Decommissioning Planning, 35512-35575 [2011-14267]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 76, Number 117 (Friday, June 17, 2011)]
[Rules and Regulations]
[Pages 35512-35575]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-14267]



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Vol. 76

Friday,

No. 117

June 17, 2011

Part II





Nuclear Regulatory Commission





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10 CFR Parts 20, 30, 40, et al.





Decommissioning Planning; Final Rule

Federal Register / Vol. 76 , No. 117 / Friday, June 17, 2011 / Rules 
and Regulations

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NUCLEAR REGULATORY COMMISSION

10 CFR Parts 20, 30, 40, 50, 70, and 72

[NRC-2008-0030]
RIN 3150-AI55


Decommissioning Planning

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC or the Commission) 
is amending its regulations to improve decommissioning planning and 
thereby reduce the likelihood that any current operating facility will 
become a legacy site. The amended regulations require licensees to 
conduct their operations to minimize the introduction of residual 
radioactivity into the site, which includes the site's subsurface soil 
and groundwater. Licensees also may be required to perform site surveys 
to determine whether residual radioactivity is present in subsurface 
areas and to keep records of these surveys with records important for 
decommissioning. The amended regulations require licensees to report 
additional details in their decommissioning cost estimate (DCE), 
eliminate the escrow account and line of credit as approved financial 
assurance mechanisms, and modify other financial assurance 
requirements. The amended regulations require decommissioning power 
reactor licensees to report additional information on the costs of 
decommissioning and spent fuel management.

DATES: The final rule is effective on December 17, 2012. Compliance 
with the reporting provisions in Title 10 of the Code of Federal 
Regulations (10 CFR) 50.82(a)(8)(v) and (vii) is required by March 31, 
2013.

ADDRESSES: You can access publicly available documents related to this 
document using the following methods:
     NRC's Public Document Room (PDR): The public may examine 
and have copied, for a fee, publicly available documents at the NRC's 
PDR, O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, 
Maryland 20852.
     NRC's Agencywide Documents Access and Management System 
(ADAMS): Publicly available documents created or received at the NRC 
are available online in the NRC Library at https://www.nrc.gov/reading-rm/adams.html. From this page, the public can gain entry into ADAMS, 
which provides text and image files of the NRC's public documents. If 
you do not have access to ADAMS or if there are problems in accessing 
the documents located in ADAMS, contact the NRC's PDR reference staff 
at 1-800-397-4209, 301-415-4737, or by e-mail to pdr.resource@nrc.gov.
     Federal Rulemaking Web Site: Public comments and 
supporting materials related to this final rule can be found at https://www.regulations.gov by searching on Docket ID NRC-2008-0030. Address 
questions about NRC dockets to Carol Gallagher, telephone: 301-492-
3668; e-mail: Carol.Gallagher@nrc.gov.

FOR FURTHER INFORMATION CONTACT: Robert D. MacDougall, Office of 
Federal and State Materials and Environmental Management Programs, U.S. 
Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone: 
301-415-5175; e-mail: Robert.MacDougall@nrc.gov, or Kevin O'Sullivan, 
Office of Federal and State Materials and Environmental Management 
Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555-
0001, telephone: 301-415-8112; e-mail: Kevin.OSullivan@nrc.gov.

SUPPLEMENTARY INFORMATION:
I. Background
II. Discussion
    A. What action is the NRC taking?
    B. Whom does this action affect?
    C. What steps did NRC take to prepare for this rulemaking?
    D. What alternatives did NRC consider?
    E. What is a legacy site?
    F. What are financial assurances?
    G. Why might some materials licensees not have funds to 
decommission their facility?
    H. Why is 10 CFR 50.82 being amended?
    I. What changes are being made to 10 CFR 20.1406?
    J. Which surveys are required under amended 10 CFR 20.1501(a)?
    K. What information must the licensee collect under amended 10 
CFR 20.1501?
    L. How will licensees report required information to the NRC?
    M. What financial assurance information must licensees report to 
the NRC?
    N. What changes are being made to financial assurance 
regulations?
    O. Will some licensees who currently do not have financial 
assurance need to get financial assurance?
    P. What changes are being made with respect to materials 
facilities' decommissioning funding plan (DFP) and DCE?
    Q. What changes are being made with respect to license transfer 
regulations for materials licensees?
    R. What changes are being made with respect to permanently 
shutdown reactor decommissioning fund status and spent fuel 
management plan reporting?
    S. When do these actions become effective?
    T. Has NRC prepared a cost-benefit analysis of the final rule?
    U. Has NRC evaluated the additional paperwork burden to 
licensees?
III. Summary and analysis of public comments on the proposed rule
IV. Discussion of Final Amendments by Section
V. Criminal Penalties
VI. Agreement State Compatibility
VII. Voluntary Consensus Standards
VIII. Environmental Assessment and Finding of No Significant 
Environmental Impact: Availability
IX. Paperwork Reduction Act Statement
X. Regulatory Analysis
XI. Regulatory Flexibility Certification
XII. Backfit Analysis
XIII. Congressional Review Act

I. Background

    The NRC issued comprehensive and risk informed decommissioning 
regulations in 1997 as Subpart E of 10 CFR part 20 (62 FR 39058; July 
21, 1997). This set of requirements is known as the License Termination 
Rule (LTR). The LTR is based on calculated doses, and it established 
specific radiological criteria for remediation of lands and structures 
to complete site decommissioning and successfully terminate the 
license. The LTR provides an overall approach for license termination 
for two different site conditions: unrestricted use and restricted 
conditions for use after license termination. The LTR applies to the 
decommissioning of facilities licensed under the regulations in 10 CFR 
parts 30, 40, 50, 60, 61, 63, 70, and 72. In the 1997 LTR final rule, 
in response to a public comment that the requirements of then-proposed 
regulations in 10 CFR 20.1406 should apply to all licensees rather than 
only to applicants for new licenses, the Commission stated:

    Applicants and existing licensees, including those making 
license renewals, are already required by 10 CFR part 20 to have 
radiation protection programs aimed towards reducing exposure and 
minimizing waste. In particular, Sec.  20.1101(a) requires 
development and implementation of a radiation protection plan 
commensurate with the scope and extent of licensed activities and 
sufficient to ensure compliance with the provisions of 10 CFR part 
20. Section 20.1101(b) requires licensees to use, to the extent 
practicable, procedures and engineered controls to achieve public 
doses that are [as low as reasonably achievable] ALARA. In addition, 
lessons learned and documented in reports such as NUREG-1444 
[ML080860275 and ML080860308] have focused attention on the need to 
minimize and control waste generation during operations as part of 
development of the required radiation protection plans. Furthermore, 
the financial assurance requirements issued in the January 27, 1988 
(53 FR 24018), rule on planning for decommissioning require 
licensees to provide adequate funding for decommissioning. These 
funding

[[Page 35513]]

requirements create great incentive to minimize contamination and 
the amount of funds set aside and expended on cleanup. (62 FR 39082; 
July 21, 1997).

