: Submit comments by May 17, 2022. Comments received after this
date will be considered if it is practical to do so, but the Commission
is able to ensure consideration only for comments received before this
date.

ADDRESSES: You may submit comments by the following method (unless this
document describes a different method for submitting comments on a
specific subject); however, the NRC encourages electronic comment
submission through the Federal rulemaking website:
<bullet> Federal Rulemaking Website: Go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and search for Docket ID NRC-2015-0070. Address
questions about NRC dockets to Dawn Forder; telephone: 301-415-3407;
email: <a href="/cdn-cgi/l/email-protection#9edaffe9f0b0d8f1ecfafbecdef0ecfdb0f9f1e8">[email&#160;protected]</a>. For technical questions contact the
individual listed in the FOR FURTHER INFORMATION CONTACT section of
this document.
<bullet> Email comments to: <a href="/cdn-cgi/l/email-protection#d587a0b9b0b8b4bebcbbb2fb96bab8b8b0bba1a695bba7b6fbb2baa3">[email&#160;protected]</a>. If you do
not receive an automatic email reply confirming receipt, then contact
us at 301-415-1677.
<bullet> Mail comments to: Secretary, U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001, ATTN: Rulemakings and
Adjudications Staff.
For additional direction on obtaining information and submitting
comments, see ``Obtaining Information and Submitting Comments'' in the
SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Daniel I. Doyle, Office of Nuclear
Material Safety and Safeguards, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001; telephone: 301-415-3748; email:
<a href="/cdn-cgi/l/email-protection#0246636c6b676e2c466d7b6e67426c70612c656d74">[email&#160;protected]</a>.

SUPPLEMENTARY INFORMATION:

Executive Summary

A. Need for the Regulatory Action

The NRC is proposing to amend its regulations related to the
decommissioning of production and utilization facilities. The
Commission directed the NRC staff to proceed with an integrated
rulemaking on nuclear power reactor decommissioning to address the
following: A graded approach to emergency preparedness (EP), lessons
learned from the licensees that have already gone through (or are
currently going through) the decommissioning process, the advisability
of requiring a licensee's post-shutdown decommissioning activities
report (PSDAR) to be approved by the NRC, the appropriateness of
maintaining the three existing options for decommissioning and the
timeframes associated with those options, the appropriate role of State
and local governments and non-governmental stakeholders in the
decommissioning process, and any other issues deemed relevant by the
NRC staff.
Compared to an operating nuclear power reactor, the risk of an
offsite radiological release is significantly lower, and the types of
possible accidents are significantly fewer, at a nuclear power reactor
that has permanently ceased operations and removed fuel from the
reactor vessel. As a direct result, there is no need for the NRC to
impose new requirements in the areas identified in this rulemaking to
address safety or security concerns. Instead, the requirements in
decommissioning should be aligned with the reduction in risk that
occurs over time, while maintaining safety and security. The
decommissioning process can be improved and made more efficient, open,
and predictable by reducing the reliance on licensing actions (i.e.,
license amendment and exemption requests) that reflect this reduction
in risk to achieve a sustainable regulatory framework during
decommissioning.
The NRC has also determined that changes to the regulations are
appropriate with respect to drug and alcohol testing; cyber security;
and foreign ownership, control, or domination of a production or
utilization facility undergoing decommissioning.
In several areas, the current regulations do not distinguish
between provisions that apply to a nuclear power reactor that has
permanently ceased operations and provisions that apply to an operating
nuclear power reactor. To address this, the NRC is proposing to amend
its regulations in several areas to provide a regulatory framework for
the transition from operating to decommissioning. This proposed rule is
a four-step graded approach that is commensurate with the reduction in
radiological risk at four levels of decommissioning: (1) Permanent
cessation of operations and permanent removal of all fuel from the
reactor vessel, (2) sufficient decay of fuel in the spent fuel pool
(SFP) such that it would not reach ignition temperature within 10 hours
under adiabatic heatup conditions (i.e., a complete loss of SFP water
inventory with no heat loss), (3) transfer of all fuel to dry storage,
and (4) removal of all fuel from the site. The graded approach is a
fundamental concept for this proposed rule.
Because the current regulatory framework for decommissioning is
adequate to protect public health and safety and the common defense and
security, many of the new requirements in this proposed rule are
alternatives to current requirements.

B. Major Provisions

Major provisions of this proposed rule include changes in the
following areas:
<bullet> Emergency preparedness. This proposed rule offers an
alternative, graded approach to the current requirements for onsite and
offsite radiological emergency preparedness at a nuclear power reactor.
This approach would provide four levels of emergency planning standards
that coincide with significant milestones in decommissioning that
reflect the gradual reduction of the radiological risk during
decommissioning.
<bullet> Physical security. This proposed rule would make certain
changes that would apply once a nuclear power reactor enters
decommissioning. These proposed changes would (1) permit a certified
fuel handler (CFH) to approve the temporary suspension of security
measures during certain emergency conditions or during severe weather,
(2) remove the requirement that a licensee's physical protection
program be

[[Page 12255]]

designed to prevent significant core damage, (3) remove the requirement
that a licensee must designate the reactor control room as a ``vital
area,'' and (4) replace the requirement for maintaining continuous
communications between the alarm stations and the control room with a
requirement for maintaining communications between alarm stations and
the CFH or senior on shift licensee representative, or both. This last
change would clarify the management role of the CFH in a manner that is
consistent with Sec. 50.54(y) of title 10 of the Code of Federal
Regulations (10 CFR). The NRC is also proposing to revise Sec.
50.54(p) to add definitions for ``change'' and ``decrease in safeguards
effectiveness,'' as those terms apply to the process for making changes
to the security plans of licensees under 10 CFR part 50, ``Domestic
Licensing of Production and Utilization Facilities,'' and 10 CFR part
52, ``Licenses, Certifications, and Approvals for Nuclear Power
Plants,'' with operating, decommissioning, or decommissioned reactor
units. In addition, this proposed rule would provide an option for a
licensee to protect a general license independent spent fuel storage
installation (ISFSI) under the physical security requirements in Sec.
73.51, ``Requirements for the physical protection of stored spent
nuclear fuel and high-level radioactive waste,'' for a specific license
ISFSI instead of the physical security requirements in Sec. 73.55,
``Requirements for physical protection of licensed activities in
nuclear power reactors against radiological sabotage,'' for a nuclear
power reactor once all spent fuel has been moved to dry storage.
<bullet> Cyber security. This proposed rule would provide that the
cyber security requirements in Sec. 73.54, ``Protection of digital
computer and communication systems and networks,'' continue to apply to
a nuclear power reactor after the licensee's permanent cessation of
operations, until all the fuel has been removed from the reactor vessel
and there has been sufficient decay of the fuel in the SFP such that it
would not reach ignition temperature within 10 hours under adiabatic
heatup conditions, at which point no digital computer and
communications systems would be required to meet the criteria of Sec.
73.54. This proposed rule would also provide for the removal of the
cyber security license condition for 10 CFR part 50 nuclear power
reactor licensees after the spent fuel decay period.
<bullet> Drug and alcohol testing. This proposed rule would correct
inconsistencies in the NRC's regulations for fitness-for-duty (FFD)
programs and clarify provisions regarding a nuclear power reactor
licensee's insider mitigation program (IMP).
<bullet> Certified fuel handler definition and elimination of the
shift technical advisor. This proposed rule would retain the existing
definition for ``certified fuel handler'' and add an alternative that
would eliminate the need for nuclear power reactor licensees to seek
the Commission's approval of a fuel handler training program. The
proposed provision would require the training program to address the
safe conduct of decommissioning activities, safe handling and storage
of spent fuel, and appropriate response to plant emergencies. The
proposed alternative specifies that a CFH must be qualified in
accordance with a fuel handler training program that meets the same
requirements as training programs for non-licensed operators required
by Sec. 50.120, ``Training and qualification of nuclear power plant
personnel.'' This proposed rule would also clarify that a Shift
Technical Advisor (STA) is not required for decommissioning nuclear
power reactors.
<bullet> Decommissioning funding assurance. This proposed rule
recommends several changes regarding decommissioning funding for
nuclear power reactors. It would modify the reporting frequency in
Sec. 50.75 to be consistent with the decommissioning funding assurance
reporting frequency for ISFSIs in Sec. 72.30(c). For ISFSI funding
reports, this proposed rule would allow licensees to combine the
reports that are required by Sec. 50.82(a)(8)(v), Sec.
50.82(a)(8)(vii), and Sec. 72.30 and remove the requirement for NRC
approval of ISFSI reports filed under Sec. 72.30(c). It also would
clarify that although the regulations establish a continuing obligation
to provide reasonable assurance of decommissioning funding, when a
licensee identifies a shortfall in the report required by Sec.
50.75(f)(1), the licensee must obtain additional financial assurance to
cover the shortfall and discuss that information in the next report. In
addition, this proposed rule would make administrative changes to
ensure consistency with Sec. 50.4, ``Written communications,''
regarding the submission of notifications and to eliminate Sec.
50.75(f)(2) because Sec. 50.75(f)(1) fully encompasses paragraph
(f)(2). Besides proposing conforming changes to 10 CFR part 52, the NRC
is asking whether the NRC should maintain identical requirements in
Sec. 52.110 and Sec. 50.82.
<bullet> Offsite and onsite financial protection requirements and
indemnity agreements. This proposed rule would allow certain nuclear
power reactor licensees in decommissioning to reduce the insurance
amounts that they are required to maintain without obtaining exemptions
from the NRC's regulations.
<bullet> Environmental considerations. This proposed rule would
clarify that licensees must evaluate the environmental impacts of
decommissioning and whether they are bounded by previous environmental
reviews in the PSDAR. The proposed rule would also clarify
environmental reporting requirements.
<bullet> Record retention requirements. This proposed rule would
remove certain record retention requirements for structures, systems,
and components (SSCs) that no longer remain in service during
decommissioning and would remove requirements to keep multiple copies
of certain spent fuel storage records. The NRC is also asking a
specific question concerning the recordkeeping requirements for
facilities licensed under 10 CFR part 52.
<bullet> Low-level waste transportation. This proposed rule would
allow a 45-day window for notification of receipt of shipments of low-
level radioactive waste (LLW). This increase from the current 20-day
notification window is based on operating experience that shows that 45
days is an appropriate amount of time for notification of LLW
shipments.
<bullet> Spent fuel management planning. This proposed rule would
clarify requirements that the decommissioning documents contain
information on spent fuel management planning in accordance with the
regulatory requirements in Sec. 72.218, ``Termination of licenses.''
<bullet> Backfit rule. This proposed rule would clarify how the NRC
applies Sec. 50.109, ``Backfitting,'' to nuclear power reactor
licensees in decommissioning and would make conforming changes to Sec.
72.62.
<bullet> Foreign ownership, control, or domination. This proposed
rule would specify the criteria for when a facility is no longer a
production or utilization facility and that the foreign ownership,
control, or domination (FOCD) prohibition found in Sec. 50.38,
``Ineligibility of certain applicants,'' no longer applies to a person
seeking a license for such a facility.
<bullet> Clarification of scope of license termination plan
requirement. This proposed rule would clarify that the requirement for
a license termination plan in Sec. Sec. 50.82(a)(9) and 52.110(i)
applies only to nuclear power reactor licensees that have loaded fuel
into the reactor.
<bullet> Removal of license conditions and withdrawal of orders
made redundant

[[Page 12256]]

by regulation. This proposed rule would deem removed conditions imposed
upon individual licensees and withdraw NRC orders that have been
identified as having been made redundant by subsequent regulation
resulting in their requirements being generically applicable. License
conditions deemed removed would be actually removed by administrative
license amendment subsequent to the effective date of the final rule.
The NRC is interested in obtaining stakeholder input to identify
potential redundant requirements not listed in this proposed rule.
<bullet> Changes for consistent treatment of holders of combined
licenses and operating licenses. The proposed rule would improve
consistency in regulatory treatment for combined license (part 52) and
operating license (part 50) holders by aligning regulatory
applicabilities for combined license holders upon submittal of the
Sec. 52.110(a) certifications with regulatory applicabilities for
operating license holders upon submittal of the Sec. 50.82(a)(1)
certifications.

C. Costs and Benefits

The NRC prepared a draft regulatory analysis to determine the
expected quantitative costs and benefits of this proposed rule, as well
as qualitative factors to be considered in the NRC's rulemaking
decision. The conclusion of the analysis is that this proposed rule
would result in net savings to production and utilization facility
licensees and the NRC. The analysis combines the costs and benefits
from the decommissioning areas of EP, physical security, cyber
security, drug and alcohol testing, CFH training, decommissioning
funding assurance, offsite and onsite financial protection requirements
and indemnity agreements, environmental considerations, records
retention, low-level waste transportation, spent fuel management
planning, application of the Backfit Rule, FOCD, and clarification of
the scope of a license termination plan. The analysis discusses the
economic impact to the nuclear industry, government, and society from
the rulemaking and associated guidance.
The draft regulatory analysis discusses the cost benefit analysis
for the various alternatives of each area of decommissioning proposed
by the NRC, and shows that the NRC's proposed rule and guidance
development is overall cost beneficial to the nuclear industry,
government, and society as shown in Table 1.

Table 1--Summary of Costs and Benefits (7% NPV)
------------------------------------------------------------------------
Benefits Costs Net benefit
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$18,315,000 $(401,000) $17,914,000
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The draft regulatory analysis also considers, in a qualitative
fashion, regulatory efficiency, public health and safety, and common
defense and security. For the regulatory efficiency aspect, this
proposed rule would enable the NRC to better maintain and administer
regulatory activities over the decommissioning process and ensure that
the requirements for decommissioning production and utilization
facilities are clear and appropriate. This proposed rule would also
continue to provide reasonable assurance of adequate protection of the
public health and safety and promote the common defense and security
and protect the environment at production and utilization facility
sites that have started decommissioning.
Based on these quantitative and qualitative factors, the draft
regulatory analysis concludes that the proposed rule should be adopted.
For more information, please see the draft regulatory analysis
available at the NRC's Agencywide Documents Access and Management
System (ADAMS) under Accession No. ML22019A132.

Table of Contents

I. Obtaining Information and Submitting Comments
A. Obtaining Information
B. Submitting Comments
II. Background
A. 1988 Decommissioning Rule
B. 1996 Decommissioning Rule
C. Post-1996 Final Rule Decommissioning Activity
D. Spent Fuel Pool Studies
E. Changes in Nuclear Power Reactor Decommissioning at the NRC
and Within the Nuclear Power Industry
F. Decommissioning Lessons Learned Report
G. Initiation of This Proposed Rule
H. Advance Notice of Proposed Rulemaking
I. Regulatory Basis
III. Discussion
A. Current Regulatory Process
B. Objectives of This Proposed Rule
C. Applicability
D. Applicability to NRC Licensees During Operations
E. Applicability to ISFSI-Only and Standalone ISFSI/
Decommissioned Reactor Sites
F. Graded Approach
G. Technical Basis for Graded Approach
H. Levels of Decommissioning
1. Level 1
2. Level 2
3. Level 3
4. Level 4
IV. Scope of the Proposal
A. Emergency Preparedness
1. Introduction
2. Graded Approach for Emergency Preparedness
3. Licensee Supporting Analyses
4. Post-Shutdown Emergency Plans
5. Permanently Defueled Emergency Plans
6. Independent Spent Fuel Storage Installation-Only Emergency
Plans
7. All Spent Fuel Removed From Site
8. Changes to Emergency Plans
9. Program Element Review Under Sec. 50.54(t)
10. Reasonable Assurance and Offsite Radiological Emergency
Preparedness
11. Clean-up of Regulations
12. Revisions to Sec. 72.32
B. Physical Security
1. Security Plans
2. Dry Cask Storage
3. Significant Core Damage
4. Vital Areas
5. Communications
6. Suspension of Security Measures
C. Cyber Security
D. Drug and Alcohol Testing
1. Scope of 10 CFR Part 26
2. Fitness-for-Duty Elements for Insider Mitigation Program
3. Criminal Penalties
E. Certified Fuel Handler Definition and Elimination of the
Shift Technical Advisor
1. Alternative Definition for Certified Fuel Handler
2. Elimination of the Shift Technical Advisor
F. Decommissioning Funding Assurance
1. Clarification of Sec. 50.82(a) and Sec. 52.110(h)
2. Changes to Reporting Requirements
3. Shortfalls in Decommissioning Funding Assurance
4. Conforming Changes to 10 CFR Part 52
5. Change to 10 CFR Part 72
G. Offsite and Onsite Financial Protection Requirements and
Indemnity Agreements
1. Proposed Revisions to Offsite Liability and Onsite Property
Insurance Requirements
2. Proposed Revision to Extraordinary Nuclear Occurrences
Requirements
3. Proposed New Rule Language in Sec. 50.54(w)(6)
H. Environmental Considerations

[[Page 12257]]

1. Clarifying Changes to 10 CFR Parts 50 and 52
2. Consistency Changes to 10 CFR Part 51
I. Record Retention Requirements
J. Low-Level Waste Transportation
K. Spent Fuel Management Planning
1. Requirements for the IFMP in Sec. 50.54(bb) and the PSDAR in
Sec. 50.82 and Sec. 52.110
2. Requirements in Sec. 72.218 for Termination of the General
License for Spent Fuel Storage
L. Backfit Rule
M. Foreign Ownership, Control, or Domination
N. Clarification of Scope of License Termination Plan
Requirement
O. Removal of License Conditions and Withdrawal of Orders
P. Changes for Consistent Treatment of Holders of Combined
Licenses and Operating Licenses
V. Specific Requests for Comments
VI. Section-by-Section Analysis
VII. Regulatory Flexibility Certification
VIII. Regulatory Analysis
IX. Backfitting and Issue Finality
A. Current and Future Applicants
B. Existing Design Certifications
C. Existing Licensees
D. Backfit Analysis
1. Introduction and Background
2. Detailed Description of the Proposed Change Affecting Issue
Finality
3. Benefits: Substantial Increase in Public Health and Safety
and Common Defense and Security
4. Costs
5. Determination of Substantial Benefits Justifying Costs of the
Proposed Change Affecting Issue Finality
6. Conclusion
7. Evaluation of Factors in Sec. 50.109(c)(1) Through (9)
E. Draft Regulatory Guidance
X. Cumulative Effects of Regulation
XI. Plain Writing
XII. National Environmental Policy Act
XIII. Paperwork Reduction Act
XIV. Criminal Penalties
XV. Voluntary Consensus Standards
XVI. Availability of Guidance
XVII. Public Meeting
XVIII. Availability of Documents

I. Obtaining Information and Submitting Comments

A. Obtaining Information

Please refer to Docket ID NRC-2015-0070 when contacting the NRC
about the availability of information for this action. You may obtain
publicly available information related to this action by any of the
following methods:
<bullet> Federal Rulemaking Website: Go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and search for Docket ID NRC-2015-0070.
<bullet> NRC's Agencywide Documents Access and Management System
(ADAMS): You may obtain publicly available documents online in the
ADAMS Public Documents collection at <a href="https://www.nrc.gov/reading-rm/adams.html">https://www.nrc.gov/reading-rm/adams.html</a>. 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, at 301-415-4737,
or by email to <a href="/cdn-cgi/l/email-protection#0e7e6a7c207c6b7d617b7c6d6b4e607c6d20696178">[email&#160;protected]</a>. For the convenience of the reader,
instructions about obtaining materials referenced in this document are
provided in the ``Availability of Documents'' section of this document.
<bullet> NRC's PDR: You may examine and purchase copies of public
documents, by appointment, at the NRC's PDR, Room P1 B35, One White
Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. To make
an appointment to visit the PDR, please send an email to
<a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="b5e5f1e79be7d0c6dac0c7d6d0f5dbc7d69bd2dac3">[email&#160;protected]</a> or call 1-800-397-4209 or 301-415-4737, between
8:00 a.m. and 4:00 p.m. (ET), Monday through Friday, except Federal
holidays.

