POLICY ISSUE 

(Information) 

February 23, 2017 SECY-17-0028 

FOR: The Commissioners 

FROM: Victor M. McCree 

Executive Director for Operations 

SUBJECT: STATUS OF POWER REACTOR DECOMMISSIONING RULEMAKING 

ACTIVITIES AND LICENSING REVIEW EFFICIENCIES 

PURPOSE: 

The purpose of this paper is to inform the Commission of the status of the power reactor 

decommissioning rulemaking, “Regulatory Improvements for Reactors Transitioning to 

Decommissioning” (RIN 3150-AJ59, NRC-2015-0070). The staff intends to make a preliminary 

version of the draft regulatory basis publicly available on or about March 8, 2017 (but no earlier 

than 10 days after the date of this paper), to facilitate discussions at the upcoming Regulatory 

Information Conference. The staff will then formally publish the draft regulatory basis for public 

comment through a Federal Register notice. This paper does not address any new 

commitments or resource implications. 

BACKGROUND: 

On November 19, 2015, the U.S. Nuclear Regulatory Commission (NRC) published an advance 

notice of proposed rulemaking (ANPR) in the Federal Register (80 FR 72358) to gather 

information for the power reactor decommissioning rulemaking. The ANPR requested public 

comment on specific questions regarding decommissioning as well as on more general issues 

regarding possible revisions to the NRC’s requirements for operating power reactors 

transitioning to decommissioning. 

CONTACTS: Jennifer C. Tobin, NRR/DPR Alysia G. Bone, NRR/DPR 

 301-415-2328 301-415-1034 
The Commissioners 2 

The NRC received 162 comment submissions in response to the ANPR. The staff received 

comments in every regulatory area covered in the notice. Most public feedback pertained to 

the level of public involvement in the decommissioning process, the 60-year limit for power 

reactor decommissioning, whether the NRC should approve the post-shutdown 

decommissioning activities report (PSDAR), emergency preparedness (EP) considerations, and 

the use of the decommissioning trust funds. The Nuclear Energy Institute recommended 

proceeding with a “limited scope rulemaking” on an expedited schedule to focus on efficiencies 

that reduce the need for exemptions and amendments (Agencywide Documents Access and 

Management System (ADAMS) Accession No. ML16081A486). In contrast, several members 

of Congress opposed narrowing the scope of the rule and urged the NRC to “move forward with 

a comprehensive proposal” (ADAMS Accession No. ML16263A405). The staff considered the 

comments received on the ANPR in preparing the draft regulatory basis. 

DISCUSSION: 

Issuance and Summary of the Draft Regulatory Basis 

The draft regulatory basis for the power reactor decommissioning rulemaking is now complete 

(ADAMS Accession No. ML15294A490). The staff intends to make a preliminary version of the 

draft regulatory basis publicly available on or about March 8, 2017 (but no earlier than 10 days 

after the date of this paper), to facilitate discussions at the upcoming Regulatory Information 

Conference. To collect a wide range of views that will support a fully informed decision on the 

proposed rule, the staff intends to publish the draft regulatory basis for a 90-day public comment 

period, beginning with the publication of a Federal Register notice in March 2017, instead of the 

typical 60-day public comment period. The draft regulatory basis referenced in the Federal 

Register notice will have a different accession number, but will have identical content other than 

removal of the “preliminary” markings. The staff also plans to conduct a public meeting during 

the comment period to discuss the draft regulatory basis. 

In the draft regulatory basis, the staff concludes that it has sufficient justification to proceed with 

rulemaking in the areas of EP, physical security, decommissioning trust funds, offsite and onsite 

financial protection requirements and indemnity agreements, and application of the backfit rule. 