    Current 10 CFR 20.1101(a) requires each licensee to implement a 
radiation protection program to ensure compliance with the regulations 
in 10 CFR part 20. Current Sec.  20.1101(b) requires each licensee to 
use, to the extent practical, procedures and engineering controls based 
upon sound radiation protection principles to achieve occupational 
doses and doses to members of the public that are ALARA. To achieve 
doses that are ALARA, licensees are already required to apply operating 
procedures and controls to evaluate potential radiological hazards and 
methods to minimize and control waste generation during facility 
operations.
    In a Staff Requirements Memorandum (SRM) for SECY-01-0194, dated 
June 18, 2002 (NRC ADAMS Accession Number ML021690563), the Commission 
directed the staff to conduct an analysis of LTR issues. The staff 
conducted the analysis and presented results and recommendations to the 
Commission in SECY-03-0069 (ML030800158), dated May 2, 2003, and known 
as the LTR Analysis. One of the recommendations was a set of ``measures 
to prevent future legacy sites.'' A legacy site is a facility that is 
in decommissioning status with complex issues and an owner who cannot 
complete the decommissioning work for technical or financial reasons 
(as discussed further in Section II.E of this document). The set of 
measures to prevent future legacy sites had two distinct parts: (1) The 
need for timely reporting during facility operations of subsurface 
contamination that has a potential to complicate future decommissioning 
efforts; and (2) The need for more detailed reporting of licensee 
financial assurance mechanisms to fund site decommissioning activities 
and protection of the committed funds in cases of financial distress. 
The need for timely reporting of subsurface contamination during 
facility operations was explained in Attachment 8 to SECY-03-0069 
(ML030870186). Attachment 8, under the heading ``chronic releases,'' 
recommended revising the regulations in 10 CFR 20.1406 to extend its 
minimization of contamination requirements to cover licensees in 
addition to license applicants. Recommendations for more detailed 
decommissioning financial assurance requirements are set forth in 
Attachment 7 to SECY-03-0069 (ML030870180).
    In the SRM for SECY-03-0069 (ML033210595), the Commission approved 
the staff's recommendations and authorized development of a technical 
basis to support a proposed rule. As pertinent to the then-proposed 
regulations in 10 CFR 20.1406 and 10 CFR 20.1501 revisions, the 
Commission's SRM states as follows:

    The Commission has approved the staff's recommendation related 
to changes in licensee operations as described in attachment 8. 
However, in addition to incorporating risk-informed approaches, the 
staff should ensure that they are performance-based. The staff will 
have to be very careful when crafting the guidance documents so that 
it is clear to the licensees and to the staff how much 
characterization information is enough. The staff should only ask 
for limited information. Licensees should not be required to submit 
the equivalent of a full scale MARSSIM [Multi-Agency Radiation 
Survey and Site Investigation Manual (ML082470583)] survey every 
year.

    During 2003 and 2004, the NRC staff evaluated the decommissioning 
program and assessed the effectiveness of other improvements to protect 
public health and safety beyond those identified in the LTR Analysis. 
To integrate and track regulatory improvements resulting from the LTR 
Analysis and the further evaluation of the decommissioning program, the 
NRC adopted an Integrated Decommissioning Improvement Plan (IDIP) for 
activities during FY 2004 through 2007 (ML050890051). Among other 
actions, the IDIP called for publication of the Decommissioning 
Planning proposed rule and written guidance describing changes in the 
regulations to prevent future legacy sites.
    In 2005 and 2006, the operators of several nuclear power plants 
reported that inadvertent and unmonitored radioactive liquid releases, 
primarily tritium contained in water, had occurred. In some instances, 
the release of radioactive liquid was not recognized by the licensee 
until years after the release had apparently started. The NRC Executive 
Director for Operations chartered a Task Force to conduct a lessons-
learned review of these incidents. The Task Force final report 
(ML062650312) dated September 1, 2006, concluded that the levels of 
tritium and other radionuclides measured thus far do not present a 
health hazard to the public and presented a list of findings and 
recommendations that the Task Force believed would improve plant 
operations and public confidence in nuclear plant operations. The 
findings and recommendations in the Task Force report identified the 
need to clarify existing licensee requirements to demonstrate that they 
have achieved public and occupational exposures that are ALARA during 
the life cycle of the facility, which includes the decommissioning 
phase.
    In April 2005, the NRC conducted a 2-day public workshop to solicit 
public comments on the technical basis for the proposed rule, covering 
changes in licensee operations and financial assurance. A 1-day public 
roundtable meeting was held in January 2007 to solicit public comments 
on specific topics in the technical basis for the proposed rule.
    SECY-07-0177 (ML072390153), dated October 3, 2007, requested 
Commission approval to publish a proposed rule consistent with the 
recommendations approved in SRM-SECY-03-0069 and the public comments 
from the workshop and roundtable meeting noted previously. The 
Commission approved staff's request in SRM-SECY-07-0177 (ML073440549), 
dated December 10, 2007, and accordingly, the proposed rule was 
published for comment in the Federal Register on January 22, 2008 (73 
FR 3812).