B. Submitting Comments

The NRC encourages electronic comment submission through the
Federal rulemaking website (<a href="https://www.regulations.gov">https://www.regulations.gov</a>). Please
include Docket ID NRC-2015-0070 in your comment submission.
The NRC cautions you not to include identifying or contact
information that you do not want to be publicly disclosed in your
comment submission. The NRC will post all comment submissions at
<a href="https://www.regulations.gov">https://www.regulations.gov</a> as well as enter the comment submissions
into ADAMS. The NRC does not routinely edit comment submissions to
remove identifying or contact information.
If you are requesting or aggregating comments from other persons
for submission to the NRC, then you should inform those persons not to
include identifying or contact information that they do not want to be
publicly disclosed in their comment submission. Your request should
state that the NRC does not routinely edit comment submissions to
remove such information before making the comment submissions available
to the public or entering the comment into ADAMS.

II. Background

Under 10 CFR part 50 and 10 CFR part 52, the NRC requires current
and future holders of operating licenses and current and future holders
of combined licenses, respectively, to comply with a variety of
regulatory requirements related to decommissioning. This section
discusses previous rules that set out the NRC's requirements for
production and utilization facility decommissioning and activities that
have led to the development of this proposed rule.

A. 1988 Decommissioning Rule

On June 27, 1988, the NRC published a final rule titled, ``General
Requirements for Decommissioning Nuclear Facilities'' (53 FR 24018)
(referred to herein as the ``1988 Final Rule''), which established
decommissioning requirements for various types of licensees. In this
rule, the NRC amended its regulations to provide specific requirements
for the decommissioning of nuclear facilities. Specifically, the final
rule established regulations on acceptable decommissioning
alternatives, planning for decommissioning, decommissioning timeliness,
assurance of the availability of funds for decommissioning, and
environmental review requirements related to decommissioning. The 1988
Final Rule amended the regulations that applied to applicants and
licensees under 10 CFR part 30, ``Rules of General Applicability to
Domestic Licensing of Byproduct Material''; 10 CFR part 40, ``Domestic
Licensing of Source Material''; 10 CFR part 50; 10 CFR part 70,
``Domestic Licensing of Special Nuclear Material''; and 10 CFR part 72,
``Licensing Requirements for the Independent Storage of Spent Nuclear
Fuel, High-Level Radioactive Waste, and Reactor-Related Greater than
Class C Waste.''
In the 1988 Final Rule, the NRC defined decommissioning as the
``removal of nuclear facilities safely from service and reduction of
residual radioactivity to a level that permits release of the property
for unrestricted use and termination of the license.'' The NRC also
stated in the 1988 Final Rule that decommissioning activities do not
include the removal and disposal of spent fuel, which is considered to
be an operational activity, or the removal and disposal of
nonradioactive structures and materials beyond that necessary to
terminate the NRC license.
The purpose of the 1988 Final Rule, in part, was to ensure that
reactor decommissioning would be carried out with minimal impact on
public and occupational health and safety and the environment. The
NRC's objective was that decommissioned facility sites would ultimately
be available for unrestricted use for any public or private purpose.
The amended regulations provided a regulatory framework for efficient
and consistent licensing actions related to decommissioning.
The NRC noted in the 1988 Final Rule that, although decommissioning
was not an imminent health and safety problem, the number and
complexity of facilities that would require decommissioning

[[Page 12258]]

was expected to increase, and inadequate or untimely consideration of
decommissioning, specifically in the areas of planning and financial
assurance, could result in significant adverse health, safety, and
environmental impacts. The 1988 Final Rule clearly states that the
licensee is responsible for the funding and completion of
decommissioning in a manner that protects public health and safety. The
NRC stated, ``With the increased number of decommissionings expected,
case-by-case procedures would make licensing difficult and increase NRC
and licensee staff resources needed for these activities'' (53 FR
24019).
The 1988 Final Rule required that, within 2 years after a licensee
permanently ceases operation of a licensed nuclear facility, the
licensee must submit a detailed decommissioning plan to the NRC for
approval along with a supplemental environmental report that addresses
environmental issues that have not already been considered. Based on
these submittals, the NRC reviewed the licensee's planned activities,
prepared a safety evaluation report and an environmental assessment
(EA), and either made a finding of no significant impact (the usual
case) or prepared an environmental impact statement. Upon approval of
the decommissioning plan, the NRC issued an order under Sec. 2.202,
``Orders,'' permitting the licensee to decommission its facility in
accordance with the approved plan. As part of the approval process for
the decommissioning plan, the public had the opportunity to request a
hearing under 10 CFR part 2, ``Agency Rules of Practice and
Procedure.'' The NRC would terminate the license once the
decommissioning process was completed and the NRC was satisfied that
the facility had been radioactively decontaminated to an unrestricted
release level under Sec. 20.1402, ``Radiological criteria for
unrestricted use.'' \1\
---------------------------------------------------------------------------

\1\ License termination based upon a facility meeting the
unrestricted use criteria under Sec. 20.1402 is the most common
license termination scenario. The NRC may also terminate a facility
license under restricted conditions (Sec. 20.1403, ``Criteria for
license termination under restricted conditions'') and under
alternative criteria (Sec. 20.1404, ``Alternative criteria for
license termination'').
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If the licensee chose to place the reactor in storage and dismantle
it at a later time, the initial decommissioning plan submittal was not
required to be as detailed as a plan for prompt dismantlement. However,
before the licensee could begin dismantlement, the regulations required
that the licensee submit a detailed plan and environmental report to
the NRC for approval. Before the decommissioning plan was approved, the
licensee could not perform any major decommissioning activities. If a
licensee desired a reduction in requirements because of the permanent
cessation of operations, it had to obtain a license amendment for
possession-only status. This possession-only license amendment was
usually granted after the licensee indicated that the reactor had
permanently ceased operations and that fuel had been permanently
removed from the reactor vessel. Three examples of licensees that were
granted possession-only status are Yankee Atomic Electric Company for
the Yankee Nuclear Power Station (Yankee Rowe) (August 5, 1992; ADAMS
Accession No. ML17283A069), Portland General Electric Company for the
Trojan Nuclear Power Plant (May 5, 1993; ADAMS Accession No.
ML18095A126), and Sacramento Municipal Utility District for the Rancho
Seco Nuclear Generating Station (March 17, 1992; ADAMS Accession No.
ML17283A071).
The 1988 Final Rule required licensees to provide assurance that,
at any time during the life of the facility through termination of the
license, adequate funds will be available to complete decommissioning.
For operating reactors, the 1988 Final Rule prescribed the required
amount of decommissioning funding in Sec. 50.75. The 1988 Final Rule
also imposed the requirement that, 5 years before license expiration or
cessation of operations, licensees must submit a preliminary
decommissioning plan containing a site-specific decommissioning cost
estimate and appropriately adjust the financial assurance mechanism. In
addition, the 1988 Final Rule required licensees to submit a
decommissioning plan, including a site-specific cost estimate for
decommissioning and a correspondingly adjusted financial assurance
mechanism, within 2 years after permanent cessation of operations. For
delayed dismantlement of a nuclear facility, the 1988 Final Rule
required licensees to submit an updated decommissioning plan with the
estimated cost covering the delay of decommissioning and to
appropriately adjust the financial assurance mechanism. Before approval
of the decommissioning plan, the 1988 Final Rule specified that
licensee use of the decommissioning funds would be determined on a
case-specific basis for premature closure, when the accrual of required
decommissioning funds may be incomplete.

B. 1996 Decommissioning Rule

On July 29, 1996, the NRC amended its regulations for reactor
decommissioning to clarify ambiguities, codify procedures that reduced
regulatory burden, provide greater flexibility, and allow for greater
public participation in the decommissioning process in a final rule
titled, ``Decommissioning of Nuclear Power Reactors'' (61 FR 39278)
(referred to herein as the ``1996 Final Rule''). The 1996 Final Rule
made fundamental changes to nuclear power reactor decommissioning by
streamlining the process and reducing both licensee and NRC resource
expenditures while maintaining safety, protecting the environment, and
encouraging public involvement.
In the 1996 Final Rule, the NRC explained that the degree of
regulatory oversight required for a nuclear power reactor in
decommissioning is considerably less than that required for a facility
during its operating stage. During the operating stage of the reactor,
fuel in the reactor core undergoes a controlled nuclear fission
reaction that generates a high neutron flux and large amounts of heat.
Safe control of the nuclear reaction involves the use and operation of
many complex systems. First, the nuclear reaction must be carefully
controlled through neutron-absorbing mechanisms. Second, the heat
generated must be removed so that the fuel and its supporting structure
do not overheat. Third, the confining structure and ancillary systems
must be maintained and degradation caused by radiation and mechanical
and thermal stress ameliorated. Fourth, the radioactivity resulting
from the nuclear reaction in the form of direct radiation (especially
near the high neutron flux areas around the reactor vessel) and any
radiologically contaminated materials and radiological effluents
(gaseous and liquid) must be minimized and controlled. Moreover, proper
operating procedures must be established and maintained, with
appropriately trained staff to ensure that the reactor system is
properly operated and maintained, and that operating personnel minimize
their exposure to radiation when performing their duties. Finally,
emergency response procedures must be established and maintained to
protect the public in the event of an accident.
Decommissioning of a nuclear power reactor begins when the nuclear
fission reaction is stopped and the fuel (in the form of spent fuel
assemblies) is permanently removed from the reactor

[[Page 12259]]

vessel and placed in the SFP until transferred to interim storage in an
onsite ISFSI or transported offsite for storage or disposal. While the
spent fuel is still highly radioactive and generates heat caused by
radioactive decay, the fuel slowly cools as its energetic decay
products diminish. The SFP, which contains circulating water, removes
the decay heat and filters out any small radioactive contaminants
escaping the spent fuel assemblies. The SFP system is relatively simple
to operate and maintain compared to an operating nuclear power reactor.
The remainder of the facility may contain radioactive contamination in
areas that were directly impacted by reactor operation, and will be
more highly contaminated in the area of the reactor vessel. However, no
new radioactivity can be generated because the spent fuel is stored in
a configuration that precludes the nuclear fission reaction. Once the
nuclear fission process has permanently ceased and the fuel assemblies
have been removed from the reactor vessel, safety concerns for an SFP
are greatly reduced because there is no longer generation of large
amounts of heat, high neutron flux and related materials degradation,
and other related stresses that result from the functioning of an
operating reactor system.
Contaminated areas of the facility must still be controlled to
minimize radiation exposure to personnel and control the spread of
radioactive material. This situation is now similar to a contaminated
materials facility and does not require the oversight that an operating
reactor would require.
The amendments issued in the 1996 Final Rule provided licensees
with simplicity and flexibility in implementing the decommissioning
process, especially with regard to premature closure. The amendments
clarified ambiguities in the regulations existing at the time, codified
procedures and terminology that had been used in a number of specific
cases, and increased opportunities for the public to become informed
about the licensee's decommissioning activities. The amendments
established a level of NRC oversight commensurate with the level of
safety concerns expected during decommissioning activities.
Specifically, the 1996 Final Rule established or modified requirements
with regard to initial decommissioning activities, major
decommissioning activities, and license termination procedures.
With regard to initial decommissioning activities, the 1996 Final
Rule mandated that, once a licensee permanently ceases operation of the
nuclear power reactor and removes the fuel assemblies from the reactor
vessel, it could not undertake any major decommissioning activities
until it provided the public and the NRC with additional information
about the proposed decommissioning approach. The NRC required that the
licensee submit this information in the form of a PSDAR, which consists
of the licensee's proposed decommissioning activities and schedule
through license termination, a discussion of the reasons for concluding
that the environmental impacts associated with the proposed site-
specific decommissioning activities will be bounded by appropriate
previously issued environmental impact statements, and a
decommissioning cost estimate for the proposed activities. The NRC
makes the PSDAR available to the public for comment and holds a public
meeting concerning the PSDAR in the vicinity of the plant. The NRC,
however, does not approve the PSDAR and the submission of the PSDAR and
its review by the NRC does not require the licensee to request a
license amendment or any other approval.
The 1996 Final Rule also established that the licensee may not
begin performing major decommissioning activities until 90 days after
the NRC receives the PSDAR submittal and until the licensee submits the
certifications under Sec. 50.82(a)(1) that operations have permanently
ceased and that fuel has been permanently removed from the reactor
vessel. The 1996 Final Rule also amended certain 10 CFR part 50
technical requirements to cover the transition of the facility from
operating to permanently shutdown status. Specifically, the 1996 Final
Rule removed the requirement for a licensee that has permanently ceased
operations and removed fuel from the reactor vessel to obtain a license
amendment before proceeding with certain decommissioning activities
within established regulatory constraints (i.e., in accordance with
Sec. 50.59, ``Changes, tests and experiments''). These changes to the
decommissioning requirements increased the flexibility in the type of
actions that licensees could undertake without prior NRC approval.
With regard to major decommissioning activities, the 1996 Final
Rule implemented a major change from the 1988 Final Rule in that
nuclear power reactor licensees would no longer be required to have an
approved decommissioning plan before being permitted to perform major
decommissioning activities. The 1996 Final Rule allowed licensees to
perform activities that meet the criteria in Sec. 50.59, which the NRC
amended to include additional criteria to ensure that licensees
consider concerns specific to decommissioning. Based on NRC experience
with licensee decommissioning activities at the time, the NRC
recognized that the Sec. 50.59 process used by the licensee during
reactor operations encompassed routine activities that were similar to
those undertaken during the decommissioning process. The NRC concluded
that the licensee could use the Sec. 50.59 process to perform major
decommissioning activities if licensing conditions and the level of NRC
oversight required during reactor operations continued during
decommissioning, commensurate with the risk profile of the facility
being decommissioned. The 1996 Final Rule also required the licensee to
provide written notification to the NRC before performing any
decommissioning activity that is inconsistent with, or makes
significant schedule changes from, the actions and schedules described
in the PSDAR.
With regard to license termination, the 1996 Final Rule required
that a licensee wishing to terminate its license submit a license
termination plan for NRC approval. The approval process for the
termination plan provides for a hearing opportunity under 10 CFR part
2. The licensee must submit a supplemental environmental report that
considers new and significant environmental changes associated with
license termination activities. The 1996 Final Rule imposed an
additional requirement for the purpose of keeping the public informed.
A public meeting, similar to the one held after the PSDAR submittal,
must take place after the licensee submits its license termination plan
to the NRC.
The 1996 Final Rule continued the same degree of decommissioning
financial assurance that was previously required but provided more
flexibility by allowing licensees to have limited, early use of
decommissioning funds. The NRC presented this provision in a February
3, 1994, draft policy statement titled, ``Use of Decommissioning Trust
Funds before Decommissioning Plan Approval'' (59 FR 5216), which was
published for comment and eventually incorporated into the 1996 Final
Rule. Before issuance of the 1996 Final Rule, licensee use of these
funds was determined on a case-specific basis for prematurely shutdown
plants. However, the 1996 Final Rule eliminated the requirement for a
decommissioning plan and instead required a PSDAR submittal, which
requires a decommissioning cost estimate. The 1996 Final Rule permitted
3 percent of the decommissioning funds generically

[[Page 12260]]

required by Sec. 50.75 to be available to the licensee for
decommissioning planning purposes. Moreover, to allow the licensee to
accomplish major decommissioning activities promptly, an additional 20
percent of the generic funding amount would be made available 90 days
after the NRC had received the PSDAR if the licensee had also submitted
the certifications required by Sec. 50.82(a)(1). The use of any funds
above those amounts required the licensee to submit a site-specific
decommissioning cost estimate to the NRC prior to the use of those
funds.

C. Post-1996 Final Rule Decommissioning Activity

In a series of Commission papers issued between 1997 and 2001, the
NRC staff provided options and recommendations to the Commission to
address regulatory improvements related to nuclear power reactor
decommissioning. To consolidate these recommendations, in the Staff
Requirements Memorandum (SRM) for SECY-99-168, ``Staff Requirements--
SECY-99-168--Improving Decommissioning Regulations for Nuclear Power
Plants,'' dated December 21, 1999 (ADAMS Accession No. ML003752190),
the Commission directed the NRC staff to proceed with a single,
integrated, and risk-informed decommissioning rule addressing the areas
of EP, insurance, safeguards, staffing and training, and backfitting
for decommissioning nuclear power reactors. The objective of the
rulemaking was to clarify and remove certain regulations for
decommissioning nuclear power reactors based in large part on the
reduction in radiological risk compared to operating reactors.
On June 28, 2000, the NRC staff submitted SECY-00-0145,
``Integrated Rulemaking Plan for Nuclear Power Plant Decommissioning,''
to the Commission (ADAMS Accession No. ML003721626). In this paper, the
NRC staff proposed an integrated decommissioning rulemaking plan and
requested Commission approval to proceed with developing an integrated
rulemaking for nuclear power plant decommissioning in accordance with
the recommendations detailed in the rulemaking plan. The paper
addressed the regulatory areas of EP, insurance, safeguards, staffing
and training, and backfitting for decommissioning nuclear power
reactors. The rulemaking plan was contingent on the completion of a SFP
zirconium fire risk study. The Commission responded to SECY-00-0145 in
an SRM dated September 27, 2000 (ADAMS Accession No. ML003754381). The
Commission returned that SECY to the staff without a vote on the
rulemaking plan pending further developments in the area and requested
that the staff submit a revised paper to the Commission.

D. Spent Fuel Pool Studies

In the late 1990s and early 2000s, the NRC was assessing the risk
of an SFP accident at a nuclear power reactor site in decommissioning.
Following the removal of spent fuel from the reactor, the principal
radiological risks are associated with the storage of spent fuel on
site. Generally, a few months after the reactor has been permanently
shut down and defueled, there are no possible design-basis accidents
that could result in a radiological release exceeding the limits
established by the U.S. Environmental Protection Agency (EPA) early-
phase Protective Action Guides (PAGs) at the exclusion area boundary
(EPA-400-R-92-001, ``Manual of Protective Action Guides And Protective
Actions For Nuclear Incidents,'' issued May 1992, and final revision
EPA-400/R-17/001, ``PAG Manual: Protective Action Guides and Planning
Guidance for Radiological Incidents,'' issued January 2017). The only
SFP accident scenario that might lead to a release with offsite
consequences exceeding the PAGs at a decommissioning reactor is a
zirconium fire. The zirconium fire scenario is a postulated, but highly
unlikely, beyond-design-basis accident scenario that involves a major
loss of water inventory from the SFP, resulting in a significant heatup
of the spent fuel, and culminating in substantial zirconium cladding
oxidation, fire, and fuel damage. The significance of spent fuel heatup
scenarios that might result in a zirconium fire depends on the decay
heat of the irradiated fuel stored in the SFP. Therefore, the
probability of a zirconium fire scenario continues to decrease as a
function of the time that the decommissioning reactor has been
permanently shut down and defueled.
In the 1980s, the NRC examined the risk of an SFP accident as
Generic Safety Issue 82, ``Beyond Design Basis Accidents in Spent Fuel
Pools,'' because of the increased use of high-density storage racks and
laboratory studies that indicated the possibility of a zirconium fire
spreading between assemblies in an air-cooled environment (see Section
3 of NUREG-0933, ``Resolution of Generic Safety Issues,'' issued
December 2011 (available at <a href="https://www.nrc.gov/sr0933/Section%203.%20New%20Generic%20Issues/082r3.html">https://www.nrc.gov/sr0933/Section%203.%20New%20Generic%20Issues/082r3.html</a>)). The risk assessment
and cost benefit analyses developed through this effort (Section 6.2 of
NUREG-1353, ``Regulatory Analysis for the Resolution of Generic Issue
82, `Beyond Design Basis Accidents in Spent Fuel Pools,' '' issued
April 1989 (ADAMS Accession No. ML082330232)) concluded that the risk
of a severe accident in the SFP was low and appeared to meet the public
health objectives of the Commission's Safety Goal Policy Statement (51
FR 30028; August 21, 1986) and that no new regulatory requirements were
warranted.
To support the rulemaking for decommissioning nuclear power plants
in the late 1990s, the NRC reevaluated the risk of an SFP accident. The
NRC's assessment in NUREG-1738, ``Technical Study of Spent Fuel Pool
Accident Risk at Decommissioning Nuclear Power Plants,'' issued
February 2001 (ADAMS Accession No. ML010430066), conservatively assumed
that if the water level in the SFP dropped below the top of the spent
fuel, an SFP zirconium fire involving all of the spent fuel would occur
and thereby bounded those conditions associated with air cooling of the
fuel (including partial draindown scenarios) and fire propagation. Even
with this conservative assumption, the study found the risk of an SFP
fire to be low and well within the Commission's safety goals.
Although NUREG-1738 did not completely rule out the possibility of
a zirconium fire, it did demonstrate that storage of spent fuel in a
high-density configuration in SFPs is safe and that the risk of
accidental release of a significant amount of radioactive material to
the environment is low. The study used simplified and sometimes
bounding assumptions and models to characterize the likelihood and
consequences of beyond-design-basis SFP accidents. Subsequent NRC
regulatory activities and studies (described in more detail in this
section) have reaffirmed the safety and security of spent fuel stored
in pools and have demonstrated that SFPs are effectively designed to
prevent accidents and minimize damage from malevolent attacks.
In the wake of the terrorist attacks of September 11, 2001, the NRC
took several actions to further reduce the possibility of an SFP fire.
The NRC issued immediately effective nonpublic orders (see the cover
letter at ADAMS Accession No. ML020510637) that required licensees to
implement additional security measures, including increased patrols,
augmented security forces and capabilities, and more restrictive site-
access controls to reduce the likelihood of an SFP accident resulting
from a terrorist-initiated event. A memorandum to the Commission