The staff included all of these areas in the ANPR and received stakeholder feedback. Further, 

the staff is recommending rulemaking to: (1) require that the PSDAR contain a description of 

how the spent fuel stored under a general independent spent fuel storage installation license will 

be removed from the reactor site in accordance with the regulatory requirements in Title 10 of 

the Code of Federal Regulations (10 CFR), Section 50.82, 10 CFR 50.54(bb), 10 CFR 52.110, 

and/or 10 CFR 72.218 and (2) amend 10 CFR 51.53 and 10 CFR 51.95 to clarify that the 

requirement for a license amendment before decommissioning activities may commence 

applies only to non-power reactors, as specified in 10 CFR 50.82(b), in accordance with the 

1996 changes to the decommissioning regulations. 

At this time, the staff has determined that additional stakeholder input is needed prior to 

finalizing recommendations related to cyber security, drug and alcohol testing, certified fuel 

handler training and minimum staffing requirements, aging management, and fatigue 

management. The NRC received comments in these areas from the ANPR and intends to seek 

specific public input on these topics as part of the public comment request on the entire draft 

regulatory basis. 

In the draft regulatory basis, the staff concludes that regulatory activities other than 

rulemaking—such as guidance development—should be used to address concerns expressed 
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in comments on the ANPR regarding the appropriate role of State and local governments in the 

decommissioning process, the level of NRC review and approval of the PSDAR, and the 

60-year limit for power reactor decommissioning. 

In several regulatory areas, the staff has already identified options that may constitute 

backfitting. These areas include physical security, certified fuel handler minimum staffing and 

training requirements, current regulatory approach to decommissioning, aging management, 

and fatigue management. The staff will complete its analysis to show whether any of these 

areas would be necessary for adequate protection or constitute a cost-justified substantial 

increase in the protection of public health and safety or common defense and security. 

Additionally, to support the draft regulatory basis, the staff is preparing a preliminary draft 

regulatory analysis, which will be made available for public comment in the near term. The 

preliminary draft regulatory analysis will contain the staff’s initial analysis of the costs and 

benefits associated with each regulatory option considered in the draft regulatory basis. 

In addition to the areas addressed in the ANPR, the staff has included questions in the Federal 

Register regarding six additional areas that may be considered for inclusion in the power reactor 

decommissioning rulemaking: 

1) the use of the exemption process as part of transfer of a license issued under 

10 CFR Part 50, “Domestic Licensing of Production and Utilization Facilities,” to another 

entity (foreign or domestic) to perform decommissioning activities; 

2) consideration of a site-specific cost estimate in lieu of the NRC minimum 

decommissioning funding formula; 

3) whether or not security regulations in 10 CFR Part 37, “Physical Protection of Category 1 

and Category 2 Quantities of Radioactive Material,” are necessary for facilities 

undergoing decommissioning given requirements in 10 CFR Part 73, “Physical 

Protection of Plants and Materials”; 

4) consideration of an adjustment to the amount of primary liability insurance that power 

reactor licensees in decommissioning must maintain; 

5) whether or not the NRC should pursue regulatory alternatives to the current security plan 

change process in 10 CFR 50.54(p), given the high number of security plan changes 

that occur during decommissioning; and 

6) whether or not a potential safety basis exists for recommending a rulemaking to require 

licensees to establish community advisory boards to obtain and address external 

stakeholder feedback regarding decommissioning licensing activities, and if such a basis 

exists, whether or not this rule change would result in a cost-justified, substantial 

increase in public health and safety or common defense and security. 

Public comments on the draft regulatory basis will be considered in the development of the final 

regulatory basis. The staff will inform the Commission of the completion of the final regulatory 

basis in October 2017. The final regulatory basis will be used to inform the proposed rule that 

will be provided for Commission consideration in May 2018. 
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Evaluation of Options to Expedite Power Reactor Decommissioning Rulemaking 

Based on stakeholder feedback, the staff has explored options to expedite the power reactor 

decommissioning rulemaking. 

