This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

30550

Vol. 65, No. 93

Friday, May 12, 2000

NUCLEAR REGULATORY

COMMISSION

10 CFR Part 50

[Docket No. PRM–50–70]

Eric Joseph Epstein; Receipt of

Petition for Rulemaking

AGENCY: Nuclear Regulatory

Commission.

ACTION: Petition for rulemaking; Notice

of receipt.

SUMMARY: The Nuclear Regulatory

Commission (NRC) has received and

requests public comment on a petition

for rulemaking filed by Mr. Eric Joseph

Epstein. The petition, docketed on

January 3, 2000, has been assigned

Docket No. PRM–50–70. The petitioner

requests that NRC amend its financial

assurance requirements for

decommissioning nuclear power

reactors to: (1) Require uniform

reporting and recordkeeping for all

‘‘proportional owners’’ of nuclear

generating stations (defined by the

petitioner as partial owners of nuclear

generating stations who are not

licensees); (2) modify and strengthen

current nuclear decommissioning

accounting requirements for

proportional owners; and (3) require

proportional owners to conduct a

prudency review to determine a

balanced formula for decommissioning

funding that includes not only

ratepayers and taxpayers but

shareholders and board members of

rural electric cooperatives as well. The

petitioner believes that the proposed

amendments would eliminate the

funding gap for decommissioning

between nuclear power licensees and

proportional owners of nuclear

generating stations.

DATES: Submit comments by July 26,

2000. Comments received after this date

will be considered if it is practical to do

so, but the Commission is able to assure

consideration only for comments

received on or before this date.

ADDRESSES: Mail comments to:

Secretary, U.S. Nuclear Regulatory

Commission, Washington, DC 20555–

0001, Attention: Rulemakings and

Adjudications Staff.

Deliver comments to: 11555 Rockville

Pike, Rockville, Maryland, between 7:30

a.m. and 4:15 p.m. on Federal workdays.

For a copy of the petition, write to

David L. Meyer, Chief, Rules and

Directives Branch, Division of

Administrative Services, Office of

Administration, U.S. Nuclear Regulatory

Commission, Washington, DC 20555–

0001.

You may also provide comments via

the NRC’s interactive rulemaking

website at http://ruleforum.llnl.gov.

This site allows you to upload

comments as files in any format, if your

web browser supports the function. For

information about the interactive

rulemaking website, contact Carol

Gallagher, (301) 415–5905 email:cag@nrc.gov.

The petition and copies of comments

received may be inspected and copied

for a fee at the NRC Public Document

Room, 2120 L Street, NW. (Lower

Level), Washington, DC.

FOR FURTHER INFORMATION CONTACT:

David L. Meyer, Chief, Rules and

Directives Branch, Division of

Administrative Services, Office of

Administration, U.S. Nuclear Regulatory

Commission, Washington, DC 20555–

0001, Telephone: 301–415–7162 or Toll

Free: 1–800–368–5642 or email:dlm1@nrc.gov.

SUPPLEMENTARY INFORMATION:

The Petitioner

The petitioner, Eric Joseph Epstein,

has been actively involved since 1985 in

testifying, filing, and intervening on

nuclear decommissioning and

radioactive waste isolation issues before

the NRC and the Pennsylvania Public

Utility Commission. The petitioner’s

research and testimony have focused on

Peach Bottom, Units 1, 2, and 3; the

Saxton Experimental Reactor;

Shippingport Atomic Power Station; the

Susquehanna Steam Electric Station

(SSES), Units 1 and 2; and Three Mile

Island (TMI), Units 1 and 2. The

petitioner states that he and General

Public Utilities Nuclear (GPUN)

sponsored and invested $890,000 in

remote robotics research relating to

nuclear decommissioning.

Petitioner’s Concern

Mr. Epstein submitted his petition for

rulemaking because he believes the

funding component for

decommissioning provided by

proportional owners of nuclear

generating stations, including rural

electric cooperatives (RECs), is fatally

flawed and likely to contribute to

inadequate funding.

The petitioner states that proportional

owners are not required to submit

periodic cost projections, conduct sitespecific studies, or coordinate with the

power reactor licensee. Also, the

petitioner states that proportional

owners are not mandated by the NRC to

verify, report, or monitor recordkeeping

relating to nuclear decommissioning

funding mechanisms.

