II

106TH CONGRESS

1ST SESSION S. 1793

To ensure that there will be adequate funding for the decommissioning of

nuclear power facilities.

IN THE SENATE OF THE UNITED STATES

OCTOBER 26, 1999

Mr. DOMENICI introduced the following bill; which was read twice and referred

to the Committee on Environment and Public Works

A BILL

To ensure that there will be adequate funding for the

decommissioning of nuclear power facilities.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Nuclear Decommis5 sioning Assurance Act of 1999’’.

6 SEC. 2. FINDINGS AND PURPOSES.

7 (a) FINDINGS.—Congress finds that—

8 (1) full, safe decommissioning of nuclear power

9 plants is a compelling Federal interest, in that—
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1 (A) the public health and safety and the

2 protection of the environment can be guaran3 teed only if nuclear power plants are adequately

4 decommissioned at the end of their useful lives;

5 and

6 (B) decommissioning obligations cannot be

7 avoided, abandoned, or mitigated, as a matter

8 of public health and safety;

9 (2) electric utilities that own nuclear power

10 plants must be able to collect adequate revenues to

11 ensure that the utilities can satisfy the obligation to

12 fully decommission nuclear power plants in accord13 ance with standards established by the Nuclear Reg14 ulatory Commission;

15 (3) the authority of the Nuclear Regulatory

16 Commission to ensure that utilities are able to col17 lect adequate funds so that they can satisfy the de18 commissioning obligation is limited by the fact that

19 the Commission does not directly establish rates for

20 electric services;

21 (4) many nuclear decommissioning trust funds

22 are not adequate to meet decommissioning obliga23 tions, and the current electric rates of collection are

24 not adequate to ensure that there will be adequate

25 funds at the time of decommissioning.
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1 (5) potential restructuring of the electric utility

2 industry will exacerbate the problem, because com3 petitive pressure is expected to be placed on current

4 rates, thereby threatening the ability of utility enti5 ties to recover funds for decommissioning in electric

6 rates; and

7 (6) there is a Federal interest in establishing a

8 national policy to ensure that electric utilities that

9 own nuclear power plants can recover funds suffi10 cient to satisfy the decommissioning obligation.

11 (b) PURPOSES.—The purposes of this Act are—

12 (1) to ensure that electric utilities that own

13 commercial nuclear electric generating plants will be

14 able to satisfy the obligation to decommission the

15 plants, as established by the Nuclear Regulatory

16 Commission; and

17 (2) to provide ratemaking bodies, including the

18 Federal Energy Regulatory Commission, with suffi19 cient authority to provide for recovery of funds for

20 decommissioning.

21 SEC. 3. DEFINITIONS.

22 In this Act:

23 (1) DECOMMISSION.—The term ‘‘decommis24 sion’’ has the meaning given the term in section
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1 50.2 of title 10, Code of Federal Regulations (or any

2 successor regulation).

3 (2) DECOMMISSIONING OBLIGATION.—The term

4 ‘‘decommissioning obligation’’ means the obligation

5 to pay costs associated with the measures necessary

6 to ensure the continued protection of the public from

7 the dangers of any residual radioactivity or other

8 hazards present at a facility when a nuclear unit is

9 decommissioned.

10 (3) NUCLEAR DECOMMISSIONING TRUST

11 FUND.—The term ‘‘nuclear decommissioning trust

12 fund’’ has the meaning given the term ‘‘external

13 sinking fund’’ in section 50.75(e)(1)(ii) of title 10,

14 Code of Federal Regulations (or any successor regu15 lation).

16 (4) STATE COMMISSION.—The term ‘‘State

17 commission’’ has the meaning given the term in sec18 tion 3 of the Federal Power Act (16 U.S.C. 796).

19 SEC. 4. NUCLEAR DECOMMISSIONING ASSURANCE DETER20 MINATION BY THE NUCLEAR REGULATORY

21 COMMISSION.

22 (a) PETITION.—

23 (1) IN GENERAL.—A licensee under part 50 of

24 title 10, Code of Federal Regulations may petition
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1 the Nuclear Regulatory Commission for a deter2 mination of whether—

3 (A) adequate amounts have been deposited

4 or are being deposited in the nuclear decommis5 sioning trust fund of the licensee; and

6 (B) the future funding for any nuclear

7 power plant owned in whole or in part by the

8 licensee is assured.

9 (2) CONTENTS.—A petition under paragraph

10 (1) shall disclose—

11 (A) the licensee’s current minimum

12 amount established by the Nuclear Regulatory

13 Commission under section 50.75 of title 10,

14 Code of Federal Regulations for each facility

15 for which the licensee holds a license;

16 (B) the currently effective rates to recover

17 costs for decommissioning obligations as estab18 lished by the Commission or State commissions,

19 as appropriate;

20 (C) the amount that has been deposited in

21 the nuclear decommissioning trust fund;

22 (D) the planned rate and timing of collec23 tion of the costs of the decommissioning obliga24 tion through the projected useful life of the fa25 cility; and
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1 (E) any other information pertinent to the

2 continuing assurance of funding of the nuclear

3 decommissioning trust fund.

4 (b) DETERMINATION.—Not later than 180 days of

5 receipt of a petition under paragraph (1), the Nuclear

6 Regulatory Commission shall issue a determination re7 garding whether the nuclear decommissioning trust fund

8 and the currently approved level of rates to recover the

9 costs of the decommissioning obligation are adequate to

10 ensure full and safe decommissioning of the facility.