The staff considered bifurcating the rule—i.e., including the topics currently addressed via 

exemption in the “limited scope rulemaking” recommended by the Nuclear Energy Institute with 

additional topics in a subsequent rulemaking. Some stakeholders would be concerned with this 

approach as issues of concern to them would not be addressed until the later rulemaking. As 

the EP provisions that would be included in the earlier portion of the rule are complex and 

expected to have high stakeholder interest, bifurcating in this manner would also not result in 

significant time savings. In addition, bifurcation would require duplication of effort across 

multiple rulemakings. If the schedule for portions of the rule were expedited, the staff would 

have fewer opportunities to hold public meetings with stakeholders to discuss the development 

of the proposed expedited rule and would have less time available to address public comments 

as required by the Administrative Procedure Act. 

In addition, the staff considered forming a “tiger team” of NRC staff dedicated full-time to the 

power reactor decommissioning rulemaking effort. If this approach were taken, however, there 

could be a negative effect on the staff’s ability to conduct decommissioning licensing reviews in 

a timely manner. In some cases, the same technical reviewers are developing the power 

reactor decommissioning rulemaking and conducting licensing activities. This negative impact 

would be exacerbated if additional plants were to begin decommissioning before the final rule is 

issued. 

Also, there is not a compelling safety argument to expedite the power reactor decommissioning 

rulemaking, as licensees have consistently demonstrated their ability to safely decommission 

nuclear facilities within the existing regulatory framework. The power reactor decommissioning 

rulemaking is better characterized as an efficiency rulemaking that will establish a predictable 

and transparent decommissioning process. 

Overall, the staff concluded that these options would provide minimal benefits and potentially 

significant negative effects. Further, it is unlikely that a faster issuance of the rule would benefit 

any licensees that intend to decommission in the near term. Therefore, the staff will continue 

with the original plan in both rulemaking scope and schedule, and plans to provide a draft 

proposed rule to the Commission in May 2018. 

Efficiencies in Decommissioning Licensing Reviews 

The staff continues to realize efficiencies gained in conducting the licensing reviews of nuclear 

power plants undergoing decommissioning. The staff issued a decommissioning lessonslearned report as a publicly available document (ADAMS Accession No. ML16176A339) on 

November 7, 2016. This report highlights the efficiency gains and best practices from the staff’s 

reviews of decommissioning-related licensing actions for the Kewaunee Power Station; Crystal 

River Unit 3 Nuclear Generating Plant; San Onofre Nuclear Generating Station, Units 2 and 3; 

and Vermont Yankee Nuclear Power Plant. Notable efficiency gains include: use of 

pre-application meetings between NRC staff and the licensee, licensee submittal of licensing 

actions prior to cessation of operations, staff development of a regulatory basis for the review 

and approval of the certified fuel handler training program, licensee and staff leveraging 

precedents, and the staff’s use of interim staff guidance for reviews of decommissioning reactor 

emergency preparedness and security exemption requests. In implementing these lessons 
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learned, the staff is conducting more efficient reviews, which have resulted in a reduction of the 

review time needed for the various decommissioning licensing activities. 

The staff will continue to engage with Oyster Creek and Fort Calhoun to discuss planned 

licensing activities and will engage with the licensing staff for Palisades, Pilgrim, and Indian 

Point to understand the licensees’ plans for transitioning to decommissioning. This information 

will support the staff’s planning efforts and facilitate the completion of timely reviews of the 

decommissioning licensing activities. 

Coordination with Emergency Preparedness for Small Modular Reactors and Other New 

Technologies Rulemaking 

As stated in the rulemaking plan for the rulemaking on EP for Small Modular Reactors and 

Other New Technologies,1 the staff plans to draw upon the power reactor decommissioning 

rulemaking to inform the development of the technical basis, rule language, and guidance 

documents for this additional rule. As such, the staff will continue to assess and coordinate 

these two rulemaking activities. Following its normal processes, the staff will communicate to 

the Commission regarding the regulatory basis that is currently being developed for the EP for 

Small Modular Reactors and Other New Technologies rulemaking. 