II. Discussion

A. What action is the NRC taking?

    The NRC is amending its regulations to improve decommissioning 
planning and thereby reduce the likelihood that facilities under its 
jurisdiction will become legacy sites. To help achieve this goal, one 
set of complementary amendments revises 10 CFR 20.1406 to make it 
applicable to licensees with operating facilities as well as to license 
applicants and revises 10 CFR 20.1501(a) by replacing its undefined 
term ``radioactive material'' with ``residual radioactivity,'' a term 
already defined in 10 CFR part 20. This defined term includes 
subsurface contamination within its scope. Both new 10 CFR 20.1406(c) 
and amended 10 CFR 20.1501(a) are worded to include subsurface 
contamination within their scope by using the term ``residual 
radioactivity.'' These changes serve to reinforce the intended linkage 
between these provisions, and are consistent with NRC policy that 
licensees conduct operations to minimize the generation of waste to 
facilitate later facility decommissioning. A second set of amendments 
improves decommissioning planning by requiring more detailed reporting 
of DCEs and tighter control of financial instruments used to provide 
decommissioning financial assurance.
    The new 10 CFR 20.1406(c) states as follows:


[[Page 35514]]


    (c) Licensees shall, to the extent practical, conduct operations 
to minimize the introduction of residual radioactivity into the 
site, including the subsurface, in accordance with the existing 
radiation protection requirements in Subpart B of this part and 
radiological criteria for license termination in Subpart E of this 
part.
    The amended 10 CFR 20.1501(a) and (b) state as follows:
    (a) Each licensee shall make or cause to be made, surveys of 
areas, including the subsurface, that--
    (1) May be necessary for the licensee to comply with the 
regulations in this part; and
    (2) Are reasonable under the circumstances to evaluate--
    (i) The magnitude and extent of radiation levels; and
    (ii) Concentrations or quantities of residual radioactivity; and
    (iii) The potential radiological hazards of the radiation levels 
and residual radioactivity detected.
    (b) Notwithstanding Sec.  20.2103(a) of this part, records from 
surveys describing the location and amount of subsurface residual 
radioactivity identified at the site must be kept with records 
important for decommissioning, and such records must be retained in 
accordance with Sec. Sec.  30.35(g), 40.36(f), 50.75(g), 70.25(g), 
or 72.30(d), as applicable.

    As indicated, use of the term ``residual radioactivity'' is a key 
component of the amendments, and this term is discussed below. It is 
also discussed in the response to comment G.19 in section III of this 
document.
1. Residual Radioactivity
    As set forth in 10 CFR 20.1003:

    Residual radioactivity means radioactivity in structures, 
materials, soils, groundwater, and other media at a site resulting 
from activities under the licensee's control. This includes 
radioactivity from all licensed and unlicensed sources used by the 
licensee, but excludes background radiation. It also includes 
radioactive materials remaining at the site as a result of routine 
or accidental releases of radioactive material at the site and 
previous burials at the site, even if those burials were made in 
accordance with the provisions of 10 CFR part 20.

    Certain operational events (e.g., slow, long-term leaks), 
particularly those that cause subsurface soil and ground-water 
contamination, can significantly increase the cost of decommissioning. 
To adequately assure that a decommissioning fund will cover the costs 
of decommissioning, the owner of a facility must have a reasonably 
accurate estimate of the extent to which residual radioactivity is 
present at the facility, particularly in the subsurface soil and 
groundwater. As reflected previously, the new 10 CFR 20.1406(c) 
requires that licensees conduct their operations in a manner that will 
minimize the introduction of residual radioactivity into the site.
    Section 20.1501(a) has been revised by replacing its undefined term 
``radioactive material'' with ``residual radioactivity.'' For some, the 
phrase ``residual radioactivity'' may have a connotation implying 
radioactive material that is ``left over'' after operations. This is 
not the meaning. As reflected in the previously stated definition, the 
term ``residual radioactivity'' includes everything that the term 
``radioactive material'' implies in this section of the current 
regulations plus other radioactive material resulting from activities 
under the licensee's control, such as contamination in the subsurface. 
The use of the term ``residual radioactivity'' in Sec.  20.1501(a) also 
is intended to provide a link with new Sec.  20.1406(c). The amended 
Sec.  20.1501(a) retains previous survey requirements, with the 
addition that such requirements include consideration of waste in the 
form of residual radioactivity. Together, the amended Sec.  20.1501(a) 
and the new Sec.  20.1406(c) specify that compliance with 10 CFR part 
20 requirements is a necessary part of effectively planning for 
decommissioning. The Sec. Sec.  20.1406(c) and 20.1501(a) provisions 
are discussed further in Sections II.I and J of this document. These 
activities, undertaken during facility operations, will provide a 
technical basis for licensees and NRC to understand the effects of 
significant residual radioactivity on decommissioning costs, and will 
help to determine whether existing financial assurance provided for 
site-specific decommissioning is adequate. By using the term ``residual 
radioactivity,'' the new Sec.  20.1406(c) and amended Sec.  20.1501(a) 
cover any licensed and unlicensed radioactive material that have been 
introduced to the site by licensee activities.
    New paragraph 10 CFR 20.1501(b) requires licensees to keep records 
of surveys of subsurface residual radioactivity identified at the site 
with the records important for decommissioning. To remove any ambiguity 
about the applicability of record retention requirements, this 
paragraph also clarifies that such records must be retained in 
accordance with Sec. Sec.  30.35(g), 40.36(f), 50.75(g), 70.25(g), or 
72.30(d), as applicable. These provisions specify certain types of 
information important to decommissioning and require licensees to keep 
records with this information in an identified location until the site 
is released for unrestricted use, or in the case of reactors, until the 
license is terminated. These decommissioning-related record retention 
requirements supersede those of Sec.  20.2103(a), which generically 
requires that records of the results of such radiological dose 
assessment activities as surveys, air sampling, bioassays, and 
calibrations be retained for 3 years after the record is made.
    During operations, residual radioactivity that would be significant 
for decommissioning planning would be a quantity of radioactive 
material that would later require remediation during decommissioning to 
meet the unrestricted use criteria of 10 CFR 20.1402. As stated in the 
proposed rule, significant residual radioactivity in subsurface media, 
such as soil, is a component of waste, because it must be removed and 
disposed of to meet unrestricted use criteria in 10 CFR 20.1402 (73 FR 
3815; January 22, 2008).
    During decommissioning, the licensee must evaluate dose from all 
residual radioactivity surveyed at its site using the radiological 
criteria in Subpart E to 10 CFR part 20. For contamination migrating 
offsite from previous leaks and spills into the subsurface, a licensee 
must comply with the applicable license conditions for its facility. 
Such offsite contamination, released as an effluent in quantities below 
annual regulatory limits, has been a factor in the decommissioning of a 
few NRC and Agreement State sites. However, the scope of this 
rulemaking does not include offsite contamination discovered during 
decommissioning.
    The NRC's technical basis for the effect that significant residual 
radioactivity in the subsurface has on decommissioning costs is based 
on a 2005 NRC staff study, ``General Guidance for Inspections and 
Enforcement to Prevent Future Legacy Sites and Indicators of Higher 
Risk of Subsurface Contamination'' (ML052630421). The purpose of this 
study was to evaluate experience at sites that have undergone, or were 
undergoing, decommissioning to identify the types of events that have 
caused subsurface contamination. Associating these events with 
knowledge of currently operating sites provided a means for NRC staff 
to evaluate the potential for future subsurface contamination at 
currently operating facilities. This risk-informed approach concluded 
that the sites with a higher likelihood of becoming legacy sites shared 
the following characteristics: relatively large volumes of low specific 
activity radioactively contaminated liquids, large volumes of long-
lived radionuclides, large throughput, liquid processes, or processes 
that involve large quantities of solid radioactive material stored