[[Page 12261]]

titled, ``Documentation of Evolution of Security Requirements at
Commercial Nuclear Power Plants with Respect to Mitigation Measures for
Large Fires and Explosions,'' dated February 4, 2010 (ADAMS Accession
No. ML092990438), provides a comprehensive discussion of these actions,
some of which specifically address SFP safety and security.
New requirements to mitigate a postulated loss of SFP water
inventory were also implemented following the terrorist attacks of
September 11, 2001; these requirements resulted in enhanced spent fuel
coolability and the potential to recover SFP water level and cooling
prior to a postulated SFP zirconium fire. Based on the implementation
of these additional strategies, the probability and, accordingly, the
risk to the public health and safety of an SFP zirconium fire scenario
has decreased and is expected to be less than previously analyzed in
NUREG-1738 and previous studies.
After the events of September 11, 2001, the NRC also addressed by
order the issue of potential aircraft impacts to the SFP by requiring
licensees to have in place mitigating strategies for large fires or
explosions at nuclear power plants. The Nuclear Energy Institute (NEI)
provided detailed guidance in NEI 06-12, Revision 2, ``B.5.b Phase 2 &
3 Submittal Guideline,'' dated December 2006 (ADAMS Accession No.
ML070090060). The NRC found this guidance acceptable for use as
documented in NUREG-0800, ``Standard Review Plan for the Review of
Safety Analysis Reports for Nuclear Power Plants: LWR Edition,''
Section 19.4, ``Strategies and Guidance to Address Loss of Large Areas
of the Plant Due to Explosions and Fires,'' Revision 0, dated June 2015
(ADAMS Accession No. ML13316B202). The NRC's issuance of the final rule
titled, ``Power Reactor Security Requirements,'' on March 27, 2009 (74
FR 13926), made the requirements of the order generically applicable.
In that final rule, the NRC added Sec. 50.54(hh)(2) to require
licensees to develop and implement guidance and strategies to, among
other things, maintain or restore SFP cooling capability in the event
of loss of large areas of the plant resulting from fires or explosions,
which further decreases the probability of an SFP fire.
Under Sec. 50.54(hh)(2), nuclear power reactor licensees are
required to implement strategies such as those provided in NEI 06-12.
The NEI guidance specifies that portable, power independent pumping
capabilities must be able to provide at least 500 gallons per minute of
bulk water makeup to the SFP and at least 200 gallons per minute of
water spray to the SFP. Recognizing that the SFP is more susceptible to
a release when the spent fuel is in a nondispersed configuration (i.e.,
fuel assemblies with more decay heat are not dispersed among fuel
assemblies with less decay heat), the guidance also specifies that the
portable equipment should be capable of being deployed within 2 hours
for a nondispersed configuration.
Further, other organizations, such as Sandia National Laboratories
(SNL), have confirmed the effectiveness of the additional mitigation
strategies to maintain spent fuel cooling in the event that the pool is
damaged and its initial water inventory is reduced or lost entirely.
The analyses conducted by SNL (collectively referred to as the ``Sandia
studies'') are sensitive security-related information and are not
available to the public. The Sandia studies considered spent fuel
loading patterns and other aspects of a pressurized water reactor SFP
and a boiling water reactor SFP, including the role that the
circulation of air plays in the cooling of spent fuel when there is a
partial or complete loss of water. The Sandia studies indicated that
there is a significant amount of time between the initiating event
(i.e., the event that causes the SFP water level to drop) and the point
at which the spent fuel assemblies become partially or completely
uncovered. In addition, the Sandia studies indicated that for those
hypothetical conditions in which air cooling may not be effective in
preventing a zirconium fire, there is a significant amount of time
between the spent fuel becoming uncovered and the possible onset of
such a zirconium fire, thereby providing a substantial opportunity for
event mitigation. The Sandia studies, which account for relevant heat
transfer and fluid flow mechanisms, also indicated that air cooling
spent fuel could be sufficient to prevent SFP zirconium fires at a
point much earlier following fuel offload from the reactor than
previously considered in NUREG-1738.
In NUREG-2161, ``Consequence Study of a Beyond-Design-Basis
Earthquake Affecting the Spent Fuel Pool for a U.S. Mark I Boiling
Water Reactor,'' issued September 2014 (ADAMS Accession No.
ML14255A365), the NRC evaluated the potential benefits of strategies
required in Sec. 50.54(hh)(2). The report explains that successful
implementation of mitigation strategies significantly reduces the
likelihood of a release from the SFP in the event of a loss of cooling
water. Additionally, the NRC found that the placement of spent fuel in
a dispersed configuration in the SFP would have a positive effect in
promoting natural circulation, which enhances air coolability and
thereby reduces the likelihood of a release from a completely drained
SFP. The NRC issued Information Notice 2014-14, ``Potential Safety
Enhancements to Spent Fuel Pool Storage,'' dated November 14, 2014
(ADAMS Accession No. ML14218A493), to all nuclear power reactor and
ISFSI licensees to inform them of the insights from NUREG-2161. This
information notice describes the benefits of storing spent fuel in more
favorable configurations, placing spent fuel in dispersed patterns
immediately after core offload, and taking action to improve mitigation
strategies.
In 2013, the NRC documented a regulatory analysis in COMSECY-13-
0030, ``Staff Evaluation and Recommendation for Japan Lessons Learned
Tier 3 Issue on Expedited Transfer of Spent Fuel'' (ADAMS Accession No.
ML13329A918), which considered a broad history of the NRC's oversight
of spent fuel storage and SFP operating experience (domestic and
international) and relied on information compiled in NUREG-2161. In
COMSECY-13-0030, the NRC staff concluded that SFPs are robust
structures with large safety margins and recommended to the Commission
that further regulatory actions to require the expedited transfer of
spent fuel from SFPs to dry cask storage were not warranted. The
Commission subsequently approved the staff's recommendation in SRM-
COMSECY-13-0030, dated May 23, 2014 (ADAMS Accession No. ML14143A360).
In addition, in response to the Fukushima Dai-ichi accident, the
NRC implemented additional regulatory actions to further enhance
reactor and SFP safety. On March 12, 2012, the NRC issued two orders:
Order EA-12-051, ``Order Modifying Licenses with Regard to Reliable
Spent Fuel Pool Instrumentation'' (ADAMS Accession No. ML12054A679),
and Order EA-12-049, ``Order Modifying Licenses with Regard to
Requirements for Mitigation Strategies for Beyond-Design-Basis External
Events'' (ADAMS Accession No. ML12054A735). Order EA-12-051 required
licensees to install reliable means of remotely monitoring wide-range
SFP levels to support effective prioritization of event mitigation and
recovery actions in the event of a beyond-design--basis external event.
Although the primary purpose of the order was to ensure that operators
were not distracted by uncertainties related to SFP conditions during
the accident

[[Page 12262]]

response, the improved monitoring capabilities would help in the
diagnosis and response to potential losses of SFP integrity. Order EA-
12-049 required licensees to, among other actions, develop, implement,
and maintain guidance and strategies to maintain or restore SFP cooling
capabilities independent of normal alternating current power systems
following a beyond-design-basis external event. Further, the NRC issued
the Mitigation of Beyond-Design-Basis Events final rule on August 9,
2019 (84 FR 39684), which made these two orders generically applicable
and moved the requirements of Sec. 50.54(hh)(2) to paragraph (b)(2) of
the new Sec. 50.155, ``Mitigation of beyond-design-basis events.''
These requirements ensure that a more reliable and robust mitigation
capability is in place to address degrading conditions in SFPs
resulting from certain significant, but unlikely, events.
The additional mitigation strategies implemented after the
terrorist attacks of September 11, 2001, such as the issuance of Sec.
50.54(hh)(2) (now Sec. 50.155(b)(2)) and the NRC's review and approval
of NEI 06-12, and the issuance of Orders EA-12-049 and EA-12-051, made
generically applicable as Sec. 50.155(b)(1) and Sec. 50.155(e),
following the Fukushima Dai-ichi accident enhance spent fuel
coolability and the potential to recover SFP water level and cooling
before the initiation of a potential SFP zirconium fire. The Sandia
studies also confirmed the effectiveness of additional mitigation
strategies to maintain spent fuel cooling in the event that the pool is
drained. Based on this information and the implementation of additional
strategies, the probability of an SFP zirconium fire initiation in a
draindown event is expected to be less than that reported in NUREG-1738
and previous studies and therefore well within the Commission's
expressed safety goals, as described previously.

E. Changes in Nuclear Power Reactor Decommissioning at the NRC and
Within the Nuclear Power Industry

On June 4, 2001, the NRC staff submitted SECY-01-0100, ``Policy
Issues Related to Safeguards, Insurance, and Emergency Preparedness
Regulations at Decommissioning Nuclear Power Plants Storing Fuel in
Spent Fuel Pools'' (ADAMS Accession No. ML011450420), to the
Commission. Before the Commission responded to SECY-01-0100, the
terrorist attacks of September 11, 2001, occurred. Given the security
implications of those events and the results of the NUREG-1738
zirconium fire risk study that showed the risk of an SFP fire to be low
and well within the Commission's safety goals, the NRC later redirected
its rulemaking priorities and resources to focus on programmatic
regulatory changes related to safeguards and security. In a memorandum
to the Commission titled, ``Status of Regulatory Exemptions for
Decommissioning Plants,'' dated August 16, 2002 (ADAMS Accession No.
ML030550706), the NRC staff justified this redirection in part by
observing that no additional permanent nuclear power reactor shutdowns
were anticipated in the foreseeable future and that no immediate need
existed to proceed with the decommissioning regulatory improvement work
that was planned. The NRC staff concluded that, if any additional
nuclear power reactors permanently shut down after the rulemaking
effort was suspended, establishment of the decommissioning regulatory
framework would continue to be addressed for each facility through the
license amendment and exemption processes.
Between 1998 and 2013, no nuclear power reactors permanently ceased
operation. Between 2013 and 2021, however, 12 nuclear power reactors
permanently shut down, defueled, and entered decommissioning. Notably,
in 2013, four nuclear power reactor units permanently shut down without
significant advance notice or preplanning: Crystal River Unit 3 Nuclear
Generating Plant (Duke Energy Florida); Kewaunee Power Station
(Dominion Energy); and San Onofre Nuclear Generating Station (SONGS),
Units 2 and 3 (Southern California Edison). In addition, on December
29, 2014, Entergy Nuclear Operations, Inc. (Entergy) permanently ceased
operations at the Vermont Yankee Nuclear Power Station (VY); on October
24, 2016, the Omaha Public Power District permanently ceased operations
at Fort Calhoun Station, Unit 1; on September 17, 2018, Exelon
Generation Company, LLC (Exelon) permanently ceased operations at
Oyster Creek Nuclear Generating Station; on May 31, 2019, Entergy
permanently ceased operations at Pilgrim Nuclear Power Station; on
September 20, 2019, Exelon permanently ceased operations at Three Mile
Island, Unit 1; on April 30, 2020, and April 30, 2021, respectively,
Entergy permanently ceased operations at Indian Point Nuclear
Generating, Unit Nos. 2 and 3; and on August 10, 2020, NextEra Energy
Duane Arnold, LLC (NextEra) permanently ceased operations of Duane
Arnold Energy Center. Licensees have also announced plans for
additional near-term permanent shutdowns, including Palisades Nuclear
Plant (Entergy) and Diablo Canyon Power Plant, Units 1 and 2 (Pacific
Gas & Electric Co.).
Decommissioning reactor licensees and the NRC have expended
substantial resources processing licensing actions for nuclear power
reactors during their transition period to decommissioning status.
Consistent with the nuclear power reactors that permanently shut down
in the 1990s, the licensees that are currently transitioning to
decommissioning have been requesting NRC review and approval of
licensing actions, informed by the low risk of an offsite radiological
release posed by a decommissioning reactor. Specifically, the licensees
are seeking NRC approvals of exemptions from requirements and license
amendments to reflect the reduced operations and radiological risks
posed by a permanently shutdown and defueled nuclear power reactor.

F. Decommissioning Lessons Learned Report

In October 2016, the NRC published the ``Power Reactor Transition
from Operations to Decommissioning: Lessons Learned Report'' (ADAMS
Accession No. ML16085A029). The report documents the lessons learned by
the NRC and stakeholders associated with permanent nuclear power
reactor shutdowns during the period from 2013 to 2016. In particular,
the report focuses on the transition from reactor operations to
decommissioning for Kewaunee, Crystal River Unit 3, SONGS Units 2 and
3, and VY. The transition process includes the NRC's review and
approval of certain requests for exemptions from the NRC's regulations
and for license amendments to modify the operating reactors' licensing
bases to reflect those of decommissioning reactors. After these actions
are complete, the NRC then transfers the project management and
oversight responsibility from its Office of Nuclear Reactor Regulation
to its Office of Nuclear Material Safety and Safeguards (NMSS). Project
management support is provided by NMSS for these decommissioning
reactors until license termination. The report also provides a number
of best practices identified from recent experience with reactor
shutdowns and the transition to decommissioning.
The report highlights some of the challenges experienced by the NRC
during the decommissioning transition licensing reviews from 2013 to
2016 and the NRC's actions to address those challenges. The report also
discusses external stakeholders' interest in the NRC's review of the
decommissioning transition licensing activities, especially

[[Page 12263]]

those associated with SONGS Units 2 and 3 and VY, as represented by
requests for hearings, public meetings, and questions to the NRC staff.
In addition to the lessons learned and best practices, the report
provides detailed project management guidance, recommendations, and
documentation of precedent related to the reviews and evaluations
specific to the types of licensing actions that the NRC expects to be
processed during the decommissioning transition period, including
oversight activities and communications. The NRC considered many of the
lessons learned and recommendations described in this report during the
development of this proposed rule.

G. Initiation of This Proposed Rule

In light of the number of licensees deciding to permanently shut
down their nuclear power reactors, the Commission directed the NRC
staff to proceed with an integrated rulemaking on nuclear power reactor
decommissioning in an SRM dated December 30, 2014 (ADAMS Accession No.
ML14364A111), associated with SECY-14-0118, ``Request by Duke Energy
Florida, Inc., for Exemptions from Certain Emergency Planning
Requirements,'' dated October 29, 2014 (ADAMS Accession No.
ML14219A444). The Commission further stated that this rulemaking should
address:
<bullet> Issues discussed in SECY-00-0145 such as the graded
approach to EP;
<bullet> Lessons learned from the plants that have already gone
through (or are currently going through) the decommissioning process;
<bullet> The advisability of requiring a licensee's PSDAR to be
approved by the NRC;
<bullet> The appropriateness of maintaining the three existing
options for decommissioning (DECON, SAFSTOR, and ENTOMB) \2\ and the
timeframes associated with those options;
---------------------------------------------------------------------------

\2\ Additional information about the existing options for
decommissioning is available in NUREG/BR-0521, Rev. 1,
``Decommissioning Nuclear Power Plants,'' dated June 2017 (ADAMS
Accession No. ML17177A253).
---------------------------------------------------------------------------

<bullet> The appropriate role of State and local governments and
non-governmental stakeholders in the decommissioning process; and
<bullet> Any other issues deemed relevant by the NRC staff.
In SECY-15-0014, ``Anticipated Schedule and Estimated Resources for
a Power Reactor Decommissioning Rulemaking,'' dated January 30, 2015
(ADAMS Accession No. ML15082A089, redacted), the NRC staff committed to
proceed with a rulemaking on nuclear power reactor decommissioning and
provided an anticipated schedule and estimate of the resources required
for the completion of a decommissioning rulemaking.

H. Advance Notice of Proposed Rulemaking

To begin the nuclear power reactor decommissioning rulemaking
process, the NRC published an advance notice of proposed rulemaking
(ANPR) in the Federal Register on November 19, 2015 (80 FR 72358). In
the ANPR, the NRC sought public comment on specific questions and
issues with respect to possible revisions of the NRC's decommissioning
requirements. The NRC staff considered the comments received on the
ANPR in its formulation of a draft regulatory basis for further
regulatory action. Section 5 of the draft regulatory basis (ADAMS
Accession No. ML17047A413) summarizes the public comments received on
the ANPR.

I. Regulatory Basis

The NRC published the draft regulatory basis in the Federal
Register on March 15, 2017 (82 FR 13778). In the draft regulatory
basis, the NRC staff presented draft recommendations for amendments to
the NRC's regulations and guidance development to provide regulatory
improvements for nuclear power reactors transitioning to
decommissioning. The NRC requested public comment on these
recommendations and asked specific questions regarding other possible
revisions of the NRC's requirements. In addition, the NRC published a
preliminary draft regulatory analysis on May 9, 2017 (82 FR 21481). The
NRC held a public meeting from May 8-10, 2017, to discuss the draft
regulatory basis and the associated preliminary draft regulatory
analysis and issued a summary of the meeting on November 15, 2017
(ADAMS Accession No. ML17157B211).
The NRC received 40 public comment submissions on the draft
regulatory basis and preliminary draft regulatory analysis, which it
considered in its formulation of the revised regulatory basis. The NRC
published a Federal Register notice announcing the public availability
of the regulatory basis on November 27, 2017 (82 FR 55954).\3\
---------------------------------------------------------------------------

\3\ At the time of publication of the regulatory basis, the
rulemaking title was ``Regulatory Improvements for Power Reactors
Transitioning to Decommissioning.'' During the development of the
proposed rule, the scope of the rulemaking expanded to include all
production and utilization facilities licensed under 10 CFR parts 50
and 52. In order to reflect this change, the NRC has changed the
title of the rulemaking to ``Regulatory Improvements for Production
and Utilization Facilities Transitioning to Decommissioning.''
---------------------------------------------------------------------------

III. Discussion

A. Current Regulatory Process

Decommissioning requirements for production and utilization
facilities are codified in Sec. Sec. 50.82 and 52.110. Associated
decommissioning funding requirements are codified in Sec. Sec. 50.75,
50.82, and 52.110. A nuclear power reactor licensee formally begins the
decommissioning process when it certifies its permanent cessation of
operations and permanent removal of fuel from the reactor vessel under
Sec. Sec. 50.82(a)(1) or 52.110(a). Once the NRC dockets these
certifications, under Sec. 50.82(a)(2) or Sec. 52.110(b), the 10 CFR
part 50 or 10 CFR part 52 license no longer authorizes operation of the
reactor or emplacement or retention of fuel in the reactor vessel.
Despite this withdrawal of authority to operate the reactor, a
decommissioning nuclear power plant continues to retain a license under
10 CFR part 50 or 10 CFR part 52. For this reason, the decommissioning
plant continues to be subject to many of the requirements that apply to
plants authorized to operate under 10 CFR part 50 or 10 CFR part 52.
Regulations that are designed to protect the public against reactor
operation related design-basis events that include conditions of normal
operation, anticipated operational occurrences, and design-basis
accidents (DBAs) are no longer applicable at a permanently shutdown and
defueled reactor. For example, certain accident sequences for a nuclear
power reactor that is operating, such as loss of coolant accidents and
anticipated transients without scram, are no longer relevant to a
permanently shutdown and defueled reactor. In addition, some
regulations may not be relevant to certain SSCs because the SSCs are no
longer required to be maintained, to operate, or to mitigate certain
accidents, events, or transients, regardless of whether they are
safety-related or security-related SSCs. Other regulations, although
based on power operation of the plant, may continue to be applicable to
the permanently defueled facility for a limited time, such as the
standards for offsite radiological emergency preparedness (REP) plans
under 10 CFR part 50 or 10 CFR part 52. Typically, the scope of NRC
requirements can be reduced to those regulations and requirements that
primarily pertain to the safe storage of the spent fuel in the SFP, as
described in the site's final safety analysis report (FSAR).

