SUPPLEMENTARY INFORMATION:

I. Background

On June 21, 2023, the NRC issued a Federal Register notice (88 FR 40337) soliciting public comment on its draft ISG, “Use of the Decommissioning Trust Fund During Operations for Major Radioactive Component Disposal.” The NRC received comments from Lili Lamar Shari Laskowitz, by letter dated August 20, 2023 (ADAMS Accession No. ML23236A525), Paul Saunders, by letter dated June 29, 2023 (ADAMS Accession No. ML23181A049), Lili Lamar Zucker Ashley Humphries, by letter dated August 20, 2023 (ADAMS Accession No. ML23236A527), John J. Sipos, by letter dated September 13, 2023 (ADAMS Accession No. ML23262B451), the Appalachian Compact Commission, by letter dated July 28, 2023 (ADAMS Accession No. ML23236A522), the Nuclear Energy Institute, by letter dated August 21, 2023 (ADAMS Accession No. ML23236A529), EnergySolutions, by letter dated August 21, 2023 (ADAMS Accession No. ML23236A528) and from Constellation Energy Generation, LLC, by letter dated August 21, 2023 (ADAMS Accession No. ML23236A531). No other comments were submitted. The NRC staff considered those comments in developing the final version of the ISG. The staff's responses to the comments are provided in Appendix A, “Disposition of Public Comments,” of the final ISG.

This ISG is intended to provide clarifying guidance to facilitate stakeholder understanding of the NRC's position on the use of the DTF during operations for MRC disposal. The NRC's reactor licensing regulations in part 50 of title 10 of the Code of Federal Regulations (10 CFR), “Domestic Licensing of Production and Utilization ( printed page 63448) Facilities,” establish requirements for providing assurance that funding will be available to radiologically decommission a reactor facility and terminate the part 50 license. Specifically, these requirements address, among other things, the amount of decommissioning funding to be provided, the methods to be used for assuring sufficient funding, and provisions restricting the use of the DTF during operations.

Two separate petitions for rulemaking (PRM) were submitted to the NRC for consideration in 2008 and 2019 requesting that the NRC revise the definition of Decommissioning in 10 CFR 50.2 and amend 10 CFR 50.82 to allow access to the DTF to pay for the cost of the disposal of MRCs prior to permanent cessation of operations at nuclear power plants. The Commission denied both petitions, noting the subject is adequately covered by existing regulations, including the exemption process in 10 CFR 50.12, “Specific exemptions.” In the analyses recommending denial of the PRMs, the NRC staff noted that any withdrawal of funds from the DTF during operations, other than those allowed by NRC regulations, could undermine the intent of the decommissioning funding regulations. Therefore, only under extraordinary circumstances would a withdrawal from the DTF prior to permanent cessation of operations be permissible.

The NRC staff evaluates each exemption request for a DTF withdrawal to ensure it meets the criteria for special exemptions in 10 CFR 50.12 and considers the totality of facts in determining whether to grant or deny a request. This ISG discusses the mechanisms which allow the use of a DTF to cover the cost of MRC disposal during operations. Information a licensee may provide that assists the NRC staff in assessing a licensee's exemption request from the regulations related to the use of a DFT is also presented.

II. Backfitting, Forward Fitting, and Issue Finality

Issuance of this ISG will not (i) constitute backfitting as defined in section 50.109 of title 10 of the Code of Federal Regulations (10 CFR), “Backfitting,” and as described in Management Directive (MD) 8.4, “Management of Backfitting, Forward Fitting, Issue Finality, and Information Requests”; (ii) affect issue finality of any approval issued under 10 CFR part 52, “Licenses, Certifications, and Approvals for Nuclear Power Plants”; or (iii) constitute forward fitting as that term is defined and described in MD 8.4. This ISG states the NRC staff's position on the use of decommissioning trust funds during operations for disposal and lists examples of factors that the NRC staff would consider when evaluating exemption requests under 10 CFR 50.12. Applicants and licensees will not be required to comply with the positions set forth in this ISG.

III. Congressional Review Act

This ISG is not a rule as defined in the Congressional Review Act (5 U.S.C. 801-808).

89 FR 63447