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outdoors. The study identified a number of events that could increase 
decommissioning costs by increasing the possibility of soil or ground-
water contamination and concluded that these events should cause the 
licensee to reevaluate its DCE. Additional discussion on this topic is 
in Sections II.G and II.H of this document.
    The changes to 10 CFR 20.1406 and 20.1501 are consistent with 
existing NRC policy for operating facilities. Under 10 CFR 20.1101(b), 
licensees must use procedures and engineering controls to achieve 
occupational doses and doses to members of the public that are ALARA, 
during operations and during decommissioning. To accomplish this, 
licensees must be able to demonstrate their knowledge of residual 
radioactivity in the subsurface, including soil and ground-water 
contamination, particularly if the subsurface contamination is a 
significant amount that would require remediation during 
decommissioning to meet the unrestricted use criteria of 10 CFR 
20.1402. This is an extension of the requirements promulgated in the 
1997 LTR that were applicable only to license applicants. This action 
is needed, because significant subsurface residual radioactivity at 
current operating facilities may be a potential radiological hazard. 
Such a hazard, if left undetected, could potentially result in a 
failure to fully fund decommissioning while the facility is still 
operating. The revised requirements implement existing NRC policy by 
helping licensees to continue achieving doses that are ALARA and within 
dose limits, and helping them to more effectively plan for 
decommissioning.
2. Financial Assurance
    This final rule (amending Sec. Sec.  30.35, 40.36, 70.25, and 
72.30, and Criterion 9 of Appendix A to Part 40) codifies certain 
aspects of existing regulatory guidance to improve the quality of the 
DFP and applies NRC experience to increase the likelihood that adequate 
funds will be available when needed to complete the decommissioning 
process. This final rule allows materials licensees to base their 
financial assurance for decommissioning on a ``certification amount'' 
only if the licensee's site surveys do not indicate the presence of 
residual radioactivity in amounts that would prevent the site from 
meeting the unrestricted use criteria in Sec.  20.1402. This final rule 
addresses the potential vulnerability of the parent company guarantee 
and the self-guarantee as the financial mechanism for providing 
decommissioning funding assurance, in cases where the guarantor falls 
into financial distress. This final rule requires all reactor and 
materials licensees who use these guarantee mechanisms to establish a 
standby trust fund to receive the guaranteed financial assurance amount 
should that amount become immediately due and payable.
    For licensees with reactors in a decommissioning status, this final 
rule institutes additional reporting requirements for decommissioning 
fund status, spent fuel management costs, and estimated decommissioning 
costs. These new reporting requirements, in part, modify the existing 
Post Shutdown Decommissioning Activities Report (PSDAR) requirements 
set forth in 10 CFR 50.82(a)(4)(i). Additional reporting requirements 
specify that each power reactor licensee undergoing decommissioning 
must submit an annual financial assurance status report, as set forth 
in new paragraphs 10 CFR 50.82(a)(8)(v) through (a)(8)(vii).
    Under this final rule, all licensees decommissioning their 
facilities pursuant to 10 CFR 20.1403 restricted release criteria are 
required to use a trust fund to meet the financial assurance 
requirements. A trust fund is the only financial assurance mechanism 
allowed for the long-term maintenance and surveillance of restricted 
release sites, unless a government organization either provides a 
guarantee of funds or assumes custody and ownership of the site. This 
topic is discussed further in Section II.N of this final rule.

B. Whom does this action affect?

    By the effective date of this final rule, the NRC believes that the 
changes to 10 CFR part 20 will affect a small number of licensees, and 
that the changes to financial assurance regulations will affect several 
hundred NRC licensees.
    Based on the regulatory analysis for the final rule, NRC believes a 
small number of materials licensees (a total of about five NRC and 
Agreement State licensees) will need to perform additional site surveys 
due to the presence of significant residual radioactivity. The 
licensees who will need to perform additional surveys were modeled in 
the regulatory analysis as rare metal (i.e., rare earth) extraction 
facilities with uranium as a soil contaminant. Although the number of 
licensees affected by rule changes to 10 CFR part 20 is small, the cost 
to States or the Federal Government to enforce and then fully 
decommission a single legacy site is much higher than the cost to 
prevent the occurrence of a legacy site through amended regulations.
    Uranium recovery licensees and applicants will not be subject to 
the new 10 CFR 20.1406(c) requirements, just as they are not subject to 
the existing 10 CFR 20.1406 requirements. As stated in existing 10 CFR 
20.1401(a), uranium and thorium recovery facilities, and uranium 
solution extraction facilities, are not subject to the regulations in 
10 CFR part 20, Subpart E. Such facilities are and will continue to be 
subject to the regulations in the other 10 CFR part 20 subparts, and 
the revised survey and monitoring requirements in 10 CFR 20.1501(a) and 
new 10 CFR 20.1501(b) will thus be applicable to them. Uranium recovery 
licensees are additionally subject to existing monitoring requirements 
pertaining to soil and groundwater contamination in Appendix A to 10 
CFR part 40. The above issues are discussed further in the response to 
Comment G.14 in Section III of this document.
    For NRC licensees who have subsurface soil contamination but no 
groundwater contamination, a minimal, routine monitoring plan may 
remain in effect through license termination. The routine monitoring 
plan will be described in DG-4014. Application of a minimal, routine 
monitoring plan at sites with no groundwater contamination is meant to 
improve licensee decommissioning planning and the basis used for DCEs.
    The large majority of NRC and Agreement State licensees are not 
expected to have residual radioactivity in soil or groundwater, because 
they possess small amounts of short-lived byproduct material or 
byproduct material that is encased in a capsule designed to prevent 
leakage or escape of the byproduct material (i.e., a sealed source). 
This set of licensees is expected to include the non-fuel-cycle nuclear 
facilities, which either have no significant residual radioactive 
contamination to be cleaned up, or, if there is contamination, it is 
localized or will be quickly reduced to low levels by radioactive 
decay. Licensees who do not have residual radioactivity in soil or 
groundwater, and who do not have an obligation to set aside funds for 
decommissioning financial assurance, are not affected by this final 
rule.
    Approximately 300 NRC materials licensees and over 1,000 Agreement 
State licensees have an obligation to set aside funds for 
decommissioning financial assurance. Of the NRC licensees, 
approximately 50 percent use a certified amount, specified in 
regulations, with the remaining 50 percent using a site-specific DFP or 
License Termination Plan (LTP) to meet the decommissioning financial 
assurance requirements. If there is significant residual radioactivity 
at the