[[Page 12264]]

Upon permanent cessation of reactor operations and removal of fuel
from the reactor vessel, the licensee is likely to submit a significant
number of licensing actions (license amendment and exemption requests)
to the NRC for review and approval based primarily on the reduced
radiological risk to public health and safety. As discussed previously
in this document, the types of potential accidents at decommissioning
reactors are fewer, and the risks of radiological releases are reduced,
when compared to those at an operating reactor. Therefore, to reflect
this reduction in risk, licensees of decommissioning reactors typically
request certain amendments to their licenses and certain exemptions
from the NRC's regulations. These licensing actions, which are
processed by the NRC during licensees' transition from operating to
decommissioning status, establish the regulatory framework for reactors
that have permanently shut down and defueled.
For non-power reactor facilities, Sec. 50.82(b) requires that the
licensee apply for license termination within two years following
permanent cessation of operation. Each application for termination of a
license must be accompanied, or preceded, by a proposed decommissioning
plan (DP). In addition to the DP required by Sec. 50.82, Sec.
50.75(f)(4) requires each licensee to submit a preliminary DP. The
preliminary DP must be submitted at or about 2 years before the
projected end of operation. In addition to the DP, Sec. 51.53(d)
requires each applicant for a license amendment approving a DP to
submit a supplement to its environmental report (ER).
The decommissioning process for non-power reactor licensees begins
with the removal of fuel as soon as possible after reactor operations
permanently cease and the shipment of the fuel offsite in accordance
with the U.S. Department of Energy, NRC, and U.S. Department of
Transportation regulations. Under some circumstances, the licensee can
apply for a possession-only license amendment under Sec. 50.90,
``Application for amendment of license, construction permit, or early
site permit,'' after operations have ended and before decommissioning
starts. The possession-only license amendment limits the licensee's
authority to possessing specific nuclear material but does not
authorize its use or the operation of a nuclear facility. If granted, a
possession-only license amendment provides regulatory relief from the
license and technical specification (TS) requirements for a non-power
reactor in decommissioning. Further, the possession-only amendment
permits the licensee to retain the facility, related radioactive
byproduct material, and, in some cases, special nuclear material,
pending approval of the DP.
In addition to requesting license amendments and exemptions,
nuclear power reactor licensees can make certain changes without prior
NRC approval if the changes are permitted by an NRC regulation.
Licensees primarily use an evaluation process with criteria in Sec.
50.59 to make changes in a facility (or procedures) as described in the
FSAR (as updated), including changes to the PSDAR, without prior NRC
approval. The licensee's updated FSAR should reflect changes to the
decommissioning design-basis analyses, SSCs, and the licensee's
organizations, processes, and procedures. Licensees can also make
changes without prior NRC approval as described in Sec. 50.54(p) and
Sec. 50.54(q). In the case of non-power reactor facilities, the DP,
which is put into effect with an order, provides for accommodation of
any necessary changes in the DP and procedures through a process
similar to the one in Sec. 50.59.
The timing and implementation for some decommissioning licensing
actions rely on an approach that recognizes the reduction in
radiological risk after permanent cessation of power operation and
removal of fuel from the reactor vessel. These risk reductions can be
tied to several factors, including, but not limited to: (1) Reduction
of the radiological source term after cessation of power operation and
removal of fuel from the reactor vessel, (2) elapsed time after
permanent shutdown, and (3) type of long-term onsite fuel storage. The
two areas where these additional risk reductions are considered in the
early decommissioning process are EP and facility insurance and
indemnity. The NRC will not approve exemptions from EP and insurance
coverage requirements until analyses confirm that there are no DBAs
that would require protective actions for the public resulting from a
release of radioactive material with a dose exceeding the EPA's PAGs at
the exclusion area boundary. The analyses also must assess a postulated
beyond-design-basis zirconium fire scenario.

B. Objectives of This Proposed Rule

This proposed rule would amend the current requirements for
production and utilization facility licensees during decommissioning.
Experience has demonstrated that licensees for decommissioning nuclear
power reactors seek several exemptions and license amendments per site
to establish a long-term licensing basis for decommissioning. Non-power
production or utilization facility licensees typically seek license
amendments in decommissioning to change their 10 CFR part 50 operating
licenses to possession-only licenses. By issuing this rule, the NRC
would establish regulations that would maintain safety and security at
sites transitioning to decommissioning without the need to grant
specific exemptions or license amendments in certain regulatory areas.
Specifically, the decommissioning rulemaking would: (1) Propose a
regulatory regime that continues to provide reasonable assurance of
adequate protection of public health and safety and the common defense
and security at decommissioning sites; (2) ensure that the requirements
for decommissioning are clear and appropriate; (3) adopt regulations to
address generic issues applicable to all decommissioning nuclear power
reactors that have historically been addressed through similarly worded
exemptions or license amendments; and (4) identify, define, and resolve
additional areas of concern related to the regulation of
decommissioning licensees under 10 CFR parts 50 and 52.
Given that the current regulatory framework regarding
decommissioning is adequate to protect public health and safety and the
common defense and security, many of the new requirements proposed by
this rulemaking are alternatives to the current requirements.

C. Applicability

This proposed rule would apply to the following categories of
license holders:

<bullet> Nuclear power reactors currently licensed under 10 CFR part 50
<bullet> Future nuclear power reactors licensed under 10 CFR part 50
<bullet> Nuclear power reactors currently licensed under 10 CFR part 52
<bullet> Future nuclear power reactors licensed under 10 CFR part 52
<bullet> Non-power production or utilization facilities and fuel
reprocessing plants currently licensed under 10 CFR part 50
<bullet> Future non-power production or utilization facilities and
fuel reprocessing plants licensed under 10 CFR part 50

D. Applicability to NRC Licensees During Operations

The proposed rule includes changes in three areas that would apply
to NRC licensees during operations: (1) The process to change a
licensee's security plan, (2) the timing of decommissioning

[[Page 12265]]

funding assurance reporting requirements, and (3) identification of 10
CFR 26.3, ``Scope,'' as a regulation with substantive requirements that
could result in criminal penalties if violated.
The NRC's regulations in Sec. 50.54(p) establish processes that
allow licensees to make changes to their security plans. The NRC is
proposing that all nuclear power reactor licensees making a change
under Sec. 50.54(p)(2) submit in their report of the change a summary
of any analysis that was completed to make the determination that the
change does not decrease the safeguards effectiveness of the security
plan. Additionally, the NRC is proposing to revise Sec. 50.54(p) to
include definitions of the terms ``change'' and ``decrease in
safeguards effectiveness.'' The application of these definitions is
limited to use with the revised Sec. 50.54(p) and will apply to all
holders of 10 CFR part 50 operating licenses and 10 CFR part 52
combined licenses.
The proposed rule would change the timing of the decommissioning
funding assurance reporting requirements in Sec. 50.75(f)(1) to
coordinate them with the ISFSI decommissioning reporting requirements
in Sec. 72.30, ``Financial assurance and recordkeeping for
decommissioning.'' This change would convert the biennial
decommissioning funding status report required for 10 CFR part 50 and
10 CFR part 52 nuclear power reactor licensees to a triennial
decommissioning funding status report as currently required for 10 CFR
part 72 ISFSI licensees.
Current Sec. 26.3 includes a substantive requirement and
violations of this regulation should be subject to criminal penalties.
Therefore, this proposed rule would remove Sec. 26.3 from the list of
provisions that are not subject to criminal penalties if violated in
Sec. 26.825(b).

E. Applicability to ISFSI-Only and Standalone ISFSI/Decommissioned
Reactor Sites

During the public comment period for the draft regulatory basis,
the NRC received many comments on the applicability of the
decommissioning rulemaking to ``standalone ISFSI'' \4\ sites where the
associated reactor has already been decommissioned in comparison with
``ISFSI-only'' sites. As part of this rulemaking effort, the NRC
recommends standardizing the terms ``ISFSI-only'' and ``standalone
ISFSI/Decommissioned Reactor'' as follows:
---------------------------------------------------------------------------

\4\ Given that the public comments referred to ``standalone
ISFSIs,'' this proposed rule uses that same terminology. However, in
accordance with Inspection Manual Chapter 2690, ``Inspection Program
for Dry Storage of Spent Reactor Fuel at Independent Spent Fuel
Storage Installations and for 10 CFR part 71 Transportation
Packagings,'' dated March 9, 2012, the NRC uses the term ``away-
from-reactor (AFR) ISFSI'' to refer to ``any general licensed ISFSI
where decommissioning and final survey activities related to reactor
operations are completed and the only remaining operation conducted
under the 10 CFR part 50 license is the operation of the general
licensed ISFSI.''
---------------------------------------------------------------------------

<bullet> ``ISFSI-only'' sites contain nuclear power reactor
facilities that are still involved in decommissioning activities, but
the spent fuel has been completely transferred from the SFPs to dry
storage in an onsite ISFSI. For these facilities, the remaining
decommissioning activities are primarily related to remediation of any
remaining residual radioactivity at the site to meet the license
termination and decommissioning criteria in 10 CFR part 20, subpart E.
The ``ISFSI-only'' term refers to the location of the spent fuel; the
term reflects that no spent fuel is stored in the SFP, and all of the
spent fuel is in dry storage in an onsite ISFSI.
<bullet> ``Standalone ISFSI/Decommissioned Reactor'' sites are
those former nuclear power reactor facilities where the license
termination and decommissioning criteria in 10 CFR part 20, subpart E,
have already been met, with the exception of the ISFSI area. The
licensee's 10 CFR part 50 license for the site has been reduced to an
area that only encompasses the ISFSI facility (unless the facility
ISFSI is licensed under a 10 CFR part 72 specific license, in which
case the 10 CFR part 50 license is wholly terminated). The remaining
activities at these facilities that are regulated by the NRC are spent
fuel storage and the eventual decommissioning of the ISFSI itself, once
the spent fuel has been permanently removed from the site. A 10 CFR
part 72 specific license ISFSI is decommissioned in accordance with 10
CFR 72.54, ``Expiration and termination of licenses and decommissioning
of sites and separate buildings or outdoor areas.''
Accordingly, the proposed requirements would not apply to
standalone ISFSI/Decommissioned Reactor sites because those licensees
have already decommissioned their 10 CFR part 50 facilities and met the
decommissioning and license termination criteria in 10 CFR part 20,
subpart E, with the exception of the area encompassed by the remaining
ISFSI. The proposed requirements are consistent with the licensing
actions that the NRC has already approved for these licensees. In
addition, the proposed requirements of this rulemaking provide an
alternative to the existing decommissioning regulations and would not
impose new requirements on ISFSI-only licensees.

F. Graded Approach

As the NRC reviewed the exemption and license amendment requests
related to the recent nuclear power reactor decommissionings and noted
the growing list of future planned permanent shutdowns, as discussed in
the ``Background'' section of this document, the NRC realized that the
existing regulatory framework could and should be revised to provide
for a more efficient decommissioning process. As early as the late
1990's, the NRC contemplated an integrated rulemaking to provide an
appropriate graded approach to the decommissioning process. A graded
approach is a process by which the safety requirements and criteria
adjust during the decommissioning process commensurate with several
factors. These factors include the magnitude of any credible hazard
involved, the particular characteristics of a facility, and the balance
between radiological hazards and non-radiological hazards (e.g., fire,
flood, chemical spill) as applicable to specific points in time within
the decommissioning process. This approach would be a risk-informed
process.
Currently, no explicit regulatory provisions distinguish
requirements in several technical areas for a nuclear power reactor
that has permanently ceased operations from those for an operating
nuclear power reactor. To address this, the NRC is proposing to amend
its regulations to provide an efficient regulatory framework for the
transition to decommissioning. Under this proposed rule, the NRC would
adopt an optional graded approach for several technical areas that
provides a set of requirements commensurate with the reductions in
radiological risk at each of the following four levels of
decommissioning: (1) Permanent cessation of operations and permanent
removal of all fuel from the reactor vessel, (2) sufficient decay of
fuel in the SFP such that it would not reach ignition temperature for
the zirconium alloy cladding of the fuel within 10 hours under
adiabatic heatup conditions (i.e., a complete loss of SFP water
inventory with no heat loss), (3) transfer of all fuel to dry storage,
and (4) removal of all fuel from the site. Four technical areas of this
proposed rule (Emergency Preparedness, Physical Security, Cyber
Security, and Offsite and Onsite Insurance) use all or some of this
graded approach.

[[Page 12266]]

G. Technical Basis for Graded Approach

The NRC has approved exemptions from the emergency planning
regulations in Sec. 50.47, ``Emergency plans,'' and appendix E,
``Emergency Planning and Preparedness for Production and Utilization
Facilities,'' to 10 CFR part 50 at several permanently shutdown and
defueled nuclear power reactor sites. Licensees that have been granted
EP exemptions must maintain an onsite emergency plan addressing the
classification of an emergency, notification of emergencies to licensee
personnel and offsite authorities, and coordination with designated
offsite government officials following an event declaration so that, if
needed, offsite authorities may initiate appropriate response actions.
At the appropriate points in decommissioning, the EP exemptions may
also relieve the licensee from certain requirements of Sec. 50.47 and
appendix E to 10 CFR part 50 as they pertain to offsite radiological
EP, including the requirement to maintain the 10-mile plume exposure
pathway and the 50-mile ingestion pathway emergency planning zones
(EPZs). The NRC granted these exemptions based, in part, on its
determination that there are no applicable design-basis accidents at a
decommissioning licensee's facility that could result in an offsite
radiological release exceeding the limits established by the EPA's
early-phase PAGs at the exclusion area boundary.
The NRC also relied on analyses from NUREG-1738 that showed that
emergency planning would be of marginal benefit in reducing the risk of
a beyond-design-basis zirconium fire in the SFP if the accident evolved
slowly enough to allow mitigative measures and, if necessary, to allow
offsite protective actions to be implemented without preplanning. This
conclusion was based, in part, on the assumption that it would take at
least 10 hours for spent fuel to heat up to the temperature at which
the onset of fission product release is expected during an SFP rapid
draindown event. This 10-hour period would provide a substantial amount
of time for the licensee to take onsite mitigation measures and, if
necessary, for offsite authorities to take appropriate response actions
to protect the public. To support the approval of exemptions from
portions of the EP regulations, licensees had to demonstrate through
site-specific analyses that in a draindown event at their SFP the fuel
would not reach the zirconium fuel cladding ignition temperature for at
least 10 hours under adiabatic heatup conditions.
A 10-hour timeframe has been justified in the past for similar
purposes. In the Low Power Rule (47 FR 30232; July 13, 1982), the NRC
amended its regulations to clarify that no NRC or Federal Emergency
Management Agency (FEMA) review, findings, and determinations
concerning the state or adequacy of offsite emergency preparedness were
necessary for issuance of operating licenses authorizing fuel loading
and low power operation (i.e., up to 5 percent of rated power). The NRC
determined that several factors contributed to a substantial reduction
in risk and potential accident consequences for low power testing as
compared to the higher risks in continuous full power operation. These
factors included consideration of the reduced source term, the
capability of mitigation systems, and the time scale for taking actions
to identify and mitigate an accident. Even for a postulated low-
likelihood, design-basis accident during low power operations, which
eventually results in release of fission products into the containment,
at least 10 hours would be available to allow adequate precautionary
actions to be taken to protect the public near the site.
To support a graded approach during decommissioning, the NRC
further examined the certainty and margin provided by a 10-hour
timeframe for the fuel to heat up in relation to the time for taking
mitigating actions and appropriate EP response actions. The NRC
conducted an applied research study (``Transmittal of Reports to Inform
Decommissioning Plant Rulemaking for User Need Request NSIR-2015-001,''
dated May 31, 2016 (ADAMS Accession No. ML16110A416)) with three tasks:
(1) To perform a task analysis that includes a timeline of responder
actions at representative SFP configurations to mitigate a draindown
event and determine its likelihood of success, (2) to analyze
representative spent fuel to determine the decay time necessary for the
fuel to remain below zirconium clad ignition temperature for at least
10 hours assuming adiabatic heatup conditions, and (3) to analyze the
offsite dose rate from the radionuclides released during a hypothetical
spent fuel zirconium clad ignition accident. As demonstrated in these
analyses, for many initiating events at decommissioning reactors,
mitigative actions would have a high likelihood of preventing
uncontrolled spent fuel heatup. In cases where an uncontrolled heatup
is not prevented, the heatup would be relatively slow, providing
significant time before a radiological release. In the case of a
radiological release, dose rates would be low enough such that
significant additional time is available to take offsite actions to
protect the public.
The NRC's analysis of spent fuel decay times provided information
on the time required for fuel to heat up to 900 degrees Celsius (C)
(i.e., the temperature at which the onset of fission product release is
expected for a zirconium fuel cladding fire) as a function of decay
time for both pressurized water reactor (PWR) and boiling water reactor
(BWR) assemblies. The analysis also included sensitivities to the mass
of the racks and the fuel configuration in the SFP. The NRC notes that
the decay periods provided for PWRs and BWRs are based on studies that
consider current operating parameters in the nuclear power industry
(e.g., fuel types, enrichment, and fuel burnup levels). Based on this
analysis, the NRC concluded that after a decay period of 10 months for
BWRs or 16 months for PWRs, beginning when the reactor permanently
shuts down, the spent fuel cannot reasonably heat up to clad ignition
temperature within 10 hours after a draindown event. These decay
periods are based on an adiabatic heatup to 900 degrees C assuming the
decay heat value for the hottest assembly (as opposed to an average
assembly), a burnup of 60 gigawatt days per metric ton of heavy metal
(GWd/MTHM), and accounting for the mass of the racks. The analysis
assumption of 60 GWd/MTHM conservatively bounds current industry
burnups and enrichments for zirconium clad fuel and provides margin for
potentially higher burnup rates, up to 72 GWd/MTHM. This analysis does
not account for the additional time margin that would be provided if
additional cooling mechanisms were available or would be provided by a
more favorable SFP configuration such that the heat load is more
uniformly distributed.
The NRC's analysis of dose rates shows that even in the event of a
beyond-design-basis accident leading to a rapid draindown of the SFP
and subsequent zirconium fire, there would be additional time margin on
the order of several hours beyond the 10-hour heatup time during which
protective actions could be taken to protect the public before the dose
levels associated with EPA PAGs would be exceeded offsite.
In addition to the analyses performed by the NRC to support this
rulemaking, as discussed in the ``Background'' section of this
document, the conclusions of NUREG-2161 and NUREG-1738 support the
technical

[[Page 12267]]

basis for a graded approach during decommissioning as they provide
insight into the risk of an offsite release and the effectiveness of
mitigation measures.
<bullet> In NUREG-2161, the NRC considered various spent fuel
cooling mechanisms and additional heat from oxidation. Because previous
studies found that earthquakes present the dominant risk for SFPs, this
analysis considered a severe earthquake with ground motion stronger
than the maximum earthquake reasonably expected to occur for the
reference plant, which would challenge the SFP integrity. The study
considered two spent fuel configurations: High-density and low-density
loading. The study also analyzed two cases for each scenario: One that
credited the mitigation measures of Sec. 50.54(hh)(2) (i.e., the
strategies to maintain or restore SFP cooling in the event of a loss of
large areas of the plant as a result of fire or explosion), and one in
which those measures were not used or were unsuccessful. The study
results showed that successful mitigation reduces the likelihood of a
release and that the likelihood of a release was equally low for both
high- and low-density loading in the SFP. The study found that a
release is not expected to occur at the nuclear power reactor site
studied for at least 72 hours following a beyond-design-basis seismic
event that occurs more than 60 days after shutdown.
<bullet> In NUREG-1738, the NRC presented the results of its
evaluation of the potential accident risk for an SFP at a
decommissioning nuclear power reactor in the United States. NUREG-1738
identified a zirconium cladding fire resulting from a substantial loss
of water from the SFP as the only postulated scenario at a
decommissioning nuclear power reactor that could result in a
significant radiological release. While highly unlikely, the
consequences of such an accident could lead to an offsite dose in
excess of the EPA PAGs. Based on spent fuel storage design
characteristics and operating practices considered in the analysis, the
scenarios that lead to this condition have very low probabilities of
occurrence. Accordingly, these scenarios are considered to be beyond
the facility's design basis. Furthermore, as the spent fuel ages, the
generation of decay heat decreases. After a certain amount of time, the
overall risk of a zirconium fire becomes extremely low because of: (1)
The large amount of time available for preventive and mitigating
actions and (2) the increased probability that the decay heat will be
low enough that the fuel will be air-coolable in the post-event
configuration.