The petitioner believes it is grossly

unfair and inequitable to require Federal

taxpayers and State ratepayers to

provide a financial safety net for the

nuclear investments of proportional

owners. The petitioner offers the

following reasons to support his belief:

(1) Proportional owners, including

RECs, aggressively supported

construction, licensing, and operation of

nuclear generating stations; (2) they

were fully cognizant that no commercial

nuclear reactor had been

decommissioned, and that a solution to

nuclear waste disposal did not exist; (3)

neither the utility, industry,

proportional owners, nor RECs, have

actively sponsored decommissioning

research or sought good faith solutions

to the permanent storage and isolation

of low-level and high-level radioactive

waste; and (4) proportional owners and

RECs, willfully pursued a financial

investment in nuclear energy which

they knew was fraught with huge

uncertainties.

Background

Definition of an Electric Utility

The petitioner states that utility

deregulation has caused concern

regarding future rate recovery for the

nuclear industry. The petitioner

explains that NRC had anticipated the

nuclear industry’s financial

apprehension and acted accordingly by

promulgating regulations to resolve the

industry’s concern. The petitioner notes

that the NRC published proposed

amendments on September 10, 1997 (62

FR 47588), in response to the potential

deregulation of the power generating

Federal Register / Vol. 65, No. 93 / Friday, May 12, 2000 / Proposed Rules 30551

industry and to questions as to whether

it should modify its current regulations

concerning decommissioning funds and

their financial mechanisms. The

proposed rule was issued as a final rule

on September 22, 1998 (63 FR 50465),

a fact not indicated by the petitioner.

The petitioner states that the NRC

extended the definition of an ‘‘electric

utility’’ to include:

An entity whose rates are established by a

regulatory authority by mechanisms that

cover only a portion of the costs collected in

this manner. Public utility districts,

municipalities, rural electric cooperatives

and State and Federal agencies, including

associations of any of the foregoing, that

establish their own rates are included within

the meaning of ‘‘electric utility.’’ (Section

50.2, Definitions, [September 10, 1997; 62 FR

47605].)

However, according to the petitioner,

the NRC created a legal loophole for

proportional owners and RECs, by

limiting reporting and recordkeeping

requirements to ‘‘power reactor

licensees,’’ thus enabling partial owners

to be free from NRC scrutiny. The

petitioner recommends that NRC

mandate that all partial owners of

nuclear generating stations, including

RECs, be subject to reporting and

recordkeeping requirements and prefunding thresholds and timetables in

Section 50.75 (a) through (e).

Current Problems Associated With Cost

Estimates for Radiological

Decommissioning

The petitioner questions the

reliability of nuclear decommissioning

cost projections provided by industry

consultant, Thomas LaGuardia, and

TLG, Inc. The petitioner states that TLGbased decommissioning estimates on

flawed and specious field studies

extrapolated from small, minimally

contaminated, and prematurely shutdown nuclear reactors.

The petitioner states that wild

fluctuation in the cost estimates for

radiological decommissioning are

attributable to the lack of actual

decommissioning experience at large

nuclear generating stations, over 1000

megawatts electric (MWe), or at plants

that have operated for their full,

planned lifespan. The petitioner

indicates that the largest nuclear power

plant to be fully decommissioned was

Shippingport Atomic Power Station, a

72 MWe light-water breeder reactor that

is substantially smaller than SSES,

Units 1 and 2 (1050 MWe for each unit).

The petitioner states that TLG, Inc.,

admitted that Shippingport was ‘‘almost

like a pilot plant.’’ The petitioner

believes that the immense differences

between Shippingport and the SSES

make any financial comparison between

the two inadequate and baseless. The

petitioner states that although several

other nuclear reactors are being

prepared for decommissioning, they

provide little meaningful

decommissioning experience that could

be used to reliably predict the

decommissioning costs of SSES. As

examples, the petitioner provides

detailed discussions regarding the

decommissioning cases of Yankee Rowe

and Shoreham.