[[Page 35516]]

site, the final rule changes in Sec. Sec.  30.35, 40.36, 70.25, and 
72.30 require a licensee to switch out of its certified funding amount 
and replace the certified amount with a DFP. At this time, the NRC 
staff is not aware of any licensees using certified amounts for 
decommissioning that need to switch to a DFP because of significant 
residual radioactivity.
    Licensees using a site-specific DFP or License Termination Plan to 
meet decommissioning financial assurance requirements will have 
additional reporting requirements based on final rule changes in 
Sec. Sec.  30.35, 40.36, 50.82, 70.25, and 72.30. The materials 
licensees under 10 CFR parts 30, 40, 70, and 72 will need to provide 
more details to support their DCEs, such as the assumed cost of an 
independent contractor to perform all decommissioning activities.
    Final rule changes to 10 CFR 50.82(a) affect the 12 power reactor 
licensees undergoing decommissioning. Such licensees will need to 
provide more details regarding their DCEs and will need to provide cost 
estimates for managing irradiated fuel. More specifically, licensees 
who have submitted a certification of permanent cessation of operations 
under 10 CFR 50.82(a) are subject to annual financial assurance 
reporting requirements similar to those imposed on operating reactors 
under existing 10 CFR 50.75(f). The annual reports must identify yearly 
decommissioning expenditures, the remaining balance of decommissioning 
funds, and a cost estimate to complete decommissioning. Similar to the 
one-time reports required by 10 CFR 50.54(bb), the annual reports 
required under 10 CFR 50.82(a)(8) must identify the amount of funds 
accumulated to manage irradiated fuel and the projected cost of 
managing the irradiated fuel until title and possession is transferred 
to the Secretary of Energy.
    Approximately 20 NRC licensees use an escrow account as a 
prepayment financial mechanism and will be affected by final rule 
changes in Sec. Sec.  30.35, 40.36, 70.25, and 72.30 (which eliminate 
the escrow account as a prepayment financial assurance method). No NRC 
licensees are using a line of credit (which is being eliminated as an 
acceptable financial assurance instrument) to provide financial 
assurance.
    Approximately 45 NRC licensees use a parent company guarantee or 
self-guarantee as a financial assurance mechanism. These licensees will 
be affected by final rule changes in 10 CFR part 30, Appendices A, C, 
D, and E, which require establishment of a standby trust fund before 
the guarantee becomes effective, and which contain other new 
requirements. The standby trust fund is to be set up for receipt of 
funds in the case of financial distress by the guarantor. In the 
regulatory analysis and Paperwork Reduction Act burden estimate, NRC 
assumed that a total of 25 of these 45 licensees will need to establish 
a trust fund to comply with the amended regulations, while the other 20 
already have an established trust fund.
    The regulatory analysis for this final rule, referenced in Section 
X of this document, has detailed cost-benefit estimates regarding the 
licensees who will be affected by the amended regulations.

C. What steps did NRC take to prepare for this rulemaking?

    The NRC took several initiatives to enhance stakeholder involvement 
and to improve efficiency during the rulemaking process. On May 28, 
2004, the NRC staff issued Regulatory Information Summary (RIS) 2004-
08, ``Results of the License Termination Rule Analysis'' (ML041460385). 
This RIS was the first follow-up action taken in response to the SRM 
for SECY-03-0069. The purpose of the RIS was to inform licensees and 
stakeholders of NRC's analysis of the issues associated with 
implementing the LTR, the Commission's direction to resolve these 
issues, the schedule for future actions, and opportunities for 
stakeholder comment. The RIS noted that stakeholder involvement would 
be an important part of developing the planned rulemaking and guidance.
    In April 2005, the NRC conducted a 2-day decommissioning workshop 
examining a number of LTR topics, including potential changes in 
facility operating requirements and changes to financial assurance to 
prevent legacy sites. Stakeholders addressed the issues and potential 
resolutions that could be accomplished through rulemaking. Since then, 
NRC has maintained a Web page (https://www.nrc.gov/about-nrc/regulatory/decommissioning.html) with information including draft guidance 
documents, Commission papers, and a variety of decommissioning program 
documents. The NRC presented papers on the technical basis scope of the 
rulemaking at American Nuclear Society conferences in 2004, 2005, and 
2006, and other stakeholder forums.
    In June 2006, the NRC formed a proposed rule Working Group of NRC 
staff and one Agreement State representative from the Organization of 
Agreement States (OAS). The NRC has held discussions with State and 
Federal agencies on their experience with trust funds for long-term 
financial assurance, including a discussion with the U.S. Environmental 
Protection Agency (EPA) on October 6, 2006.
    In January 2007, the NRC held a public roundtable meeting that was 
attended by about 40 stakeholders. The meeting was held to solicit 
input from stakeholders and interested members of the public regarding 
the issues of licensee control and identification of subsurface 
residual radioactivity and changes that were being considered in 
decommissioning financial assurance requirements. The Summary Notes and 
transcript of this public meeting are posted on: https://www.nrc.gov/about-nrc/regulatory/decommissioning/public-involve.html.