H. Levels of Decommissioning

Using the aforementioned analyses as its technical basis, the NRC
is proposing to amend its regulations to provide an efficient
regulatory framework during decommissioning using a graded approach in
several technical areas. This graded approach is commensurate with the
reductions in radiological risk at four levels of decommissioning:
(Level 1) permanent cessation of operations and permanent removal of
all fuel from the reactor vessel, (Level 2) sufficient decay of fuel in
the SFP such that it would not reach ignition temperature within 10
hours under adiabatic heatup conditions, (Level 3) transfer of all
spent fuel to dry storage, and (Level 4) removal of all fuel from the
site. These levels are discussed further as follows:
1. Level 1
Licensees in Level 1 include nuclear power reactor licensees that
have docketed certifications of permanent cessation of operations and
permanent removal of fuel from the reactor vessel pursuant to Sec.
50.82, ``Termination of license,'' or Sec. 52.110, ``Termination of
license.'' In this level, a decommissioning nuclear power reactor is
defueled and permanently shut down, but the spent fuel in the SFP is
still susceptible to a zirconium fuel cladding fire within 10 hours
under adiabatic heatup conditions.
2. Level 2
In Level 2, the reactor is defueled and permanently shut down, and
spent fuel in the SFP has decayed and cooled sufficiently such that it
cannot heat up to the zirconium cladding ignition temperature within 10
hours under adiabatic conditions. The NRC has determined that this
condition is reached after spent fuel has decayed for a minimum of
either 10 months for a BWR or 16 months for a PWR or an alternative
site-specific timeframe to be approved by the NRC. The decay period
could begin when the fuel is still in the reactor vessel but the
reactor has permanently ceased operations. In order to verify that a
licensee has met the condition, the NRC would rely upon the date of
permanent cessation of operation provided by a licensee under Sec.
50.4(b)(8) or Sec. 52.3(b)(8), updated as necessary under Sec. 50.9
or Sec. 52.6, both entitled ``Completeness and accuracy of
information.'' Because the identified date of permanent cessation of
operations would determine transition from Level 1 to Level 2, the NRC
would consider a change in the planned date initially certified to the
NRC for permanent cessation of operations to the actual date as
information ``having a significant implication for public health and
safety or common defense and security'' under Sec. 50.9 or Sec. 52.6.
At this point, the site may also possess a radioactive inventory of
liquid radiological waste, radioactive reactor components, and
contaminated structural materials. The radioactive inventory may
change, depending on the licensee's proposed shutdown activities and
schedule.
3. Level 3
In Level 3, all spent nuclear fuel (SNF) is in dry cask storage
pursuant to the terms and conditions of a license granted under 10 CFR
part 72, including the general license issued in Sec. 72.210. However,
the licensee may still hold a 10 CFR part 50 or 10 CFR part 52 license,
and the site may contain a radioactive inventory of liquid radiological
waste, radioactive reactor components, and contaminated structural
materials.
4. Level 4
At this point in the facility's life cycle, all SNF has been
removed from the site. The site may possess a radioactive inventory of
liquid radiological waste, radioactive reactor components, and
contaminated structural materials. The radioactive inventory during
this configuration may change, depending on the licensee's proposed
decommissioning activities and schedule.
As a facility transitions from being operational to having all SNF
in dry cask storage, the proposed rule's regulatory requirements are
graded to provide for reasonable assurance of the health and safety of
the public commensurate with the risk profile of the facility. Table 2
summarizes the proposed changes to decommissioning requirements in the
technical areas that use aspects of this graded approach.

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[GRAPHIC] [TIFF OMITTED] TP03MR22.000

IV. Scope of the Proposal

This rulemaking proposes revising requirements in 16 technical
areas.

A. Emergency Preparedness

1. Introduction
In 1978, an NRC and EPA task force established the planning basis
for EP for nuclear power reactor accidents in NUREG-0396, ``Planning
Basis for the Development of State and Local Government Radiological
Emergency Response Plans in Support of Light Water Nuclear Power
Plants'' (ADAMS Accession No. ML051390356). This guidance provides a
basis for offsite radiological EP efforts for large light-water nuclear
power reactor facilities. In NUREG-0396, the task force determined that
no single accident sequence should be identified as a planning basis
and chose to provide recommendations in terms of the consequences and
characteristics of accidents that would be important in determining the
extent of the planning effort. The task force concluded that the EP
planning basis requires consideration of a spectrum of accidents,
informed by probability considerations. The scope of the planning
effort was based on three key planning elements: (1) The distance to
which planning for the initiation of predetermined protective actions
is warranted, (2) the time-dependent characteristics of potential
releases and exposures, and (3) the kinds of radioactive materials that
can potentially be released to the environment. The risk-informed
planning basis for EP, established in NUREG-0396, was endorsed for use
in the NRC's policy statement, ``Planning Basis for Emergency Responses
to Nuclear Power Reactor Accidents,'' dated October 23, 1979 (44 FR
61123). This planning basis results in emergency plans that are
effective, regardless of the accident probability.
The rationale in NUREG-0396 and the planning basis elements can
also be applied to light water nuclear power reactors in
decommissioning to scope the planning effort. The NRC applied the
NUREG-0396 methodology (i.e., consideration of a spectrum of accident
consequences and the three key planning elements) to establish a graded
approach to EP for decommissioning nuclear power reactors that
maintains public health and safety. As discussed in NUREG-0396, no
single specific accident sequence should be isolated as the one for
which to plan because each accident could have different consequences,
both in nature and degree. Further, the range of possible selections
for a planning basis is very large, starting with a zero point of
requiring no planning at all, because significant offsite radiological
accident consequences are unlikely to occur to planning for the worst
possible accident regardless of its extremely low likelihood.
Fundamentally, the spectrum of possible accidents is significantly
smaller and the risk of an offsite radiological release is
significantly lower at a nuclear power facility that has permanently
shut down

[[Page 12269]]

and removed fuel from the reactor vessel than at an operating nuclear
power reactor. All such accidents would be associated with hazards
based on the storage of spent fuel, either in the SFP or in dry cask
storage, until its permanent removal from the site. In NUREG-1738, the
NRC found that the event sequences important to risk at decommissioning
sites are limited to large earthquakes and cask drop events. For EP
assessments, this is an important difference relative to operating
nuclear power reactors, where typically a large number of different
sequences make significant contributions to risk.
Although the NRC considered the full spectrum of accidents
applicable to a decommissioning nuclear power reactor, the number of
events that can have significant offsite consequences is greatly
reduced, and the events are dominated by the zirconium fire scenario--a
postulated, but highly unlikely, beyond-design-basis accident that
involves a major loss of water inventory from the SFP, resulting in a
significant heatup of the spent fuel and culminating in substantial
zirconium cladding oxidation, fire, and fuel damage. The guidance in
NUREG-0396 states that while it is not appropriate to develop specific
plans for the most severe and most improbable events, the
characteristics of these events should be considered ``in judging
whether emergency plans based primarily on smaller accidents can be
expanded to cope with larger events.'' This approach provides
reasonable assurance that capabilities exist to minimize the impacts of
even the most severe events. Consistent with this guidance, the NRC
considered the potential impacts of a zirconium fire, even with the
assurance that mitigating strategies are in place to prevent an offsite
release from occurring for this highly unlikely beyond-design-basis
event.
In addition to the three analyses performed by the NRC to support
this rulemaking (ADAMS Accession No. ML16110A416), the NRC has
previously conducted SFP studies, including NUREG-2161 and NUREG-1738,
the conclusions of which support the technical basis for a graded
approach to EP. Overall, these analyses: (1) Demonstrate that a period
of 10 hours provides sufficient time to implement mitigation measures
for design-basis events at decommissioning sites, (2) provide a
conservative basis for a spent fuel decay time beyond which the fuel in
the SFP can reasonably be expected to take longer than 10 hours to heat
up to ignition temperature, and (3) provide additional understanding of
the amount of time available for taking action in response to beyond-
design-basis events, including the margin of time that offsite agencies
have to decide upon and initiate actions to protect public health and
safety. The NRC applied these analyses and the considerations from
previous studies of SFP risk to the planning basis elements from NUREG-
0396 to develop the proposed regulations for EP at various levels
during decommissioning.
2. Graded Approach for Emergency Preparedness
A graded approach to EP has a longstanding regulatory history. The
16 planning standards for operating reactors, outlined in Sec.
50.47(b), and the associated evaluation criteria in NUREG-0654/FEMA-
REP-1, Revision 1, ``Criteria for Preparation and Evaluation of
Radiological Emergency Response Plans and Preparedness in Support of
Nuclear Power Plants,'' issued November 1980 (ADAMS Accession No.
ML040420012) or Revision 2 issued December 2019 (ADAMS Accession No.
ML19347D139), are one part of a continuum of planning standards for
radiological EP. The regulations in Sec. 50.47(c)(2) for case-by-case
EPZ size determinations; the EP regulations for research and test
reactors and other non-power production or utilization facilities, fuel
cycle facilities, and ISFSIs; and the EP considerations for small
modular reactors and other new technologies (see the Proposed Rule for
``Emergency Preparedness for Small Modular Reactors and Other New
Technologies'' (85 FR 28436 and 85 FR 32308)), are also part of a
graded approach to EP that is commensurate with the relative
radiological risk, source term, and potential hazards, among other
considerations.
Consistent with the concept of a graded approach, the NRC is
proposing four levels of emergency planning standards that coincide
with the same milestones as the graded approach:

<bullet> Post-Shutdown Emergency Plan (PSEP) (Level 1)
<bullet> Permanently Defueled Emergency Plan (PDEP) (Level 2)
<bullet> ISFSI-Only Emergency Plan (IOEP) (Level 3)
<bullet> No emergency planning (Level 4)

In developing this proposed rule, the NRC considered the
appropriateness of the EP requirements in 10 CFR part 50 and 10 CFR
part 72 for decommissioning sites, including those requirements that
have historically been addressed in approved exemptions and those that
have not. The proposed planning standards within the levels are based
on the current set of operating reactor EP standards informed by the
analyses and considerations supporting a graded approach to EP as
previously described, as well as public comments on the ANPR and on the
draft regulatory basis for this rulemaking. The NRC also considered the
criteria of safety, implementation costs, efficiency, transparency,
flexibility, and responsiveness. The following discussion describes the
proposed graded approach to EP.
Post-Shutdown Emergency Plan
For a decommissioning site, once all the fuel is in the SFP, the
spectrum of accidents that can have significant offsite consequences is
greatly reduced and is dominated by the highly unlikely occurrence of a
zirconium fire. The primary consideration for the planning basis for a
PSEP is the potential consequences and timing of this narrow spectrum
of accidents in relation to the time needed to initiate protective
actions.
From a regulatory perspective, the purpose of a PSEP is to provide
a transition period to ensure that an appropriate level of EP is
maintained onsite and offsite to respond to applicable DBAs and to
ensure a prompt response to the highly unlikely rapid draindown of the
SFP and subsequent zirconium fire and release occurring in less than 10
hours. A nuclear power reactor licensee would be permitted to
transition to a PSEP after the NRC's docketing of the licensee's
certifications of permanent cessation of operations and permanent
removal of fuel from the reactor vessel pursuant to Sec. Sec. 50.82 or
52.110. The NRC anticipates that licensees will maintain a PSEP from
the date that the NRC dockets the licensee's certifications of
permanent cessation of operations and permanent removal of fuel from
the reactor vessel, until the spent fuel has decayed for a period of at
least 10 months (for BWRs) or 16 months (for PWRs) from the date of
permanent cessation of operations, unless a different period is
justified. During this time, the licensee would be relieved of the
regulatory burden of requirements that are not needed to support an
appropriate level of EP as preparations are made to implement a PDEP.
The PSEP is a transition period for both onsite and offsite emergency
planning in which the regulatory requirements for periodic updates,
reviews, and audits that were necessary to support operating reactor EP
programs should not interfere with efforts to establish an appropriate
level of EP for a PDEP. The NRC does not intend for many significant
changes to

[[Page 12270]]

occur to the emergency plan while the PSEP is used.
Permanently Defueled Emergency Plan
For plants that have permanently shut down and defueled, the
proposed EP approach is based primarily on conditions that: (1) A
postulated radiological release would not exceed the EPA early-phase
PAGs at the exclusion area boundary for DBAs applicable to a
permanently shutdown and defueled reactor, and (2) sufficient time
would exist to implement mitigative actions in response to a postulated
zirconium fire beyond-design-basis accident scenario in the SFP and, if
warranted, for offsite officials to initiate appropriate response
actions using all-hazards planning to protect public health and safety.
Because of the additional time available to take mitigative actions
and, if necessary, to initiate protective actions, many requirements
applicable under an operating reactor emergency plan or a PSEP would
not be required to protect public health and safety and, therefore,
would not be applicable to licensees with sufficiently decayed spent
fuel under a PDEP.
The NRC is proposing two regulatory alternatives to specify when
the transition to a PDEP may occur: (1) After a specified amount of
spent fuel decay time that starts from the date of permanent cessation
of operations, or (2) after an alternative timeframe based on a site-
specific analysis that shows that the fuel in the SFP cannot heat up to
zirconium fuel cladding ignition temperature (900 degrees C) within 10
hours under adiabatic conditions. In either case, a licensee would be
permitted to transition to a PDEP only after the NRC's docketing of the
licensee's certifications of permanent cessation of operations and
permanent removal of fuel from the reactor vessel pursuant to Sec.
50.82 or Sec. 52.110. This proposed rule specifies an acceptable decay
time to remove the requirement for licensees to provide a site-specific
analysis. Licensees are provided the option to submit a site-specific
analysis proposing an alternative decay period, but such an analysis
would be subject to NRC review and approval before a transition to a
PDEP.
Independent Spent Fuel Storage Installation-Only Emergency Plan
The third level of decommissioning under the proposed rule would
occur when all spent fuel is removed from the SFP and placed in dry
cask storage. At this point, the licensee would have an ISFSI-only
emergency plan, or IOEP. A licensee with all of its spent fuel in dry
cask storage that terminates its 10 CFR part 50 or 10 CFR part 52
license must first obtain a specific 10 CFR part 72 license.
Accordingly, the licensee would then transition to the EP requirements
for dry cask storage in Sec. 72.32, ``Emergency Plan.'' A licensee
maintaining its 10 CFR part 50 or 10 CFR part 52 license may opt to
change its EP program to align it with the requirements of Sec. 72.32
once all spent fuel is transferred to dry cask storage. These two
categories of licensees (i.e., 10 CFR part 72 specific licensees and 10
CFR part 50 or 10 CFR part 52 licensees with ISFSIs licensed under the
10 CFR part 72 general license) would be permitted to adopt an IOEP,
consistent with the EP requirements that currently exist under Sec.
72.32(a).
All Spent Fuel Removed From Site
This proposed rule would allow a licensee to terminate its EP
program once all the spent fuel has been permanently removed from the
site, because the site no longer poses any risk of a radiological
release from the spent fuel.
3. Licensee Supporting Analyses
Decommissioning nuclear power reactor licensees submitting requests
for exemptions under Sec. 50.12, ``Specific exemptions,'' from EP
regulations have performed a series of supporting analyses for NRC
review, as described in NSIR/DPR-ISG-02, ``Interim Staff Guidance:
Emergency Planning Exemption Requests for Decommissioning Nuclear Power
Plants'' (ADAMS Accession No. ML14106A057). To support the exemption
requests, these analyses must demonstrate that: (1) Any radiological
release for applicable DBAs (e.g., fuel handling accident in the spent
fuel storage facility, waste gas system release, and cask handling
accident if the cask handling system is not licensed as single-failure-
proof) would not exceed the limits of EPA PAGs at the exclusion area
boundary, and (2) mitigation strategies and guidelines exist to provide
an integrated response capability for beyond-design-basis events. In
addition, licensees are required to demonstrate that, in the event of a
complete loss of SFP water inventory with no heat loss (adiabatic
heatup), a period of at least 10 hours would be available from the time
all cooling is lost until any zirconium fuel cladding temperature
reaches 900 degrees C.
Under this proposed rule, the NRC would not require licensees to
submit these analyses to the NRC for review and approval (separately
from existing NRC oversight processes described later in this document)
or to certify that these analyses have been completed to support a
change between EP levels. The NRC anticipates that a licensee would
analyze applicable DBAs using the process under Sec. 50.59 and reflect
the analysis in the licensee's updated FSAR. The NRC expects that
licensees have developed and maintained mitigation strategies for
beyond-design-basis events as required by NRC Order EA-12-049. For the
heatup analysis, the NRC has already performed analyses of
representative PWR and BWR spent fuel to determine the decay time
necessary for the fuel to remain below clad ignition temperature for at
least 10 hours assuming adiabatic heatup conditions. These analyses
contain numerous conservatisms, such that the decay times specified in
the rule would bound the decay time required for plants with fuel
assemblies from the final offload to the spent fuel pool with burnup
less than 72 GWd/MTHM and zirconium cladding to attain the 10-hour
criterion. This particular analysis supports a transition to PDEP
requirements, as previously described. The NRC is proposing an option
to allow licensees to develop their own site-specific analysis for this
transition time; however, licensees would need to submit such analyses
to the NRC for review and approval. This proposed rule details that
process.
The following sections describe the proposed EP planning standards
and requirements for each graded level of EP (i.e., PSEP, PDEP, and
IOEP) under proposed Sec. Sec. 50.54(q) and 50.200, ``Power reactor
decommissioning emergency plans.'' The NRC is issuing draft Regulatory
Guide (DG) DG-1346, ``Emergency Planning for Decommissioning Nuclear
Power Reactors'' (ADAMS Accession No. ML21347A046), for public comment
with this proposed rule that includes guidance on one method acceptable
to the NRC for complying with these proposed requirements. This
regulatory guide will supersede NSIR/DPR-ISG-02 upon publication of the
final rule. This proposed rule contains a risk-informed, consequence-
oriented, graded approach to EP for decommissioning sites that
maintains the defense-in-depth philosophy and provides reasonable
assurance that adequate protective measures can and will be taken in
the event of a radiological emergency.
4. Post-Shutdown Emergency Plans
The NRC is proposing in Sec. 50.54(q)(7) that a licensee can
transition to a PSEP after the NRC's docketing of the licensee's
certifications of permanent