The petitioner states that no

commercial nuclear power plant has

been decommissioned, decontaminated,

and returned to free-release. According

to the petitioner, nuclear

decontamination and decommissioning

technologies are in their infancy. The

petitioner characterizes the NRC’s

treatment of prematurely shutdown

reactors as follows: (1) There is a

reluctance to undertake, initiate or

finance decommissioning research; (2)

prematurely shutdown reactors place an

additional financial strain on the

licensee; and (3) these reactors have

been retired for mechanical or economic

reasons. [United States Nuclear

Regulatory Commission, Advisory Panel

for the Decommissioning of Three Mile

Island Unit-2, September 23, 1993].

The petitioner states that

Pennsylvania Power and Light, Inc.

(PP&L) contracted with TLG to construct

decommissioning cost estimates based

on work completed at Shippingport,

Shoreham, Yankee Rowe, and small

prototype reactors such as: BONUS (17

MWe), Elk River (20 MWe), and

Pathfinder (60 MWe). The petitioner

asserts that TLG’s estimates relied on:

(1) The development of nonexistent

technologies; (2) anticipated projected

cost of radioactive disposal; and (3) the

assumption that costs for

decommissioning small and short-lived

reactors can be accurately extrapolated

to apply to large commercial reactors

operating for 40 years.

The petitioner indicates that in 1981,

PP&L predicted that its share to

decommission SSES would be between

$135 and $191 million. The petitioner

notes that estimate has increased by at

least 553 percent in the last 19 years.

Proportional Confusion: The Case of the

Allegheny Electric Cooperative and

Pennsylvania Power and Light, Inc.

The petitioner questions Allegheny

Electric Cooperative’s (Allegheny)

method for calculating

decommissioning cost. The petitioner

states that Allegheny owns 10 percent of

the SSES, while PP&L owns 90 percent.

The petitioner states that Allegheny is

responsible for 10 percent of the

projected funding target for

decommissioning. The petitioner states

that PP&L’s consultant, TLG, estimates

PP&L’s share for decommissioning SSES

to be $724 million. Therefore, according

to the petitioner, Allegheny’s share

would be $79 million of the $804

million projected cost for

decommissioning. However, the

petitioner asserts that Allegheny has set

aside only 5 percent (rather than 10

percent) of its projected share of the cost

of decommissioning. According to the

petitioner, the Allegheny’s Director of

Finance and Administrative Service

states that Allegheny is basing its

decommissioning estimates on data

provided by PP&L ( i.e., Allegheny’s

portion of the estimated cost of

decommissioning SSES is

approximately $37.8 million and is

being accrued over the estimated useful

life of the plant). The petitioner asserts

that Allegheny does not know what

method it is employing to calculate

decommissioning cost. In addition,

PP&L does not actively monitor

Allegheny’s obligations.

The petitioner characterizes the

uncertainty between decommissioning

partners as crucial and potentially

debilitating and believes that the

question of financial responsibility is

increasingly important since PP&L has

no enforcement mechanism to compel

Allegheny to fund 10 percent of the

decommissioning cost. The petitioner

adds that Allegheny is owned and

controlled by 14 distribution

cooperatives. Allegheny is not regulated

by the Public Utility Commission (PUC)

and does not have publicly traded stock.

Therefore, the petitioner assets there is

no behavior modifying mechanism to

allow State regulators or PP&L

shareholders to oversee Allegheny’s

contributions.

The petitioner believes that

Allegheny’s tenuous financial position

regarding decommissioning savings will

place a greater fiscal burden on PP&L

by: (1) Creating further uncertainties

about PP&L’s ability to meet its financial

commitments to decommission SSES;

(2) undermining TLG’s net

decommissioning estimates; and (3)

radically skewing TLG’s contingency

factor. The petitioner asserts that if this

scenario is realized by other power

reactor licensees and their proportional

partners, the ripple effect could be

staggering and could potentially expose

ratepayers and taxpayers to billions of

dollars in nuclear decommissioning

shortfalls. In addition, the petitioner

states that although the NRC requires

that all nuclear power plants be

returned to greenfield, i.e., the original

environmental status of the facilities

30552 Federal Register / Vol. 65, No. 93 / Friday, May 12, 2000 / Proposed Rules

prior to construction, it does not

mandate cost estimates for nonradiological decommissioning.