D. What alternatives did NRC consider?

    The proposed rule Working Group considered three different 
alternatives for the rule. Each was evaluated in the environmental 
assessment (see Section VIII of this document) and the regulatory 
analysis (see Section X of this document). Alternative 2, comprised of 
the amendments in this final rule, was assessed to be superior compared 
to the other alternatives.

E. What is a legacy site?

    A legacy site is a facility that is decommissioning and has an 
owner who cannot complete the decommissioning work for technical or 
financial reasons. These sites have been materials facilities, not 
reactor facilities.
    The purpose of this final rule is to improve decommissioning 
planning and thereby reduce the likelihood that a site will become a 
legacy site, thus avoiding unnecessary expense and promoting more 
timely return of licensed sites to other productive uses.
    NRC terminates several hundred materials licenses each year. Most 
of these are routine actions, and the sites require little, if any, 
remediation to meet NRC's unrestricted use criteria. There are other 
sites where more complex decommissioning actions are needed. These 
complex decommissioning sites are described, along with the objectives 
of NRC decommissioning activities, in the ``Status of Decommissioning 
Program 2006 Annual Report'' available at: https://www.nrc.gov/about-nrc/regulatory/decommissioning/program-docs.html. This report 
identifies and describes the status of 32 complex materials sites 
undergoing decommissioning. Of the total 32 complex sites, the NRC 
considered 8 of these to be legacy sites as of December 31, 2006. At 
the end of 2010, there were 6 legacy sites among the complex

[[Page 35517]]

materials sites undergoing decommissioning.

F. What are financial assurances?

    Financial assurances are financial arrangements provided by a 
licensee, whereby funds for decommissioning will be available when 
needed. Each NRC licensee has a regulatory obligation to properly 
decommission its facility. However, only licensees whose 
decommissioning cost is likely to exceed a threshold amount must 
provide financial assurance. All nuclear power reactors and about 7 
percent of NRC materials licensees must provide decommissioning 
financial assurance. This financial assurance may be funds set aside by 
the licensee or a guarantee that funds will be available when needed. 
The guarantee may be provided by a qualified third party or upon 
passage of a financial test by the licensee. The third party may be the 
parent company of the licensee, which is the case for about 10 percent 
of the NRC materials licensees that are obligated to have 
decommissioning financial assurance.
    Nuclear power reactors have financial assurance obligations that 
are different from materials licensees. The minimum amount of financial 
assurance for reactors is defined in 10 CFR 50.75, and this rulemaking 
does not change this required minimum amount. Acceptable financial 
assurance mechanisms for power reactors are defined in Sec.  
50.75(e)(1). An external sinking fund is used to provide financial 
assurance for about 90 percent of the reactors. The remaining 10 
percent of reactors have assurance through prepaid funds and/or 
guarantees.
    As of December 31, 2006, there were about 300 NRC materials 
licensees that had a regulatory obligation to provide approved 
financial assurance mechanisms. An acceptable financial assurance 
mechanism for unrestricted use decommissioning is any of the following 
four types of financial instruments:
     A prepayment of the applicable decommissioning costs;
     A guarantee to pay the decommissioning costs issued by a 
qualified third party or the licensee;
     A statement of intent from a Federal, State or local 
government licensee; or
     An external sinking fund.
    The prepayment method is full payment in advance of decommissioning 
using an account segregated from licensee assets and outside the 
licensee's administrative control. About 11 percent of current 
financial assurance mechanisms for materials licensees are prepayment 
methods, with most of these being escrow accounts. Currently accepted 
prepayment mechanisms include escrow accounts (8 percent), trust funds 
(2 percent), certificates of deposit (1 percent), government funds (0 
percent), and deposits of government securities (0 percent). This final 
rule eliminates all prepayment mechanisms except the trust fund, for 
reasons discussed under Section II.N.2 of this document.
    The guarantee method can be used by licensees that demonstrate 
adequate financial strength through their annual completion of 
financial tests contained in Appendices A, C, D, and E of 10 CFR part 
30. About 51 percent of current financial assurance mechanisms for 
materials licensees are guarantee methods. Currently accepted guarantee 
mechanisms include letters of credit (28 percent), parent company 
guarantees (8 percent), licensee self-guarantees (7 percent), surety 
bonds (8 percent), lines of credit (0 percent), and insurance policies 
(0 percent). This final rule eliminates the line of credit as an 
acceptable mechanism, for reasons discussed under Section II.N.10 of 
this document.
    The statement of intent is a commitment from a Federal, State or 
local government licensee that it will request and obtain 
decommissioning funds from its funding body, when necessary for 
decommissioning an NRC licensed site. It is available for use only by 
governmental entities. Approximately 38 percent of the NRC materials 
licensees who are required to provide financial assurance use the 
statement of intent as a means to provide financial assurance.
    The external sinking fund is an approved financial assurance method 
that allows an NRC licensee to gradually prepay the DCE, but no NRC 
materials licensees who have an obligation to provide decommissioning 
financial assurance use this option. Before this rulemaking, materials 
licensees choosing this option would have to cover amounts that were 
not prepaid by a surety mechanism or insurance. The same requirements 
apply to power reactor licensees, except that the amounts that are not 
prepaid can be covered by a guarantee method as well as by surety or 
insurance. This rulemaking provides materials licensees opting to use 
the external sinking fund with the same degree of flexibility that 
power reactor licensees have had since 1998 (in a final rulemaking for 
power reactor financial assurance, the NRC allowed use of a parent 
company guarantee or self-guarantee with an external sinking fund (63 
FR 50465; September 22, 1998)). This final rule makes conforming 
changes in the financial assurance requirements for materials licensees 
(10 CFR 30.35, 40.36, 70.25, and 72.30) to provide greater consistency 
with the 10 CFR part 50 regulations.
    This discussion of financial assurance to decommission a site 
pertains only to unrestricted use under 10 CFR 20.1402. If a licensee 
can demonstrate its ability to meet the provisions of 10 CFR 20.1403 
for restricted use, financial assurance for long-term surveillance and 
control may be provided by a trust fund or by a government entity 
assuming ownership and custody of the site.