[[Page 12271]]

cessation of operations and permanent removal of all fuel from the
reactor vessel pursuant to Sec. Sec. 50.82(a)(1) or 52.110(a). A PSEP
provides a transition period from the EP requirements for an operating
reactor to the PDEP requirements under proposed Sec. 50.200(b) and
(c). The NRC is proposing regulations under new Sec. 50.200(a) that
would clarify how the planning standards in Sec. 50.47(b) and
requirements in appendix E to 10 CFR part 50 apply to a nuclear power
reactor licensee's PSEP.
PSEP Staffing and Emergency Response Organization
Currently, the following regulations govern the staffing of the
emergency response organization (ERO):
<bullet> Section 50.47(b)(1), which states, in part, ``Primary
responsibilities for emergency response by the nuclear facility . . .
have been assigned . . . and each principal response organization has
staff to respond and to augment its initial response on a continuous
basis.''
<bullet> Section 50.47(b)(2), which states, in part, ``[A]dequate
staffing to provide initial facility accident response in key
functional areas is maintained at all times, timely augmentation of
response capabilities is available. . . .''
<bullet> Appendix E to 10 CFR part 50, paragraph IV.A, which
states, in part, ``The organization for coping with radiological
emergencies shall be described, including definition of authorities,
responsibilities, and duties of individuals assigned to the licensee's
emergency organization. . . .''
This proposed rule would allow a licensee transitioning to a PSEP
to revisit staffing levels and the staffing analysis for the ERO
performed under paragraph IV.A.9 of appendix E to 10 CFR part 50 to
align staffing with the reduced spectrum of credible accidents for a
permanently shutdown and defueled nuclear power reactor facility. The
proposed requirement in Sec. 50.200(a) would acknowledge that the
spectrum of credible accidents requiring a response from the ERO at a
facility that is permanently shutdown and defueled is reduced as
compared to that for an operating plant. The principal public safety
concern involves the potential radiological risks associated with the
storage of spent fuel on site in the SFP. For example, the reactor,
reactor coolant system, and reactor support systems are no longer in
operation and have no function related to the storage of spent fuel.
Therefore, postulated accidents involving a failure or malfunction of
these systems are no longer applicable. As such, certain ERO positions
and emergency functions as detailed in NUREG-0654/FEMA-REP-1, Revision
2, Table B-1, ``Emergency Response Organization (ERO) Staffing and
Augmentation Plan,'' may not be applicable or necessary under a PSEP.
Commensurate with the reduced spectrum of credible accidents, proposed
Sec. 50.200(a) would allow licensees to change ERO staffing levels
required by existing Sec. 50.47(b)(2) within their PSEPs. Reductions
in facility staffing may be made as long as the facility operates with
no loss of necessary EP functions and the reductions have no impact on
the formal offsite radiological emergency response plans that are in
effect. In conjunction with this proposed rule, the NRC is issuing for
public comment DG-1346, which provides guidance on ERO capabilities to
be maintained at facilities with PSEPs when reducing staffing levels.
PSEP Emergency Action Levels
Currently, appendix E to 10 CFR part 50, paragraph IV.C requires
licensees to develop a set of emergency action levels (EALs) based not
only on onsite and offsite radiation monitoring information but also on
readings from a number of sensors that indicate a potential emergency,
such as the pressure in containment and the response of the emergency
core cooling system. This proposed rule would allow licensees
transitioning to a PSEP to revise EALs consistent with the profile of a
permanently shutdown and defueled nuclear power reactor. Proposed Sec.
50.54(q)(8)(iii) would state that changes to EALs resulting from
changes in plant conditions due to the transition to decommissioning
would not be reductions in effectiveness provided that the evaluation
under Sec. 50.54(q)(3) demonstrates that the changes do not reduce the
capability of the licensee to take timely and appropriate protective
actions. Given the defueled nature of facilities in decommissioning,
EALs associated with nuclear power reactor operations (e.g., reactor
vessel water level, core temperature, and containment radiation levels)
and EALs for mitigation systems not associated with the SFP would no
longer contain applicable initiating conditions. Containment parameters
do not indicate the conditions relevant to EP at a defueled facility,
and emergency core cooling systems would no longer be required. Other
indications such as SFP level or temperature can be used at sites that
have spent fuel in the SFPs. Consistent with existing requirements,
licensees transitioning to a PSEP would still be required to maintain a
set of EALs based on onsite radiation monitoring information and in-
plant conditions and instrumentation applicable to EP for a defueled
reactor.
Guidance document NEI 99-01, Revision 6, ``Development of Emergency
Action Levels for Non-Passive Reactors'' (ADAMS Accession No.
ML12326A805), provides EALs for non-passive operating nuclear power
reactors, permanently defueled reactors, and ISFSIs. The NRC found NEI
99-01, Revision 6, acceptable for use in a letter dated March 28, 2013
(ADAMS Accession No. ML12346A463). To accompany this proposed rule, the
NRC drafted guidance in Attachment 1 of Appendix A in DG-1346, for how
a permanently shutdown and defueled nuclear power reactor facility
could make a partial EAL scheme change. Notwithstanding the proposed
changes to Sec. 50.54(q), a licensee desiring to change its entire EAL
scheme must receive prior NRC approval in accordance with appendix E to
10 CFR part 50, paragraph IV.B.2.
PSEP Evacuation Time Estimate Studies
Appendix E to 10 CFR part 50, paragraph IV.3 requires licensees to
use evacuation time estimates (ETEs) in the formulation of protective
action recommendations (PARs) and to provide the ETEs to State and
local governmental authorities for use in developing offsite protective
action strategies. Licensees must update ETEs on a periodic basis in
accordance with the requirements in Sec. 50.47(b)(10) and appendix E
to 10 CFR part 50, paragraphs IV.4, IV.5, and IV.6. The periodicity of
these updates together with time needed to develop and implement the
resulting protective action strategies may exceed the expected
transition period covered by PSEPs. Therefore, the NRC is proposing to
add a new paragraph IV.8 to appendix E to 10 CFR part 50 to clarify
that the ETE requirements of paragraphs IV.4, IV.5, and IV.6 would no
longer be applicable to licensees after permanent cessation of
operations and permanent removal of fuel from the reactor vessel.
Existing ETE analyses would remain effective within the emergency plan
until no longer required for licensees with PDEPs.
Under proposed Sec. 50.54(q)(7)(ii), a licensee transitioning to a
PSEP would need to maintain a PSEP from the date that the NRC dockets
the licensee's certifications of permanent cessation of operations and
permanent removal of fuel from the reactor vessel, until the spent fuel
has decayed for a period of at least 10 months (for BWRs) or 16 months
(for PWRs) from the date of permanent cessation of operations for

[[Page 12272]]

burnups less than 72 GWd/MTHM, unless an alternative spent fuel decay
period is proposed by the licensee and approved by the NRC. For fuel
with burnups greater than 72 GWd/MTHM or non-zirconium cladding, an
alternative spent fuel decay period would be proposed by the licensee
for approval by the NRC under Sec. 50.54(q)(7)(ii). Updates to the ETE
during this level of decommissioning would provide limited benefit for
the enhancement of protective action strategies or offsite evacuation
planning. Even if the criteria for updating the ETE analysis were met
within the timeframe for a PSEP, updating an ETE report may take
several months of analysis. After the ETE is updated, the regulations
in appendix E to 10 CFR part 50, paragraph IV.6 require an additional
180 days before an updated ETE can be used to inform PARs and offsite
protective action strategies. The additional time and effort needed to
develop and implement a revised protective action strategy may exceed
the time that a facility would spend with a PSEP before transitioning
to a PDEP. Based on the NRC's review of submitted ETEs, population
changes within a period comparable to the post-shutdown timeframe are
unlikely to impact ETEs enough to affect the formulation of protective
action strategies. In addition, because licensees with PDEPs would not
be required to have preplanned PARs to provide for a prompt response to
a radiological emergency, updates to the ETE post-shutdown would
provide no significant benefit.
PSEP Annual Dissemination of Public Information
Appendix E to 10 CFR part 50, paragraph IV.D.2 currently requires
licensees to make an annual dissemination of basic emergency planning
information to the public within the plume exposure pathway EPZ.
Section II.G of NUREG-0654/FEMA-REP-1, Revision 2, contains criteria
for the information that should be included in the annual dissemination
of public information, including educational information on radiation,
points of contact, protective measures, and information for special
needs populations. The NRC is not proposing changes related to the
requirement for an annual dissemination of public information for a
PSEP because the change in the plant's operating status and the ensuing
changes to the EP program would be appropriate information to
communicate to the public. However, consistent with the removal of
regulatory standards for offsite radiological emergency plans for
decommissioning sites (including the removal of EPZ requirements) as
discussed later in this document, licensees with PDEPs would not be
required to provide annual disseminations of information to the public.
In DG-1346, the NRC provides guidance on one method acceptable to the
NRC for a final dissemination of information to the public for
licensees with PSEPs.
PSEP Hostile Action
In the 2011 final rule, ``Enhancements to Emergency Preparedness
Regulations'' (76 FR 72559; November 23, 2011) (2011 EP Final Rule),
the NRC amended its regulations to include enhancements to EP in
response to a hostile action event. Appendix E to 10 CFR part 50,
paragraph IV.A.7 defines ``hostile action'' as an act directed toward a
nuclear power plant or its personnel that includes the use of violent
force to destroy equipment, take hostages, and/or intimidate the
licensee to achieve an end. Appendix E to 10 CFR part 50, paragraph
IV.B.1 requires nuclear power reactor licensees to have EALs for
hostile action, paragraph IV.E.8.d requires nuclear power reactor
licensees to have alternative facilities that would be accessible even
if the site is under threat of or experiencing hostile action for the
staging of ERO personnel, paragraph IV.l requires nuclear power reactor
licensees to develop protective actions to protect onsite personnel
during hostile action, and paragraph IV.F.2.c.4 and paragraph IV.F.2.i
require nuclear power reactor licensees to have hostile action
scenarios in drills and exercises. These EP requirements related to
hostile action are separate and distinct from the physical protection
regulations in 10 CFR part 73, ``Physical Protection of Plants and
Materials.''
The NRC is proposing to maintain EP requirements related to hostile
action for nuclear power reactor licensees transitioning to a PSEP.
Spent fuel at a nuclear power reactor facility that has a PSEP has not
yet undergone a significant period of decay, necessitating the
maintenance of formal offsite radiological emergency planning. The
potential consequences and timing of an accident are the primary
considerations for the EP planning basis at nuclear power reactor
facilities transitioning to a PSEP. Although NUREG-1738 did not
evaluate the potential consequences of a sabotage event that could
directly cause offsite fission production dispersion, the NRC did study
the potential consequences of the zirconium fire event at different
spent fuel decay times. Within the timeframe proposed for nuclear power
reactor facilities transitioning to a PSEP, the study in NUREG-1738
shows that decay time is significant when considering short-term
radiological consequences. Additionally, maintaining EP requirements
related to hostile action during this transitional (and time-limited)
level of decommissioning would help both the licensee and offsite
response organizations (OROs) avoid immediate significant changes to
the onsite and offsite emergency plans.
PSEP Drills and Exercises
Current regulations in appendix E to 10 CFR part 50, paragraph IV.F
and Sec. 50.47(b)(14) include requirements for periodic drills and
exercises for nuclear power reactor licensees. Proposed paragraph
IV.F.2.k would require licensees to follow the biennial exercise
requirements of appendix E, paragraph IV.F.2 once the NRC dockets the
licensee's certifications required under Sec. 50.82(a)(1) or Sec.
52.110(a). After the NRC dockets this certification, exercise scenarios
would be reduced commensurate with the permanent cessation of
operations and permanent removal of fuel from the reactor vessel to
reflect a smaller suite of potential accident scenarios.
Current regulations in appendix E to 10 CFR part 50, paragraph
IV.F.2.c require that offsite radiological emergency plans for each
site be exercised biennially with full participation by each offsite
authority having a role under the radiological emergency plan. Proposed
paragraph IV.F.2.k would provide that biennial exercises of offsite
emergency plans would be required after the NRC dockets a licensee's
certifications under Sec. 50.82(a)(1) or Sec. 52.110(a) until
transition to a PDEP.
However, a licensee that conducts a full participation biennial
exercise just prior to the NRC docketing the licensee's certifications
required under Sec. 50.82(a)(1) or Sec. 52.110(a) may not be required
to conduct another exercise before transitioning to a PDEP. If an
exercise is conducted as part of the 8-year exercise cycle, as required
under appendix E to 10 CFR part 50, paragraph IV.F.2.j, after the NRC
dockets the licensee's certifications required under Sec. 50.82(a)(1)
or Sec. 52.110(a), but prior to transitioning to a PDEP, the scenario
would reflect actual plant conditions.
PSEP Emergency Response Data Systems
Appendix E to 10 CFR part 50, section VI, ``Emergency Response Data
System,'' outlines a set of system, testing, and

[[Page 12273]]

implementation requirements for the emergency response data system
(ERDS). These systems transmit near-real-time electronic data directly
between the licensee's onsite computer system and the NRC Operations
Center. Nuclear power facilities that are shutdown permanently or
indefinitely are currently not required to provide hardware to
interface with the NRC receiving system under appendix E to 10 CFR part
50, paragraph VI.2, and the NRC is not proposing any regulatory changes
to section VI beyond minor corrections (see ``Clean-up of Regulations''
section in this document). Under Sec. 50.72, ``Immediate notification
requirements for operating nuclear power reactors,'' licensees with
PSEPs would maintain a capability to provide meteorological,
radiological, and SFP data (e.g., level, flow, and temperature data) to
the NRC within a reasonable timeframe following an event.
5. Permanently Defueled Emergency Plans
Proposed Sec. 50.54(q)(7)(ii) describes the timeframe after which
a licensee would be permitted to transition to a PDEP. As discussed in
the ``Technical Basis for Graded Approach'' section of this document,
the NRC concluded that after a decay period of 10 months (for BWRs) or
16 months (for PWRs), the spent fuel cannot reasonably heat up to the
zirconium fuel cladding ignition temperature within 10 hours.
Therefore, the NRC is proposing that a licensee can transition to a
PDEP after the NRC's docketing of the licensee's certifications of
permanent cessation of operations and permanent removal of all fuel
from the reactor vessel pursuant to Sec. Sec. 50.82(a)(1) or 52.110(a)
and when at least 10 months (for BWR) or 16 months (for PWR) have
elapsed since the date of permanent cessation of operations.
Proposed Sec. 50.54(q)(7)(ii) would also allow licensees to submit
an analysis for NRC approval demonstrating that an alternative spent
fuel decay period would ensure that spent fuel would not heat up to 900
degrees C in less than 10 hours under adiabatic conditions. Under the
proposed rule, licensees would be required to submit this analysis
under Sec. 50.90 and the analysis would need to be approved by the NRC
in order for a licensee to transition to a PDEP in less than 10 months
(for a BWR) or 16 months (for a PWR). While the NRC's research
conducted to inform this proposed rule supports a required decay period
of 10 months (for BWRs) or 16 months (for PWRs), it is possible that a
licensee may be able to demonstrate, based on site-specific conditions,
that a shorter decay period would still ensure that spent fuel cannot
reasonably heat up to the zirconium fuel cladding ignition temperature
within 10 hours; therefore, the NRC is allowing for the flexibility to
submit an alternative decay period under proposed Sec.
50.54(q)(7)(ii). The NRC is issuing DG-1346 for public comment in
conjunction with this proposed rule; DG-1346 provides one method
acceptable to the NRC for conducting the spent fuel heatup analysis.
As demonstrated in the results of the NRC's task analysis of
mitigation actions, ``A Human Reliability Analysis of the Spent Fuel in
the Spent Fuel Pool of Decommissioning Nuclear Plants'' (ADAMS
Accession No. ML16110A432), a period of 10 hours will provide
sufficient time for plant staff to implement mitigation strategies to
prevent spent fuel heatup damage. Additionally, as noted in the NRC's
analysis, ``Offsite Dose Accumulation Rates Following a Hypothetical
Spent Fuel Pool Accident'' (ADAMS Accession No. ML16110A430), even in
the event of a highly unlikely beyond-design-basis accident leading to
a rapid draindown of the SFP and subsequent zirconium fire, there may
be an additional time margin of several hours beyond the 10-hour heatup
time during which protective actions can be taken to protect the public
before the dose levels associated with EPA PAGs would be exceeded
offsite. Because of the additional time available to take mitigation
actions and, if necessary, to initiate protective actions, many
requirements applicable to licensees with PSEPs would not be applicable
to licensees with sufficiently decayed spent fuel (i.e., licensees with
PDEPs). The following discussion addresses the planning standards under
proposed Sec. 50.200(b) and requirements under proposed Sec.
50.200(c) that would be necessary to adequately protect public health
and safety at facilities with PDEPs. The proposed requirements for
facilities with PDEPs are consistent with the guidance contained in
NSIR/DPR-ISG-02.
Offsite Radiological Emergency Response Plans
Currently, Sec. 50.47(b) applies to both onsite and offsite
radiological emergency response plans, and appendix E to 10 CFR part 50
includes requirements for emergency plans to address offsite emergency
response capabilities (e.g., public alert and notification systems,
offsite PAR development, ETEs, and exercises of offsite emergency
plans). Under this proposed rule, NRC planning standards would no
longer be applied to offsite radiological emergency response plans for
plants with PDEPs.
In its review of several exemption requests, the NRC concluded that
as long as a period of at least 10 hours is available to implement
mitigation measures or initiate appropriate response actions offsite,
formal offsite radiological emergency plans, required under 10 CFR part
50, are not necessary for permanently shutdown and defueled nuclear
power reactor licensees with a PDEP. In a hypothetical SFP accident
scenario, 10 hours is a conservative estimate of the amount of time
available to implement mitigation measures or to take other appropriate
response actions. The 10 hours assumes that the spent fuel begins to
heat up immediately after the initiating event occurs and does not
include the expected amount of time it would take for water to drain
from the pool. A beyond-design-basis accident that results in the water
draining from the pool (whether a full or partial draindown) would
likely take much longer than 10 hours because of the robust
construction of the SFP and the large volume of water in the SFP,
delaying the onset of heatup. Additionally, 10 hours is a conservative
period of time during which preplanned mitigation measures to provide
makeup water or spray to the SFP can be implemented reliably before the
onset of a zirconium cladding ignition.
If a release is projected to occur, 10 hours would be sufficient
time for licensees to notify offsite agencies and for these agencies to
initiate appropriate action to protect public health and safety. The
NRC concludes that 10 hours provides ample time to take appropriate
actions without the extensive preplanning and other requirements of the
EP framework for operating plants, and, therefore, regulatory standards
for offsite radiological emergency plans would no longer be necessary
for the adequate protection of public health and safety. Licensees with
PDEPs would still maintain a variety of onsite capabilities that may be
available to support OROs in EP and response, including radiological
training; regular coordination with OROs; radiological assessment
capabilities; memoranda of understanding for firefighting, law
enforcement, and ambulance/medical services; and the ability to make
PARs upon request. For licensees with PDEPs, no action would be
expected or required from State or local government organizations in
response to an event at a decommissioning site other than firefighting,
law enforcement, and ambulance/medical services. Requirements for
licensees to maintain agreements for these services also exist