Furthermore, the petitioner asserts that

greenfield has not been achieved by any

large commercial nuclear plant, and

utilities are not required to save for the

mandated restoration; therefore, placing

additional strain on the companies’

ability to finance radiological and nonradiological decommissioning.

Planned Operating Life for Nuclear

Generating Stations

The petitioner states that experience

at large commercial nuclear power

plants over 200 MW has clearly

demonstrated that TLG’s assumption

that nuclear units will operate for 40

years contradicts existing nuclear

experience. The petitioner has

identified and provided detailed

information on 13 nuclear power plants

that have shut down prematurely. The

petitioner states that a sense of fair play,

intergenerational equity, and fiduciary

accountability should direct

proportional owners, including RECs, to

plan for decommissioning on the basis

of the assumption that their nuclear

units will prematurely shut down. The

petitioner adds that operating capacity

and historical evidence from

commercial nuclear power plants do not

indicate that nuclear power plants will

operate for 40 years. The petitioner

assesses that there are chronic shortfalls

between targeted funding levels and

actual costs for nuclear

decommissioning. The petitioner asserts

that the burden of proof lies with the

power reactor licensees and their

partners to demonstrate that the 40-year

lifespan that they predicate their

financial planning upon is realistic. The

petitioner believes the nuclear industry

has exacerbated this problem by

refusing to provide adequate funding for

nuclear decontamination and

decommissioning.

Spent Fuel Isolation

The petitioner states that a significant

problem for nuclear generating stations

is that the fuel storage capacity will be

exhausted before the plant license

expires. The petitioner states that

because there is no location to store

spent fuel permanently, nuclear

facilities have become de facto highlevel, radioactive waste sites, and many

are currently proposing to increase the

capacity to store this waste using an

untested, commercial waste technology

(dry cask storage). The petitioner

contends that the additional cost of

increasing the capacity of spent fuel will

have a significant effect on

decommissioning. The petitioner notes

that at SSES, spent fuel costs were

omitted from TLG’s decommissioning

estimate. The petitioner explains that:

(1) Isolation of high-level radioactive

waste, which is primarily composed of

spent nuclear fuel, cannot be separated

from nuclear decommissioning; (2) at

the earliest, Yucca Mountain, the

designated repository for the storage of

nuclear waste, will be available in 2010;

(3) nuclear generating stations cannot be

immediately decontaminated and

decommissioned with spent fuel on site

or inside the vessel; (4) aggressive and

destructive decontamination cleanup

processes will be unavailable until

spent fuel is removed from the nuclear

plant’s temporary storage facilities; (5)

front-end decommissioning tasks

require skilled workers for site-specific

tasks; and (6) labor costs are erratic and

should be linked to inflationary indices.

The petitioner charges that NRC and

the nuclear industry devote scant

resources to decommissioning research

and development. The petitioner

believes that this laissez-faire approach

should not be rewarded by financially

penalizing ratepayers and taxpayers.

The petitioner warns that if a long-term

solution to spent fuel isolation is not

found in the near future, many nuclear

generating stations will be shut down

prematurely because of a lack of storage

space. Therefore, the petitioner believes

that cost projections by proportional

owners and RECs, must include variable

funding scenarios in the event a highlevel radioactive isolation site is not

available during a premature shutdown,

or at the end of a plant’s planned 40-

year operating life span.

Low-Level Radioactive Waste Isolation

The petitioner states that TLG

provided nuclear waste storage and

nuclear decommissioning cost estimates

for all Pennsylvania utilities regulated

by the PUC. The petitioner states that

TLG’s representative based his cost

estimates for low-level radioactive waste

(LLRW) disposal on the assumption that

the Appalachian Compact would be

available when SSES closes (1995 PP&L

Base Rate Case, Page 1034, Lines 17–20).

The petitioner states that the

representative concluded that the

disposal of LLRW is the most expensive

component in the decommissioning

formula (Page 2091, Lines 21–25);

however, the representative conceded

that it may be necessary to recompute

cost estimates for disposal because the

Barnwell storage facility for LLRW will

be open for 7 to 10 years for all states

except North Carolina (Page 2108, Lines

4–9). The petitioner notes that PP&L has

not reconfigured the cost of LLRW

disposal since Barnwell opened July 5,

1995.