G. Why might some materials licensees not have funds to decommission 
their facility?

    In SECY-03-0069, the NRC evaluated licensee decommissioning 
experience and identified the following five reasons why some licensees 
may not have enough funds to complete their decommissioning activities.
    1. Licensees at complex sites may underestimate decommissioning 
costs, if the assumption that the site will qualify for a restricted 
release proves incorrect. The cost for a restricted release is usually 
significantly lower than unrestricted release given the high offsite 
disposal costs of licensed material when compared to the cost of onsite 
controls. If it turns out that the licensee cannot meet the 10 CFR 
20.1403 criteria for restricted conditions, the licensee may then not 
be able to meet its decommissioning financial obligations. To address 
this problem, this final rule amends 10 CFR 30.35, 40.36, 70.25, and 
72.30 to require licensees to obtain NRC approval of their DFP based on 
a DCE for unrestricted release, unless the ability to meet the 
restricted release criteria can be adequately shown.
    2. Certain operational events, particularly those that cause soil 
or ground-water contamination, can increase decommissioning costs if 
not addressed during the life of the facility. If the licensee does not 
identify these events, assess the problem in a timely manner, and 
update its DCE based on new conditions, the licensee may find it 
difficult to later meet its decommissioning obligations. To address 
this problem, this final rule amends 10 CFR 20.1406 as discussed 
previously in Section II.A of this document. Licensees also are 
required, in amendments to 10 CFR 30.35, 40.36, 70.25, and 72.30, to 
factor in residual radioactivity information in arriving at DCEs.

[[Page 35518]]

    3. Certain financial assurance methods may not be effective in 
bankruptcy situations, given that funds held in them may be accessible 
to creditors. For example, title to property held in escrow remains 
with the licensee, making the property potentially vulnerable to claims 
by creditors. Another example is the parent and self-guarantees. The 
guarantees promise performance rather than payment. In the past, two 
companies used corporate reorganization to isolate the decommissioning 
obligations with the subsidiary company, but with insufficient funds to 
perform the work. In one case, the parent company reorganized without 
NRC approval and transferred to the subsidiary few assets and low 
levels of operating profits, so that the subsidiary was able to fund 
only a small portion of its decommissioning costs. In the second case, 
the parent company purchased the licensee before the financial 
assurance regulations went into in effect. The licensee was permanently 
shut down after the purchase and was unable to provide full financial 
assurance. To address this problem, this final rule amends 10 CFR 
30.35, 40.36, 70.25, 72.30, and 10 CFR part 30, Appendices A, C, D, and 
E by eliminating the use of an escrow account as a financial assurance 
option, and requiring a guarantor, as a condition of using the parent 
company guarantee and self-guarantee financial assurance options, to 
establish a standby trust fund and to submit to a Commission order, if 
the guarantor is in financial distress, to immediately pay the 
guaranteed funds into the standby trust.
    4. The funds set aside by licensees to carry out decommissioning 
may decline in value over time. To address this problem, this final 
rule amends 10 CFR 30.35(h), 40.36(f), 70.25(h), and 72.30(g) to 
require that a licensee monitor the status of its decommissioning funds 
and, if necessary, add funds if the balance falls below the estimated 
cost of decommissioning.
    5. The initial funding of a trust fund to cover the recurring costs 
of long-term surveillance and control for license termination under 
restricted release criteria may be inadequate if it assumes a high rate 
of return for the trust fund. To address this problem, this final rule 
amends 10 CFR 20.1403 to require that licensees assume only a 1 percent 
real rate of return in establishing the initial funding amount.

H. Why Is 10 CFR 50.82 being amended?

    Several power reactor licensees have successfully decommissioned 
their reactor sites consistent with 10 CFR part 20 requirements. In 
some cases, reactor decommissioning costs have exceeded the initial 
DCE. For example, the Connecticut Yankee Nuclear Plant experienced 
higher decommissioning costs than planned, due in part to a larger 
volume of contaminated soil than was identified in the initial site 
characterization.
    In the past, the NRC has not required licensees to submit details 
of decommissioning costs on the grounds that the typical reactor 
licensee was part of a public utility with access to substantial assets 
and revenues and that the minimum required amount for decommissioning 
financial assurance was adequate. A licensee's status as a regulated 
public utility provided access to cost of service rate recovery to help 
provide additional funds. A public utility had access to sales revenues 
to fund its obligations, even if rate recovery was limited.
    Deregulation of the electric industry now permits a reactor 
licensee to operate as a merchant plant not subject to rate regulation 
or rate recovery of costs of service. When it ceases operation, it may 
have no sales revenues. The licensee may be organized as a separate 
company or a subsidiary of a holding company to isolate the risks and 
rewards of selling electricity on the open market. Without access to 
rate relief, with no sales revenues, and with the licensee's owner 
protected by limited liability, shortfalls in decommissioning funding 
may jeopardize timely completion of decommissioning. This final rule 
provides NRC regulatory authority to perform oversight to assure that 
the licensee anticipates potential shortfalls and takes steps to 
control costs to stay within its budget or obtain additional funds.

I. What changes are being made to 10 CFR 20.1406?

    New 10 CFR 20.1406(c) states as follows:

    (c) Licensees shall, to the extent practical, conduct operations 
to minimize the introduction of residual radioactivity into the 
site, including the subsurface, in accordance with the existing 
radiation protection requirements in Subpart B of this part and 
radiological criteria for license termination in Subpart E of this 
part.