Rulemaking Schedule Challenges 

The staff notes that the current schedule for the power reactor decommissioning rulemaking is 

challenging. For a typical rulemaking, the timeframe from issuance of the draft regulatory basis 

to delivery of the proposed rule to the Commission is approximately 15 months. In addition, a 

typical rulemaking schedule includes 13 months from the issuance of the proposed rule to 

delivery of the final rule to the Commission. Because of the extended comment period for the 

ANPR (from 45 days to 120 days) and the additional time needed to respond to numerous 

complex comments, approximately 50 percent less time is available for development of the 

proposed rule and the final rule, as compared to a typical rulemaking schedule. 

The staff intends to publish the draft regulatory basis for a 90-day public comment period and 

the proposed rule for the standard 75-day public comment period. The durations of these public 

comment periods were key planning assumptions provided by the staff as part of 

SECY-15-0014, “Anticipated Schedule and Estimated Resources for a Power Reactor 

Decommissioning Rulemaking,” dated January 30, 2015 (ADAMS Accession 

No. ML15082A089). 

The staff is exploring strategies to mitigate these schedule challenges. These strategies include 

implementing efficiencies throughout the rulemaking effort and following normal processes to 

explore additional resources, including contract support. Further, the staff will continue to 

regularly communicate the status of the rulemaking to NRC senior management and the 

Commission, when appropriate, including significant technical or scheduling challenges that 

may arise in order to facilitate prompt resolution. 

 

1 The Commission approved the staff’s rulemaking plan in the SRM dated June 22, 2016 (ADAMS Accession 

No. ML16174A166), associated with SECY-16-0069, “Rulemaking Plan on Emergency Preparedness for Small 

Modular Reactors and Other New Technologies,” dated May 31, 2016 (ADAMS Accession No. ML16020A388).
The Commissioners 6 

CONCLUSION: 

As noted above, the staff intends to make a preliminary version of the draft regulatory basis 

publicly available on or about March 8, 2017 (but no earlier than 10 days after the date of this 

paper), to facilitate discussions at the upcoming Regulatory Information Conference. The staff 

will then publish the draft regulatory basis for a 90-day public comment period, beginning with 

the publication of a Federal Register notice in March 2017. The staff will continue to follow its 

current plan, which includes providing the draft proposed rule for Commission review in May 

2018 with the goal of providing a final rule for Commission review in October 2019. 

The staff will keep the Commission informed of any issues that could result in additional delays 

to the decommissioning rulemaking schedule. 

COORDINATION: 

The Office of the General Counsel has reviewed this paper and has no legal objections. 

 /RA/ 

 Victor M. McCree 

 Executive Director 

 for Operations 
The Commissioners 7 

SECY PAPER: STATUS OF POWER REACTOR DECOMMISSIONING RULEMAKING 

ACTIVITIES AND LICENSING REVIEW EFFICIENCIES, DATED FEBRUARY 23, 2017. 

ADAMS Accession Number: ML16307A215 WITS: SRM-S14-0118-2 * via email 

OFFICE NRR/DPR/PRMB/PM NRR/DPR/PRMB/PM NRR/DPR/PRMB/RS Tech Ed* 

NAME JTobin JCarneal GLappert CHsu 

DATE 11/2/2016 11/2/2016 11/2/2016 11/14/2016 

OFFICE NRR/DPR/PRMB/BC NRR/DPR/D* NRR/DORL/D* NSIR/DPR/D* 

NAME MKhanna LLund (GBowman for) ABoland MBailey (BPham for) 

DATE 1/14/2017 2/15/2017 12/30/2016 2/16/2017 

OFFICE NSIR/D* OGC NRR/D EDO 

NAME BHolian (BPham for) HBenowitz WDean VMcCree 

DATE 2/16/2017 2/16/2017 2/16/2017 2/23/2017 

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