11 (c) CONSIDERATIONS.—In making a determination

12 under subsection (b), the Nuclear Regulatory Commission

13 shall consider.—

14 (1) the current level of funds in the nuclear de15 commissioning trust fund;

16 (2) the adequacy of the currently approved

17 rates to recover the costs of the decommissioning ob18 ligation;

19 (3) the assurance of continuing recovery of such

20 costs through rates;

21 (4) the timing of the recovery of such costs rel22 ative to the projected useful life of the plant; and

23 (5) any other information that the Nuclear

24 Regulatory Commission considers pertinent to a de-
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1 termination of the necessary assurance of adequate

2 funding.

3 (d) ADEQUACY OF MINIMUM AMOUNTS.—Nothing in

4 this Act precludes the Nuclear Regulatory Commission

5 from revising or reconsidering the adequacy of the min6 imum amounts established under section 50.75(c) of title

7 10, Code of Federal Regulations.

8 (e) NOTICE.—The Nuclear Regulatory Commission

9 shall issue notice of its finding to the licensee, the Federal

10 Energy Regulatory Commission, and any other party of

11 record.

12 SEC. 5. AMENDMENT OF THE FEDERAL POWER ACT.

13 (a) DECLARATION.—Section 201 of the Federal

14 Power Act is amended by adding at the end the following:

15 ‘‘(h) DECLARATION REGARDING DECOMMIS16 SIONING.—The decommissioning of nuclear power plants

17 licensed by the Commission is affected with a public inter18 est, and the Federal regulation of matters relating to de19 commissioning of nuclear power plants, to the extent pro20 vided in this part, is necessary in the public interest.’’.

21 (b) NUCLEAR DECOMMISSIONING ASSURANCE.—Part

22 II of the Federal Power Act (16 U.S.C. 824 et seq.) is

23 amended by adding at the end the following:

24 ‘‘SEC. 215. NUCLEAR DECOMMISSIONING ASSURANCE.

25 ‘‘(a) COST RECOVERY IN WHOLESALE RATES.—
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1 ‘‘(1) IN GENERAL.—To the extent that the

2 costs of a decommissioning obligation are recovered

3 in wholesale rates, an electric utility that owns a nu4 clear power facility in whole or in part may apply to

5 the Commission for an order approving rates and

6 charges in connection with the wholesale trans7 mission or sale of electricity to ensure collection of

8 revenues necessary to ensure that there will be ade9 quate funding to satisfy the decommissioning obliga10 tion of the electric utility in establishing rates and

11 charges.

12 ‘‘(2) NUCLEAR DECOMMISSIONING ASSURANCE

13 DETERMINATION.—In a proceeding under this sec14 tion, any nuclear decommissioning assurance deter15 mination made in a proceeding under section 4 of

16 the Nuclear Decommissioning Assurance Act of

17 1999 shall be conclusive.

18 ‘‘(3) DENIAL OF REQUEST.—If the Commis19 sion, by order or by failure to act with 180 days of

20 the filing of a petition, denies in whole or in part an

21 application under paragraph (1) or otherwise fails to

22 allow collection of costs in rates necessary to ensure

23 adequate funding under section 4 of the Nuclear De24 commissioning Assurance Act of 1999, the electric
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1 utility may seek review of the action under section

2 313(b).

3 ‘‘(b) COST RECOVERY IN RETAIL RATES.—To the ex4 tent that the costs of the decommissioning obligation are

5 recovered in retail rates, in a proceeding before a State

6 commission initiated by an electric utility that owns a nu7 clear power plant in whole or in part for an order approv8 ing rates and charges in connection with the distribution

9 of electricity, any nuclear decommissioning assurance de10 termination made by the Commission under section 4 of

11 the Nuclear Decommissioning Assurance Act of 1999 shall

12 be given due consideration, so as to ensure collection of

13 revenues necessary to ensure adequate funding of the nu14 clear-owning utility’s nuclear decommissioning obligations.

15 ‘‘(c) RATES, TERMS, AND CONDITIONS.—

16 ‘‘(1) IN GENERAL.—The Commission and the

17 State commissions shall establish rates, terms, and

18 conditions in response to an application under sub19 section (a) or (b) not later than 180 days after the

20 date of submission of the application.

21 ‘‘(2) FAILURE TO ACT.—For purposes of sec22 tion 313(b), failure of the Commission to comply

23 with paragraph (1) shall be considered a denial and

24 shall be appealable as a final agency action.
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1 ‘‘(d) DENIAL OF REQUEST BY STATE COMMISSION.—

2 Notwithstanding any other provision of law, if a State

3 commission, by order or by failure to act within 180 days

4 of the filing of a petition, denies in whole or in part the

5 request under subsection (b) or otherwise fails to allow

6 collection of costs in rates necessary to ensure adequate

7 funding under section 4(b) of the Nuclear Decommis8 sioning Assurance Act of 1999, the electric utility may

9 apply to the United States district court for an order re10 quiring the State commission to establish rates, terms,

11 and conditions necessary to ensure adequate funding

12 under section 4(b) of the Nuclear Decommissioning Assur13 ance Act of 1999.’’.

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