The petitioner asserts that in addition

to recomputing the cost of LLRW

disposal, the reopening of Barnwell has

definitely postponed the siting of a

waste facility in Pennsylvania. The

petitioner notes the Appalachian States

LLRW Commission Executive Director

observed: ‘‘If Barnwell’s going to be

open to the entire country for at least

the next 10 years, is there really a

pressing need to continue work on

regional disposal facilities?’’ The

petitioner states that on June 18, 1998,

the Appalachian States LLRW

Commission voted to support the

Pennsylvania Department of

Environmental Protection’s suspension

of the siting process for an LLRW

disposal facility.

Court Cases

The petitioner states that United

States regulatory law has never

recognized the right of utilities to

recover imprudent, highly speculative

utility expenditures, citing Bluefield

Water Works & Improvement Company

v. Public Service Commission of the

State of West Virginia, 262 U.S. 668, 678

(1923) and State of Missouri ex rel.

Southwestern Bell Telephone Company

v. Public Service Commission of

Missouri, 262 U.S. 276, 289 (1923).

The petitioner has included detailed

information from other court cases that

recommend prudency review of

requests by utilities for rate increases.

The petitioner asserts that the concerns

expressed in the various court cases

discussed in this petition by the

commissions vested with the

responsibility of approving rate hike

requests, tax increases, and recovery of

new construction costs, are valid and

applicable to the issue of imprudent

‘‘stranded costs’’ and grossly inadequate

decommissioning projections. The

petitioner recommends that an

extensive prudency review of the costs

incurred by power reactor licensees,

their partners, and RECs, in the

construction of nuclear power plants

and subsequent decisions by the owners

and operators in their continuing

operation is mandated by the

speculative and imprudent nature of

corporate management.

Petitioner’s Conclusion

The petitioner states that data clearly

demonstrate that the majority of

commercial nuclear power plants will

not operate through their planned

operating life of 40 years. The petitioner

believes that while the power reactor

licensees are entitled to recover a

portion of decommissioning funding

Federal Register / Vol. 65, No. 93 / Friday, May 12, 2000 / Proposed Rules 30553

through the rate and tax relief processes,

they are not entitled to a full and

complete rebate on ‘‘stranded

investments’’ and shortfalls that will

arise because funding targets for

decommissioning have been

underfunded. The petitioner believes

that shareholders and board members of

electric utilities and RECs, must assume

responsibility for their business

decision. The petitioner adds that to

allow artificial definitions concerning

ownership of nuclear power plants to

insulate those who cogently made

capital investments is immoral,

unethical, and an endorsement of

corporate socialism. The petitioner

asserts that shareholders profit from

imprudent investment decisions and are

accorded relief when error of

mismanagement becomes manifest. The

petitioner believes that society, the

nuclear industry, proportional owners

and RECs, must assume responsibility

for their investment strategies.

Remedies

The petitioner recommends the

following remedies:

1. RECs, and proportional partners of

nuclear generating stations that are not

specified as the power reactor licensee

must conduct a revised and updated

site-specific analysis biennially based

on prevailing realities that include a

recognition that the NRC is redefining

the concept of ‘‘electric utility’;

scientifically verifiable cost projections

for the nuclear decommissioning

‘‘target’; premature shutdowns of a

substantial number of commercial

nuclear generating stations; dry cask

storage planning and construction; the

asserted indisputable fact that Yucca

Mountain will not be available at the

time the spent fuel capacity has been

breached at many operating nuclear

generating stations; and, the asserted

reality that the concept of regional lowlevel waste facilities has been

supplanted by the extended operating

life of ‘‘low-level’’ radioactive waste

facilities.

2. Prevailing legal precedent

undermines the notion that nuclear

partnerships are entitled to full rate

relief from present ratepayers and

taxpayers for nuclear decommissioning

costs. A sense of fair play,

intergenerational equity, and risk

sharing between ratepayers and

taxpayers on one hand, and

shareholders and board members on the

other, necessitate that the NRC direct

and extend the conditions and mandates

promulgated in Section 50.75, Reporting

and Recordkeeping for

Decommissioning Planning, (a), (b), (c),

(d), (e), and (f), to include all partners

in nuclear generating stations, including

board members of RECs; and,

3. After implementing remedies (1)

and (2), NRC must compel proportional

owners of nuclear power generating

stations, including RECs, to conduct

prudency reviews.