[[Page 12274]]

outside of radiological EP, including the requirement for licensees to
maintain a fire protection plan in Sec. 50.48, ``Fire protection,''
and physical security requirements in 10 CFR part 73. Since the
requirements of Sec. 50.47(b) continue to apply to offsite
radiological emergency plans during decommissioning, the NRC is
proposing to add Sec. 50.47(f) to clarify when the 16 planning
standards in Sec. 50.47(b) no longer apply to offsite radiological
emergency plans.
PDEP Staffing and Emergency Response Organization
Currently, Sec. 50.47(b)(1) and (2) and paragraph IV.A of appendix
E to 10 CFR part 50 require licensees to maintain adequate staffing for
initial and augmented response in the case of an emergency and to
describe ERO responsibilities in their emergency plans. Further,
appendix E to 10 CFR part 50, paragraph IV.A.9 requires licensees to
conduct a detailed staffing analysis demonstrating that on-shift
personnel assigned emergency plan implementation functions are not
assigned responsibilities that would prevent the timely performance of
their assigned functions as specified in the emergency plan.
Proposed Sec. 50.200(b)(1), (b)(2), and (c)(1)(i) would include
similar staffing requirements for licensees with PDEPs, with the
exception of changes made to reflect the small staffing levels required
at a decommissioning facility and the removal of formal offsite
radiological emergency response requirements for licensees with PDEPs.
For example, licensees with PDEPs would not have to comply with the
requirement under appendix E to 10 CFR part 50, paragraph IV.A.3 to
augment the ERO with staff from licensee headquarters. Because of the
much lower risk and much slower progression of events as compared to
operating plants, decommissioning sites typically have a level of
emergency response that does not require response by headquarters
personnel. Licensees would not have to identify State and/or local
officials responsible for protective actions, as currently required
under appendix E to 10 CFR part 50, paragraph IV.A.8 because offsite
emergency measures are limited to onsite support provided by local
police, fire departments, and ambulance and hospital services, as
appropriate. Proposed Sec. 50.200(c)(1)(i) would require licensees
with PDEPs to include in their emergency plans plant staff emergency
assignments.
In addition, the staffing analysis required under appendix E to 10
CFR part 50, paragraph IV.A.9 would no longer apply to licensees with
PDEPs. In the 2011 EP Final Rule, the NRC concluded that the staffing
analysis requirement was not necessary for non-power reactor licensees
because of the small staffing levels required for those facilities. For
this same reason, licensees with PDEPs would no longer be required to
perform this analysis under the proposed rule.
As licensees transition to a PDEP, staffing levels may be reduced
but must remain commensurate with the need to safely store spent fuel
at the facility in a manner that is protective of public health and
safety. The NRC is issuing DG-1346 for public comment in conjunction
with this proposed rule; DG-1346 provides guidance on ERO staffing
levels for a PDEP. Licensees with PDEPs would need to be able to
augment on-shift capabilities within two hours after declaration of an
emergency. The augmented staff would need to include engineering
capability appropriate for SFP accident mitigation, but may otherwise
be reduced.
Currently, a licensee is required to maintain staffing levels at
its technical support center (TSC), operational support center (OSC),
and emergency operations facility (EOF). In accordance with NUREG-0696,
``Functional Criteria for Emergency Response Facilities'' (ADAMS
Accession No. ML051390358), a TSC is an onsite facility located close
to the control room that provides plant management and technical
support to the reactor operating personnel located in the control room
during emergency conditions; the OSC is an onsite area separate from
the control room and the TSC where licensee operations support
personnel will assemble in an emergency; and an EOF is an offsite
support facility for the management of overall licensee emergency
response (including coordination with Federal, State, and local
officials), coordination of radiological and environmental assessments,
and determination of recommended public protective actions. Because of
the low probability of DBAs or other credible events that would be
expected to exceed the EPA PAGs offsite and the available time to
implement mitigation measures consistent with plant conditions and, if
necessary, to initiate response actions, licensees with PDEPs would not
need to maintain the TSC, OSC, and EOF designated staff or dedicated
offsite dose assessment field teams.
PDEP Emergency Classification Levels and Emergency Action Levels
Currently, Sec. 50.47(b)(4) and appendix E to 10 CFR part 50,
paragraphs IV.B and IV.C specify the EAL and emergency classification
level (ECL) requirements for operating reactors. Similar to Sec.
50.47(b)(4), the proposed PDEP planning standard under Sec.
50.200(b)(4) would require licensees with PDEPs to establish a standard
ECL and EAL scheme, the bases of which would include facility system
and effluent parameters. The NRC is proposing EAL and ECL requirements
for licensees with PDEPs that are analogous to appendix E to 10 CFR
part 50, paragraphs IV.B and IV.C with the exceptions of the
requirements to base EALs on offsite monitoring information and the
appendix E to 10 CFR part 50 paragraph IV.B.1 requirement to include
hostile action-based EALs. Because licensees with PDEPs would not be
required to maintain formal offsite radiological emergency response
plans and ``hostile action'' does not apply (see discussion in ``PDEP
Hostile Action'' and ``Offsite Radiological Emergency Response Plans''
sections in this document), these requirements are no longer relevant
to these facilities. However, EALs for security-based events would
still be required.
Under proposed Sec. 50.200(c)(1)(ii)(A), licensees with PDEPs
would continue to be required to describe in their emergency plans the
EALs that are used as a criterion for determining the need for
notification and participation of governmental agencies and the EALs
that are used for determining when and what protective measures should
be considered within the site boundary to protect public health and
safety. In addition, licensees with PDEPs would be required to review
EALs with State and local governmental authorities on an annual basis.
Under proposed Sec. 50.200(c)(1)(iii)(A), licensees with PDEPs would
continue to be required to describe in their emergency plans the
spectrum of emergency conditions that involve the alerting or
activating of the total emergency organization, the communication steps
to be taken to alert or activate personnel, EALs for notification of
offsite agencies, and the existence of a message authentication scheme.
Under proposed Sec. 50.200(c)(1)(ii)(B), a licensee desiring to make
an EAL scheme change as part of the PDEP must follow the requirements
of appendix E to 10 CFR part 50, paragraph IV.B.2.
For facilities with PDEPs, proposed Sec. 50.200(c)(1)(iii)(A)
would specify that only the ECLs of Notification of Unusual Event and
Alert would apply (and not the ECLs of Site Area Emergency and General
Emergency, which apply to operating reactors). For these facilities,
the probability of a condition reaching the level above an emergency

[[Page 12275]]

classification of Alert is very low. In the event of an accident at a
facility with a PDEP, time will be available to implement mitigation
measures consistent with plant conditions. As stated in NUREG-1738,
small SFP leaks or loss of cooling scenarios evolve very slowly and
generally leave many days for recovery efforts. Offsite radiation
monitoring would be performed as the need arises. Because of the low
probability of DBAs or other credible events that would reasonably be
expected to exceed the EPA PAGs and the available time to implement
mitigation measures consistent with plant conditions and, if necessary,
to initiate appropriate response actions offsite, facilities with PDEPs
would not require declarations of Site Area Emergency and General
Emergency and the associated offsite radiation monitoring systems. The
results from the NRC's analyses previously discussed support this
conclusion.
Consistent with the discussion on PSEPs, EALs for nuclear power
reactor operations (e.g., reactor vessel water level, core temperature,
and containment radiation levels) and EALs related to mitigation
systems not associated with the SFP would no longer be applicable for
facilities with PDEPs. The NRC is issuing DG-1346 for public comment in
conjunction with this proposed rule; DG-1346 provides one method
acceptable to the NRC for EALs for facilities with PDEPs. As discussed
previously, proposed Sec. 50.54(q)(8)(iii) describes requirements for
decommissioning licensees to conduct reduction in effectiveness
determinations for EAL schemes.
PDEP Emergency Assessment, Classification, and Declaration
Currently, appendix E to 10 CFR part 50, paragraph IV.C.2 requires
licensees to maintain the capability to assess, classify, and declare
an emergency condition within 15 minutes. A decommissioning nuclear
power reactor has a low likelihood of a design-basis accident or other
credible event resulting in radiological releases requiring offsite
protective measures, and the event progression is much slower compared
to that for operating reactors. For these reasons, under this proposed
rule licensees with PDEPs would not be required to assess, classify,
and declare an emergency condition within 15 minutes. Instead, the NRC
is proposing under Sec. 50.200(c)(1)(iii)(B) that licensees with PDEPs
must document and maintain the capability to assess, classify, and
declare an emergency condition as soon as possible and within 60
minutes after the availability of indications that an EAL has been
exceeded and must promptly declare the emergency condition as soon as
possible following identification of the appropriate ECL. Similar to
the requirements in appendix E to 10 CFR part 50, paragraph IV.C,
proposed Sec. 50.200(c)(1)(iii)(B) would clarify that PDEP licensees
must not treat the timeframe as a grace period or delay the
implementation of response actions. The 60-minute timeframe is
commensurate with the slower progression of a credible event resulting
in a radiological release requiring offsite protective measures (see
discussion of the timeframe for potential releases and mitigation
actions at decommissioning sites in the section ``Permanently Defueled
Emergency Plans'' in this document).
PDEP Notification Requirement to State and Local Governmental Agencies
Currently, appendix E to 10 CFR part 50, paragraph IV.D.3 requires
licensees to have the capability to notify OROs of an emergency
declaration within 15 minutes. Under proposed Sec.
50.200(c)(1)(iv)(B), licensees with PDEPs would be required to promptly
notify State and local governmental agencies and to make this
notification as soon as possible and within 60 minutes after declaring
an emergency. The NRC's research and analysis shows that licensees with
PDEPs would have sufficient time to implement mitigation measures
consistent with plant conditions and, if necessary, for OROs to
initiate protective actions offsite. Notifying OROs as soon as possible
and within 60 minutes after declaring an emergency would not
significantly impact the time available for OROs to initiate
appropriate response actions.
PDEP Public Alert and Notification Systems
Currently, appendix E to 10 CFR part 50, paragraph IV.D.3 requires
licensees to demonstrate that appropriate governmental authorities have
the capability to make a decision on alerting and notifying the public
promptly on being informed of an emergency condition. Because of the
low probability of DBAs or other credible events that would be expected
to exceed the limits of EPA PAGs offsite and the available time for
event mitigation, under this proposed rule, the public alert and
notification system specified in appendix E to 10 CFR part 50,
paragraph IV.D.3 would not be required for licensees with PDEPs.
Similarly, exercises of this system, as required under appendix E to 10
CFR part 50, paragraph IV.F.2, would no longer be required for
licensees with PDEPs. As previously discussed, licensees with PDEPs
would still be required to maintain the capability to notify
responsible State and local governmental agencies within 60 minutes
after declaring an emergency, and, based on research and analysis
showing that there would be at least 10 hours prior to a zirconium fuel
cladding fire for licensees with PDEPs, sufficient time would be
available for appropriate governmental authorities to inform the public
and initiate protective actions, if necessary. Such actions would be
within the capabilities of offsite response organizations and would be
similar to actions required for other hazards that do not require a
dedicated hazard-specific offsite response capability as is the case
for operating reactors.
PDEP Emergency Planning Zones
Currently, Sec. 50.47(b) and (c)(2) require licensees to conduct
emergency planning for both the shorter-term plume exposure pathway EPZ
(generally 10 miles) and the longer-term ingestion exposure pathway EPZ
(generally 50 miles). Appendix E to 10 CFR part 50 contains additional
emergency planning requirements for these two types of EPZs. However,
the maintenance of the plume exposure pathway and ingestion exposure
pathway EPZs for licensees with PDEPs is not warranted because of the
low probability of DBAs or other credible events that would be expected
to exceed the EPA PAGs off site and the available time to implement
mitigation measures. Additionally, if necessary, sufficient time would
be available for OROs to initiate appropriate response actions even for
a highly unlikely severe accident. Therefore, consistent with the NRC's
determination to not require the establishment of formal offsite
radiological emergency response plans for licensees with PDEPs, the NRC
is proposing to eliminate the requirements that EPZs be maintained for
licensees with PDEPs. In other words, the plume exposure pathway EPZ
for licensees with PDEPs does not exceed the site area boundary.
Consequently, the planning standards for PDEPs under proposed Sec.
50.200(b) and the requirements under proposed Sec. 50.200(c) do not
include references to the EPZs.
The NRC is also proposing to add a new paragraph (f) to Sec. 50.47
that would clarify that the planning standards of Sec. 50.47(b) do not
apply to offsite radiological emergency response plans if the
licensee's emergency plan is not required to meet these planning
standards or if the plume exposure

[[Page 12276]]

pathway EPZ does not exceed the site area boundary.
PDEP Offsite Radiological Protective Action Recommendations
Currently, Sec. 50.47(b) requires licensees to develop a range of
protective actions for the plume exposure pathway EPZ for emergency
workers and the public and to give consideration to evacuation,
sheltering, and the use of potassium iodide. Licensees also must
develop and put in place guidelines for the choice of protective
actions during an emergency and develop protective actions for the
ingestion exposure pathway EPZ. Proposed Sec. 50.200(b)(10) would
require licensees with PDEPs to continue to develop a range of
protective actions for emergency workers and the public but, consistent
with the removal of regulatory standards for offsite radiological EP
for these licensees, would not reference specific offsite protective
actions or pre-planned activities for the public in the EPZs. The
proposed requirement would call for protective actions directed at
emergency workers who may have to respond to the decommissioning site
for firefighting, law enforcement, and ambulance/medical services and
members of the public present within the owner-controlled area during a
radiological emergency.
For licensees with PDEPs, pre-planned offsite protective actions to
ensure a prompt response to a radiological emergency on site are not
necessary given the time available for OROs to initiate appropriate
response actions. Although the likelihood is low for events that would
result in doses in excess of the EPA PAGs to the public beyond the
owner-controlled area boundary based on the permanently shutdown and
defueled status of the reactor, the proposed rule would require
licensees with PDEPs to determine the magnitude of and continually
assess the impact of a radiological release under proposed Sec.
50.200(c)(1)(ii)(A), and, if a release is occurring, the licensee would
be required to communicate that information to offsite authorities as
soon as possible for their consideration in taking appropriate response
actions under proposed Sec. 50.200(c)(1)(iv)(B).
In 2001, the NRC revised its EP regulations through the
``Consideration of Potassium Iodide in Emergency Plans'' (66 FR 5427;
January 19, 2001) final rule to include the consideration of potassium
iodide as a protective measure for the general public to supplement
sheltering and evacuation in the unlikely event of a severe nuclear
power plant accident with an offsite radioactive plume that would
include radioactive iodine. For licensees with PDEPs, in addition to
not needing pre-planned protective action strategies, the iodine in the
spent fuel has decayed sufficiently such that there is no need to
consider a supplemental potassium iodide program to counteract the
effects of radioactive iodine on the thyroid.
PDEP Evacuation Time Estimate Studies
Currently, licensees are required to develop and update ETEs in
accordance with the requirements in Sec. 50.47(b) and appendix E to 10
CFR part 50, paragraph IV.3. Paragraph IV.3 requires licensees to use
ETEs in the formulation of PARs and to provide ETEs to State and local
governmental authorities for use in developing offsite protective
action strategies. Because of the low probability of DBAs or other
credible events that would be expected to exceed the limits of EPA PAGs
offsite and the available time for event mitigation, as well as the
minimal expected offsite response required, the proposed rule would not
require licensees with PDEPs to maintain ETEs (see section ``PSEP
Evacuation Time Estimate Studies'' in this document for additional
discussion regarding the need for ETEs post-shutdown).
PDEP Emergency Facilities and Equipment
Currently, appendix E to 10 CFR part 50, paragraph IV.E requires
licensees to maintain and describe adequate provisions for emergency
facilities and equipment, including equipment at the site for personnel
monitoring, equipment for radiological assessment, facilities and
supplies for decontaminating onsite individuals, first aid facilities
and medical supplies, arrangements for qualified medical service
providers and the transportation of contaminated injured individuals,
and arrangements for the treatment of individuals injured in support of
licensed activities. Decommissioning licensees have not received
exemptions or license amendments for these requirements to date, and
the NRC has determined that licensees with PSEPs and PDEPs would still
need to maintain these capabilities under proposed Sec.
50.200(c)(1)(v). Appendix E to 10 CFR part 50, paragraph VI.E.8 further
includes emergency response facility requirements for a TSC, OSC, and
EOF.
For licensees with PDEPs, there is no longer a need for separate,
dedicated facilities. The functions of the control room, TSC, OSC, and
EOF could be combined into one or more locations while still adequately
protecting public health and safety. Proposed Sec. 50.200(c)(1)(v)(H)
would require licensees with PDEPs to establish a facility from which
effective direction can be given and effective control can be exercised
during an emergency. Because of the low probability of DBAs or other
credible events that would be expected to exceed the limits of EPA PAGs
offsite and the available time for event mitigation, the significantly
reduced staff, and the minimal expected response required, offsite
response would not be required at an EOF. Onsite actions may be
directed from the control room or other location, without the
requirements imposed on a TSC or EOF. Proposed Sec. 50.200(b)(3) would
remove reference to the EOF as a location for response. Additionally,
under this proposed rule, a separate OSC would no longer be required to
meet its original purpose of an assembly area for plant logistical
support during an emergency. The OSC function could be incorporated
into another facility. The NRC is issuing DG-1346 for public comment in
conjunction with this proposed rule; DG-1346 provides one acceptable
method for meeting the proposed emergency response facility
requirements for PDEPs.
Appendix E to 10 CFR part 50, paragraph IV.E.9 addresses
requirements for emergency communications systems, plans, and
arrangements, including communications with OROs and between the
control room, TSC, and EOF. Proposed Sec. 50.200(c)(1)(v)(I) would
require licensees with PDEPs to continue to maintain an onsite and an
offsite communications system with backup power and communication plans
with arrangements for emergencies. These arrangements would need to
include provisions for communications with contiguous State and local
governments, Federal emergency response organizations, NRC
Headquarters, and the appropriate NRC Regional Office Operations
Center. Because licensees with PDEPs may combine emergency response
facilities, the current requirements for communication between
emergency response facilities would not apply to these licensees. Under
the proposed rule, communications with State and local emergency
operations centers would be maintained to allow coordination of
assistance onsite if required.
PDEP Hostile Action
Under this proposed rule, hostile action requirements would not
apply to licensees with PDEPs. The definition of ``hostile action'' in
appendix E to 10 CFR part 50, paragraph IV.A.7 applies

[[Page 12277]]

here to the capability of implementing EP during hostile action events.
However, in the statement of considerations (SOC) for the 2011 EP Final
Rule, the NRC excluded non-power reactors from the definition of
``hostile action'' because a non-power reactor as defined in Sec.
50.2, ``Definitions,'' is not a nuclear power plant, and a regulatory
basis had not been developed to support the inclusion of non-power
reactors in the definition of ``hostile action.'' A licensee with a
PDEP would be similar to a non-power reactor in that both have a low
likelihood of a credible accident resulting in radiological releases
requiring response actions offsite. Additionally, regardless of how a
disruption to the SFP cooling occurs, the spent fuel would take longer
than 10 hours to heat up to ignition temperature, providing adequate
time to coordinate a response between the ERO and law enforcement
officials. As such, licensees with PDEPs would not fall within the
scope of ``hostile action,'' and enhancements to EP in response to
hostile action, such as alternative facilities for the staging of ERO
personnel, protection of onsite personnel, and challenging drills and
exercises involving hostile action, would not be warranted.
Although this rationale justifies the exclusion of licensees with
PDEPs from the definition of ``hostile action'' and its related
requirements (including conducting hostile action exercises) as they
apply to EP, elements for security-based events would still be
maintained for these facilities, including EALs for security-based
events. Under the proposed rule, licensees with PDEPs would be required
to identify ORO resources that would respond to a security event, and
the assistance licensees expect from those resources would be
maintained in PDEPs. For physical security, the objective for these
facilities relates to protection of the spent fuel against sabotage. A
level of security commensurate with the consequences of a sabotage
event is required and is evaluated on a site-specific basis. The
severity of the consequences declines as fuel ages and thereby removes
over time the underlying concern that a sabotage attack, under the
current definition, could cause offsite radiological consequences.
PDEP Drills and Exercises
Section 50.47(b)(14) and appendix E to 10 CFR part 50, paragraph
IV.F provide training and drill and exercise requirements for nuclear
power reactor licensees. Consistent with the language of Sec.
50.47(b)(14), the proposed PDEP planning standard under Sec.
50.200(b)(14) would require licensees with PDEPs to conduct periodic
exercises to evaluate major portions of emergency response
capabilities, to conduct periodic drills to develop and maintain key
skills, and to correct deficiencies identified as a result of exercises
and drills. The NRC is proposing new drill and exercise requirements
for licensees with PDEPs under Sec. 50.200(c)(1)(vi) that differ from
the existing requirements under appendix E to 10 CFR part 50, paragraph
IV.F to account for changes in principal functional areas, offsite
radiological emergency response requirements, offsite PAR requirements,
and the spectrum of possible accidents.
Similar to the requirements in appendix E to 10 CFR part 50,
paragraph IV.F.1, proposed Sec. 50.200(c)(1)(vi)(A) would require
licensees with PDEPs to describe in their emergency plan provisions for
the training of employees, exercising the emergency plan by conducting
periodic drills, and including other individuals in training and drills
when those individuals may provide assistance in the event of a
radiological emergency. Under the proposed rule, the emergency plan
would be required to describe the training to be provided to several
categories of emergency personnel, with the exception of licensees'
headquarters support personnel. Headquarters support personnel would no
longer be required to augment the ERO for licensees with PDEPs.
Licensees with PDEPs would need to continue to make available a
radiological orientation training program for local services personnel
expected to provide support onsite. Because of the time available to
coordinate offsite agency notification to the public, licensees with
PDEPs would not be required to provide radiological orientation
training to local news media persons. Similar to the requirements in
appendix E to 10 CFR part 50, paragraph IV.F.2, proposed Sec.
50.200(c)(1)(vi)(B) would require licensees with PDEPs to continue to
describe provisions for the conduct of EP exercises that test the
adequacy of timing and content of implementing procedures and methods,
test emergency equipment and communications networks, and ensure
emergency organization personnel are familiar with their duties.
Licensees with PDEPs would not be required to test the public alert and
notification system during their exercises because the system would no
longer be required, as discussed previously in this document.
Proposed Sec. 50.200(c)(1)(vi)(B)(1) and (2) would require
licensees with PDEPs to conduct an exercise within two years of the
last exercise of the onsite emergency plan conducted under paragraph
IV.F.2.b of appendix E to 10 CFR part 50 and to continue to conduct
subsequent biennial exercises of onsite emergency plans. Licensees with
PDEPs would need to continue to conduct drills during the intervals
between biennial exercises involving a combination of principal
functional areas. The principal functional areas of emergency response
for licensees with PDEPs would include all of the areas currently
listed under appendix E to 10 CFR part 50, paragraph IV.F.2.b, with the
exception of protective action development and protective action
decision making (see discussion on protective action recommendations in
the section ``PDEP Offsite Radiological Protective Action
Recommendations'' in this document).
Similar to the requirements in appendix E to 10 CFR part 50,
paragraph IV.F.2.f, proposed Sec. 50.200(c)(1)(vi)(B)(4) would require
licensees with PDEPs to conduct remedial exercises if the emergency
plan is not satisfactorily tested during the biennial exercise. Like
appendix E to 10 CFR part 50, paragraph IV.F.2.g, proposed Sec.
50.200(c)(1)(vi)(B)(5) would require licensees with PDEPs to provide
for formal critiques of exercises, drills, and training that provide
performance opportunities to develop, maintain, or demonstrate key
skills and to correct weaknesses or deficiencies identified in a
critique.
Proposed Sec. 50.200(c)(1)(vi)(B)(6) would require licensees with
PDEPs to continue to use drills and exercise scenarios that provide
reasonable assurance that anticipatory responses will not result from
preconditioning of participants and that emphasize coordination among
onsite and offsite response organizations. Unlike the current
requirements under appendix E to 10 CFR part 50, paragraphs IV.F.2.b,
IV.F.2.i, and IV.F.2.j, licensees with PDEPs would not be required to
submit exercise scenarios 60 days before use in an exercise,
demonstrate that exercise scenarios include a wide spectrum of
radiological releases and events, or vary exercise scenarios across an
eight calendar year exercise cycle to allow for the demonstration of
responses to specified scenario elements, respectively. These
requirements would no longer apply due to the limited types of events
that could occur. The previously routine progression to a General
Emergency, or even a Site Area Emergency, in nuclear power reactor site
scenarios is not applicable for licensees with PDEPs.

[[Page 12278]]

The NRC is issuing DG-1346 for public comment in conjunction with
this proposed rule; DG-1346 provides one method acceptable to the NRC
for licensees with PDEPs to comply with the proposed drill and exercise
requirements.
PDEP Offsite Response Organization Participation in Drills and
Exercises
Appendix E to 10 CFR part 50, paragraph IV.F and Sec. 50.47(b)(14)
include requirements for periodic EP drills and exercises for
licensees. Appendix E to 10 CFR part 50, paragraphs IV.F.2.c and
IV.F.2.d requires offsite radiological emergency plans for each site to
be exercised biennially with full participation by offsite authorities
having a role under the radiological response plan. Appendix E to 10
CFR part 50, paragraphs IV.F.2.f and IV.F.2.h address State and local
participation in remedial exercises and refusal of State and local
governments to participate. Because no action is required from State
and local government organizations in response to events other than
firefighting, law enforcement, and ambulance/medical services, the
requirements related to ORO participation in radiological drills and
exercises would no longer be applicable to licensees with PDEPs.
Proposed Sec. 50.200(c)(1)(vi)(B) would remove the requirement to
exercise offsite emergency plans once the NRC has docketed the
licensee's certifications required under Sec. 50.82(a)(1) or Sec.
52.110(a) and the licensee elects under Sec. 50.54(q)(7)(ii) to
transition to a PDEP. For facilities that are located either on the
same site or on adjacent contiguous sites to reactors that continue to
operate, the offsite emergency plans would continue to be exercised as
required under appendix E to 10 CFR part 50, paragraph IV.2.f, until
all reactors at the site cease operation and transition to a PDEP.
Similar to the requirements under appendix E to 10 CFR part 50,
paragraph IV.2.f.e, under proposed Sec. 50.200(c)(1)(vi)(B)(3), a
licensee with a PDEP would be required to enable any State or local
government to participate in the licensee's drills and exercises when
requested.
6. Independent Spent Fuel Storage Installation-Only Emergency Plans
In order to transition to an IOEP, the NRC is proposing under Sec.
50.54(q)(7)(iii) that licensees must have all spent fuel in dry cask
storage. Licensees with an IOEP must follow and maintain the
effectiveness of an emergency plan that meets the requirements in Sec.
72.32(a).
Licensees with 10 CFR part 72 specific licenses or under the 10 CFR
part 72 general license may hold an IOEP. A licensee with all of its
spent fuel in dry cask storage that terminates its 10 CFR part 50 or 10
CFR part 52 license must first obtain a 10 CFR part 72 specific license
before transitioning to the EP requirements already provided in Sec.
72.32(a). A licensee maintaining its 10 CFR part 50 or 10 CFR part 52
license, and thus its 10 CFR part 72 general license authorized under
Sec. 72.210, ``General license issued,'' may opt to change its EP
program to align it with the requirements of Sec. 72.32 once all spent
fuel is transferred to dry cask storage. In addition, licensees under
the 10 CFR part 72 general license would need to continue to comply
with all applicable 10 CFR part 50 and 10 CFR part 52 requirements
until the 10 CFR part 50 or 10 CFR part 52 license is terminated
consistent with Sec. 50.82 or Sec. 52.110, respectively.
Under proposed Sec. 50.54(q)(7)(iii), a licensee may choose not to
comply with the EP requirements under Sec. 72.32 and may instead
maintain a PSEP or PDEP. Licensees with dry cask storage must ensure
that the emergency plan includes an appropriate EAL scheme.
The NRC is issuing DG-1346 for public comment in conjunction with
this proposed rule; DG-1346 provides guidance on transitioning to and
maintaining an IOEP.
7. All Spent Fuel Removed From Site
During the fourth level of decommissioning, the proposed rule would
allow a licensee to terminate its EP program under proposed Sec.
50.54(q)(7)(iv) or proposed Sec. 72.44(f). Once all spent fuel has
been permanently removed from the site, the site no longer poses any
risk of a radiological release. The licensee must then continue to
follow its PSDAR submitted under Sec. 50.82 until decommissioning is
completed.
8. Changes to Emergency Plans
Existing Sec. 50.54(q)(2) requires nuclear power reactor licensees
to follow and maintain the effectiveness of an emergency plan that
meets the planning standards in Sec. 50.47(b) and the requirements in
appendix E to 10 CFR part 50. In addition, Sec. 50.54(q)(3) contains
the conditions under which the licensee may make changes to its
emergency plan without prior application to and approval by the NRC,
provided that the changes do not reduce the effectiveness of the plan
and that the plan, as changed, continues to meet the standards in Sec.
50.47(b) and the requirements in appendix E to 10 CFR part 50. The NRC
is proposing to add several new paragraphs that, similar to Sec.
50.54(q)(2) and (3), would reference the requirements that emergency
plans for decommissioning nuclear power reactors must meet and the
process for making these plan changes. In particular, proposed Sec.
50.54(q)(7) would reference the applicable emergency plan requirements
after the NRC dockets a licensee's certifications under Sec.
50.82(a)(1) or Sec. 52.110(a), and proposed Sec. 50.54(q)(8) would
stipulate the conditions under which decommissioning nuclear power
reactor licensees may make changes to their emergency plans without
prior approval by the NRC. The NRC also would revise Sec. 50.54(q)(1)
to clarify that the definitions in paragraph (q) apply to only
paragraph (q).
The existing change process under Sec. 50.54(q) does not establish
whether a proposed change would impact the agency's determination that
there is reasonable assurance that a licensee can and will take
adequate protective measures in the event of a radiological emergency;
the change process establishes only whether the licensee has the
authority to implement the proposed change without prior NRC approval.
The change process uses the characteristic ``reduction in
effectiveness'' to exclude from the requirement to seek prior NRC
approval those changes that would likely not reduce the effectiveness
of the licensee's emergency plan. Because these changes would not
reduce the effectiveness of the plan, the NRC expects that the changes
should not have an impact on the agency's reasonable assurance
determination. A licensee's determination that a proposed change would
reduce the effectiveness of the emergency plan does not mean that the
licensee could not or would not implement adequate protective measures
to protect public health and safety in the event of a radiological
accident, but only that prior NRC review is required to evaluate the
impact of the change on the reasonable assurance determination. As part
of routine oversight, the NRC screens emergency plan changes, including
EAL changes, and reviews a sample of changes documented in reports
submitted under Sec. 50.54(q)(5) that could potentially reduce
effectiveness. These reviews do not constitute the NRC's approval of
the plan changes, and all such changes remain subject to future
inspection and enforcement actions. The NRC documents its approval of
plan changes under Sec. 50.54(q)(4) in its decisions to grant license
amendment requests.

[[Page 12279]]

The licensee cannot properly evaluate a proposed change to the
emergency plan if it has not considered the basis for the NRC's
approval of the original plan or the basis for any subsequent changes
to the plan--whether those changes were approved by the NRC or
implemented by the licensee without prior NRC approval under Sec.
50.54(q). Regulatory Guide (RG) 1.219, Revision 1, ``Guidance on Making
Changes to Emergency Plans for Nuclear Power Reactors'' (ADAMS
Accession No. ML16061A104), describes a method that the NRC considers
acceptable to implement the requirements in Sec. 50.54(q) as they
relate to EP and specifically to making changes to emergency response
plans. As provided in RG 1.219, the licensee should consider its
licensing basis to inform a Sec. 50.54(q) evaluation, and,
principally, applicable regulatory requirements, which are binding on
the licensee unless the NRC explicitly exempts the licensee from them.
The NRC is issuing DG-1346 for public comment in conjunction with this
proposed rule to provide guidance for decommissioning nuclear power
reactors in evaluating changes to emergency plans under proposed Sec.
50.54(q).
The change process is meant to ensure that emergency plans are
maintained up to date and that the level of planning does not fall
below the standards to which the licensee has committed. The
regulations in Sec. 50.54(q) define ``reduction in effectiveness'' as
a change in an emergency plan that results in reducing the licensee's
capability to perform an emergency planning function in the event of a
radiological emergency. ``Emergency planning function'' is currently
defined as a capability or resource necessary to prepare for, and
respond to, a radiological emergency, as established in the planning
standards of Sec. 50.47(b) and the elements of appendix E to 10 CFR
part 50, section IV. The NRC is proposing to remove the references to
the planning standards of Sec. 50.47(b) and appendix E to 10 CFR part
50 from this definition because this proposed rule would establish
alternative emergency planning standards under proposed Sec. 50.200,
and the NRC does not consider the references essential to the
definition.
When the NRC considers exemptions from EP requirements for a
decommissioning nuclear power reactor licensee, the NRC considers
whether there are special circumstances present as defined in Sec.
50.12(a)(2). In particular, the NRC determines whether application of
the EP regulations for which exemptions are under consideration in the
particular circumstances would not serve their underlying purpose or
are not necessary to achieve their underlying purpose, which is to
provide reasonable assurance that adequate protective measures can and
will be taken in the event of a radiological emergency. Once the NRC
grants a licensee exemptions from EP requirements, the exempted
regulations no longer apply to the licensee. The licensee may need to
submit a separate license amendment request if the planned changes
conflict with an element of the current licensing basis. If not, the
licensee need not submit a separate license amendment request for NRC
approval of the emergency plan changes unless the plan changes go
beyond those resulting from the exemptions granted. The NRC intends
that this proposed rule would establish clear regulatory requirements
for EP, reducing the need to request certain exemptions. As such, the
NRC is proposing to add Sec. 50.54(q)(8) to establish the process for:
(1) Transitions from one decommissioning level's EP planning standards
and requirements to the next level's EP planning standards and
requirements, and (2) changes to emergency plans within a
decommissioning level.
In considering a graded approach to EP, the NRC recognizes that a
transition between the EP planning standards and requirements of each
decommissioning level is not equivalent to making changes to the
emergency plan within a level. The transition between the EP planning
standards and requirements of each decommissioning level is
fundamentally a licensee's commitment to a different set of EP
standards and associated emergency planning functions, and the change
process should facilitate this transition.
For transitions from one decommissioning level to the next, the NRC
would require licensees to establish emergency plans that meet the EP
planning standards and requirements of the next level. The transition
is optional, and a licensee that maintains its current level of
emergency planning would satisfy the requirements of the next level;
however, doing so would mean maintaining emergency planning functions
above the commensurate level of planning for the risk involved. Under
the proposed Sec. 50.54(q)(8), a licensee would be able to make
changes to the emergency plan to commit to the EP planning standards
and requirements of the next decommissioning level (i.e., PSEP, PDEP,
or IOEP) using the Sec. 50.54(q)(3) change process, but would only
need to consider whether the changes meet the next level's planning
standards and requirements. Licensees making changes to their emergency
plans to commit to the EP planning standards and requirements of a
decommissioning level would not be required to determine if the changes
are reductions in effectiveness. Instead, the NRC would have already
made this determination through its issuance of the regulations
promulgating the EP planning standards and requirements of the
decommissioning levels. The NRC's proposed regulatory approach to
transitions between EP decommissioning levels does not go beyond the
authority currently granted to licensees to make changes to their
emergency plan under Sec. 50.54(q)(3). Additionally, any change to the
emergency plan that is not made to comply with the EP planning
standards and requirements of the next decommissioning level would
require a licensee to make a determination as to whether the change
would be a reduction in effectiveness.
After the Three Mile Island accident in 1979, the NRC issued a
final rule (45 FR 55402; August 19, 1980) (1980 EP Final Rule) that
included Sec. 50.54(u), which required licensees to upgrade their
emergency plans to meet the then-new planning standards of Sec.
50.47(b) and requirements in appendix E to 10 CFR part 50 and to submit
those plans to the NRC. In the 2011 EP Final Rule, the NRC removed and
reserved Sec. 50.54(u). The NRC's proposed approach to transitions
between EP planning standards and requirements of decommissioning
levels is analogous to the approach taken by the NRC when the 16 EP
planning standards went into effect in 1980 (see ``Reasonable Assurance
and Offsite Radiological Emergency Preparedness'' section in this
document). Under this approach, the NRC would not be relinquishing its
oversight authority, as some commenters on the ANPR and draft
regulatory basis supposed. As proposed, Sec. 50.54(q)(8)(i) would
require initial emergency plan changes made to transition between EP
decommissioning levels to be submitted to the NRC at least 60 days
prior to implementation, and emergency plans would remain subject to
future inspection and enforcement. The proposed submittal is not
intended to be a licensing action. It would provide a current copy of
the emergency plan to the NRC prior to implementation in support of
future inspection activities. This submittal would provide an
opportunity for the NRC to assure that the licensee maintains the
effectiveness of its emergency plan. Subsequent emergency plan changes
would need to follow the

[[Page 12280]]

existing change control process under Sec. 50.54(q)(3) and (4).
Hearing rights would not attach to transitions between EP
decommissioning levels; however, the public has the opportunity to
comment on the graded EP planning standards and requirements themselves
in response to this proposed rule and the drafts of the supporting
guidance documents. In addition, all emergency plan changes submitted
under Sec. 50.54(q)(5) and proposed Sec. 50.54(q)(8) would be
publicly available.
In addition to the general requirements in proposed Sec.
50.54(q)(8)(i) governing transitions between EP decommissioning levels,
proposed Sec. 50.54(q)(8) would address changes specific to SSCs and
EALs. Proposed Sec. 50.54(q)(8)(ii) would specify that, for SSCs that
are no longer needed to provide support for an emergency planning
function (as defined under proposed Sec. 50.54(q)(1)(iii)), a licensee
may make a determination under Sec. 50.54(q)(3) that emergency plan
changes are not a reduction in effectiveness if the updated FSAR
demonstrates that these SSCs are no longer required to be in service
due to the decommissioning status of the facility. Proposed Sec.
50.54(q)(8)(iii) would state that changes to EALs based on plant
conditions that are not physically achievable or instrumentation that
is no longer in service due to the transition to decommissioning are
not reductions in effectiveness provided that a Sec. 50.54(q)(3)
evaluation demonstrates that the change does not reduce the capability
of taking timely and appropriate protective actions. The NRC is
proposing these requirements to provide clarity on Sec. 50.54(q)(3)
evaluations and alleviate the burden on licensees from submitting
emergency plan changes that result from SSCs and instrumentation that
are no longer required to be in service due to decommissioning.
After the implementation of a PSEP, PDEP, or IOEP, licensees would
be required by proposed Sec. 50.54(q)(7)(i) to continue to follow and
maintain the effectiveness of the plan and by proposed Sec.
50.54(q)(8)(i)-(iii) to comply with the change process described under
existing Sec. 50.54(q)(3) and (q)(4). Therefore, licensees would be
allowed to make changes to these emergency plans without prior
application to and approval by the NRC, provided that the changes would
not reduce the effectiveness of the plan and that the plan, as changed,
would continue to meet the EP planning standards and requirements for
the applicable decommissioning level. Current Sec. 50.54(q)(5) would
require decommissioning licensees to submit to the NRC a report of each
such change within 30 days after the change is put into effect. And,
consistent with current requirements, decommissioning licensees would
have to submit changes that would reduce the effectiveness of the plan
for prior NRC review and approval in accordance with Sec. 50.54(q)(4)
so that the NRC could make the requisite reasonable assurance
determination. For subsequent emergency plan changes once all fuel is
in dry cask storage (i.e., for changes to an IOEP), proposed Sec.
50.54(q)(8)(i) would allow licensees to follow the change process under
Sec. 72.44(f).
The proposed amendments to the regulatory change process are
necessary because:
<bullet> The regulation in existing Sec. 50.54(q)(2), which
provides that a licensee must follow and maintain the effectiveness of
the emergency plan, should continue to apply in order to ensure that
emergency plans are followed and kept up to date.
<bullet> The existing Sec. 50.54(q) change process and the
associated regulatory guidance currently do not address how a licensee
could change its emergency plans to comply with the emergency plan
standards as the licensee transitions to each level of decommissioning.
<bullet> This proposed rule would allow the NRC to maintain,
through a regulatory change process, reasonable assurance that a
licensee can and will take adequate protective measures in the event of
a radiological emergency.
The proposed amendments to Sec. 50.54(q), and related regulatory
guidance, would ensure that licensees would maintain the effectiveness
of the emergency plans. Emergency plans that comply with the proposed
graded EP planning standards and requirements would continue to provide
reasonable assurance that adequate protective measures can and will be
taken in the event of a radiological emergency. Any plan that did not
meet these standards and requirements and, if applicable, the reduction
in effectiveness criterion, would be subject to inspection and
enforcement actions. The proposed approaches to transitioning between
EP decommissioning levels and to making emergency plan changes within
decommissioning levels would provide an efficient and effective
regulatory change process and would promote consistent and predictable
implementation and enforcement.
9. Program Element Review Under Sec. 50.54(t)
Under current Sec. 50.54(t), licensees must conduct reviews of EP
program elements either: (1) At intervals not to exceed 12 months or
(2) as necessary, based on an assessment by the licensee against
performance indicators and as soon as reasonably practicable after a
change occurs in personnel, procedures, equipment, or facilities that
potentially could adversely affect EP. If a licensee chooses the second
option, it must still review all program elements at least once every
24 months. For several reasons, the proposed rule would provide
decommissioning licensees with an alternative approach to reviewing EP
program elements.
First, the NRC expects licensees to remain in the first level of
decommissioning (i.e., with a PSEP) for less than 24 months, and the
scope of a PSEP is largely unchanged from the scope of an operating
reactor's emergency plan. Conversely, the second level of
decommissioning (i.e., licensees with a PDEP) will involve more
significant changes, and the NRC anticipates that licensees would
remain in the second level of decommissioning for a longer period of
time. Therefore, in order to support program continuity and minimize
changes during the transition to a PDEP, the NRC is proposing to amend
Sec. 50.54(t) such that, starting after licensees enter the second
level of decommissioning, licensees would be able to conduct program
element reviews under Sec. 50.54(t) at intervals not to exceed 24
months (rather than 12 months) without conducting an assessment against
performance indicators. The NRC is proposing to add new Sec.
50.54(t)(3) to remove the requirement to conduct periodic EP program
element reviews once all fuel is in dry cask storage (i.e., the third/
IOEP level of decommissioning), consistent with the EP requirements for
ISFSIs under 10 CFR part 72.
10. Reasonable Assurance and Offsite Radiological Emergency
Preparedness
The regulations in Sec. Sec. 50.47 and 50.54, ``Conditions of
licenses,'' prescribe how the NRC will make licensing decisions or take
appropriate enforcement actions by using findings of reasonable
assurance that adequate protective measures can and will be taken to
protect public health and safety in the event of a radiological
emergency. Every 10 CFR part 50 or 10 CFR part 52 license includes as a
condition of the license the requirements of Sec. 50.54(s)(2)(ii) and
(s)(3) regarding findings and determinations of reasonable assurance.

[[Page 12281]]

The NRC has the authority and responsibility to make licensing findings
on the overall adequacy of onsite and offsite emergency planning and
preparedness. Commensurate with the NRC's responsibility to make such

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