The petition, which consists of a 37-

page brief, provides additional

justification and support for the

requested amendments not included in

this Federal Register notice. The NRC

requests that commenters consider,

among other matters raised by

petitioner, whether all of the remedies

requested by petitioner are within the

regulatory scope and jurisdiction of the

NRC. By publishing this notice, the NRC

is not concluding that it has jurisdiction

over all of petitioner’s requested

remedies. Members of the public

interested in filing comments on PRM–

50–70 are urged to obtain a copy of the

petition by writing to the address under

ADDRESSES or by viewing the petition at

the NRC website at http://

ruleforum.llnl.gov.

Dated at Rockville, Maryland this 8th date

of May 2000.

For the Nuclear Regulatory Commission.

Annette Vietti-Cook,

Secretary of the Commission.

[FR Doc. 00–11955 Filed 5–11–00; 8:45 am]

BILLING CODE 7590–01–P

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. 2000–NM–91–AD]

RIN 2120–AA64

Airworthiness Directives; Boeing

Model 767 Series Airplanes

AGENCY: Federal Aviation

Administration, DOT.

ACTION: Notice of proposed rulemaking

(NPRM).

SUMMARY: This document proposes the

adoption of a new airworthiness

directive (AD) that is applicable to

certain Boeing Model 767 series

airplanes. This proposal would require

installation of sleeving on the 90-minute

auxiliary power unit (APU) standby

power feeder cable at body station 1351.

This proposal is prompted by a report

of damage to the 90-minute APU

standby power feeder cable caused by

shifting of unrestrained cargo containers

during flight. The actions specified by

the proposed AD are intended to

prevent damage to the 90-minute APU

standby power feeder cable, which

could result in arcing between the

standby power feeder cable and the

shroud of the APU fuel line, penetration

of the fuel line shroud, and a

consequent fire in the main deck floor

above the aft cargo compartment.

DATES: Comments must be received by

June 26, 2000.

ADDRESSES: Submit comments in

triplicate to the Federal Aviation

Administration (FAA), Transport

Airplane Directorate, ANM–114,

Attention: Rules Docket No. 2000–NM–

91–AD, 1601 Lind Avenue, SW.,

Renton, Washington 98055–4056.

Comments may be inspected at this

location between 9:00 a.m. and 3:00

p.m., Monday through Friday, except

Federal holidays.

The service information referenced in

the proposed rule may be obtained from

Boeing Commercial Airplane Group,

P.O. Box 3707, Seattle, Washington

98124–2207. This information may be

examined at the FAA, Transport

Airplane Directorate, 1601 Lind

Avenue, SW., Renton, Washington.

FOR FURTHER INFORMATION CONTACT:

Holly Thorson, Aerospace Engineer,

Propulsion Branch, ANM–140S, FAA,

Transport Airplane Directorate, Seattle

Aircraft Certification Office, 1601 Lind

Avenue, SW., Renton, Washington

98055–4056; telephone (425) 227–1357;

fax (425) 227–1181.

SUPPLEMENTARY INFORMATION:

Comments Invited

Interested persons are invited to

participate in the making of the

proposed rule by submitting such

written data, views, or arguments as

they may desire. Communications shall

identify the Rules Docket number and

be submitted in triplicate to the address

specified above. All communications

received on or before the closing date

for comments, specified above, will be

considered before taking action on the

proposed rule. The proposals contained

in this notice may be changed in light

of the comments received.

Comments are specifically invited on

the overall regulatory, economic,

environmental, and energy aspects of

the proposed rule. All comments

submitted will be available, both before

and after the closing date for comments,

in the Rules Docket for examination by

interested persons. A report

summarizing each FAA-public contact

concerned with the substance of this

proposal will be filed in the Rules

Docket.

Commenters wishing the FAA to

acknowledge receipt of their comments

submitted in response to this notice