    The term ``to the extent practical'' is intended to limit the scope 
of this provision to actions that are already manifested in practice or 
action. The same phrase is used in existing 10 CFR 20.1101(b), which 
requires that licensees keep occupational and public radiological doses 
to ALARA levels. This final rule requires licensees to conduct their 
operations to minimize the introduction of residual radioactivity into 
the site, including the subsurface, to achieve effective 
decommissioning planning. For operating facilities, significant 
residual radioactivity is a quantity that would later require 
remediation during decommissioning to meet the unrestricted use 
criteria of 10 CFR 20.1402.
    The current 10 CFR 20.1101 requirements are related to those in new 
10 CFR 20.1406(c). Section 20.1101(a) requires each licensee to 
implement a radiation protection program to ensure compliance with the 
regulations in 10 CFR part 20. The current 10 CFR 20.1101(b) requires 
each licensee to use, to the extent practical, procedures and 
engineering controls based upon sound radiation protection principles 
to achieve occupational doses and doses to members of the public that 
are ALARA. To achieve doses that are ALARA during facility operations 
and decommissioning, the Sec.  20.1101(b) operating procedures and 
controls must apply to potential radiological hazards and to methods 
used by the licensee to minimize and control waste generation.
    In furtherance of these existing requirements, new 10 CFR 
20.1406(c) includes the term ``residual radioactivity,'' as discussed 
previously in Section II.A of this document. This new section applies 
to current licensee operations, in contrast to the Sec.  20.1406(a) and 
(b) requirements which are imposed on license applicants. Residual 
radioactivity excludes background radiation. The licensees of large 
nuclear facilities will have performed an assessment of background 
radioactivity at their site as part of an Environmental Impact 
Statement required during the license application process. As a matter 
of standard operating practice, licensees will document the background 
level of radioactivity when a survey is performed at the site. Residual 
radioactivity, as defined in 10 CFR 20.1003, is not ``residual 
radioactive material'' as defined in 10 CFR 40.4, which is used only 
with respect to materials at sites subject to remediation under Title I 
of the Uranium Mill Tailings Radiation Control Act of 1978, as amended.
    The final rule's use of the term ``subsurface'' designates the area 
below the surface by at least 15 centimeters, as defined in NUREG-1575, 
``Multi-Agency Radiation Survey and Site Investigation Manual'' 
(ML070110228). Under this final rule, licensees must conduct their 
operations to minimize residual radioactivity that enters the

[[Page 35519]]

subsurface at the site. If there are pathways that would allow the 
contamination to migrate, the licensee may need to monitor the 
groundwater onsite for contamination based on site specific conditions. 
Based on past NRC experience, significant concentrations or quantities 
of undetected and unmonitored contamination, caused primarily by 
subsurface migration of groundwater, have been a major contributor to a 
site's becoming a legacy site and a potential radiological hazard.
    Several hundred NRC materials licensees possess radioactive 
material and have liquid processes that could cause subsurface 
contamination. These licensees generally are compliant with regulations 
that limit effluent release to the environment over a specified time. 
Some of these licensees may not have documented onsite residual 
radioactivity, such as spills, leaks and onsite burials that may be 
costly to remediate during decommissioning and should be considered in 
arriving at an accurate DCE. There have been instances of previously 
unidentified soil and ground-water contamination at uranium recovery 
and rare earth metal recovery sites undergoing decommissioning in 
several states, notably Colorado and Pennsylvania. Two contributing 
factors to the accumulation of unidentified subsurface contamination 
are: (1) Reluctance among some licensees to spend funds during 
operations to perform surveys and document spills and leaks that may 
affect site characterization; and (2) reluctance to implement 
procedures for waste minimization.
    The vast majority of NRC materials licensees do not have processes 
that would cause subsurface contamination. NRC's expectation is that 
these licensees, including those that release and monitor effluents of 
short-lived radionuclides to municipal sewer systems, will not be 
impacted by new 10 CFR 20.1406(c). The accumulation of radionuclides at 
municipal waste treatment facilities was the subject of an Interagency 
Steering Committee on Radiation Standards (ISCORS) study (NUREG-1775, 
November 2003, ML033140171), which concluded that, in general, these 
facilities do not have significant concentrations of long-lived 
radionuclides. Other classes of licensees that are, in general, not 
expected to introduce significant residual radioactivity into the 
subsurface include broad scope academic, broad scope medical, and small 
research and test reactors. The DG-4014 proposes an acceptable method 
for these licensees to evaluate the subsurface residual radioactivity.
    Power reactor licensees have exhibited a high level of ALARA 
discipline with respect to effluent release and known spills and leaks. 
Current NRC regulations in Sec. Sec.  20.1301, 20.1302, and 50.36a 
ensure that power reactor licensees maintain adequate monitoring and 
surveys of radioactive effluent discharges, with annual reporting 
requirements outlined in Sec.  50.36a(2) that are made available to the 
public on the NRC Web site. Several nuclear power plants have reported 
abnormal releases of liquid tritium, which resulted in ground-water 
contamination. On May 5, 2006, the NRC staff issued a revised baseline 
inspection module (Procedure 71122.01, ML053490179) used to inspect 
leaks and spills at power reactor sites. To further address this issue, 
the Nuclear Energy Institute (NEI) developed voluntary guidance for 
licensees in the Industry Ground Water Protection Initiative (GPI) 
(ML072600295). The voluntary GPI, implemented by all licensed power 
reactors as of September 2008, is a site-specific groundwater 
protection program to manage situations involving inadvertent releases 
of licensed material to groundwater and to provide informal 
communication to appropriate State/Local officials, with follow-up 
notification to the NRC as appropriate.

J. What surveys are required under amended 10 CFR 20.1501(a)?

    Before this final rule, Sec.  20.1501(a) required licensees to 
perform surveys necessary to comply with Part 20 requirements, 
including surveys reasonable under the circumstances to evaluate 
potential radiological hazards. This final rule requires radiological 
surveys, reasonable under the circumstances (such as scoping surveys), 
sufficient to understand the extent of significant residual 
radioactivity, including the subsurface. This final rule does not add 
any new requirements regarding extensive site characterization. Slow 
and long-lasting leaks of radioactive material into the onsite 
subsurface may eventually produce radiological hazards and pose a risk 
for creation of a legacy site if contaminant characteristics are not 
identified when the facility is operating. The staff views radiological 
hazards as including those resulting from subsurface contaminating 
events, when these events produce significant residual radioactivity 
that would later require remediation during decommissioning to meet the 
unrestricted use criteria of 10 CFR 20.1402. An effective approach to 
understand the extent of subsurface residual radioactivity is through 
the use of radiological surveys.
    Appropriate surveys are essential for determining the adequacy of 
financial assurance for materials licensees, and need to be done 
periodically on a limited basis during operations when the DFP and 
financial assurance can be adjusted while the licensee is still 
generating revenue. This is far superior to the current practice at 
some facilities of delaying even limited survey work at the site until 
after the facility has been shut down.
    Facilities that process large quantities of licensed material, 
especially in fluid form, have the potential for causing significant 
environmental contamination. Leaks from these facilities can lead to 
large amounts of radioactive contamination entering the subsurface 
environment over an extended time. The estimated doses from this 
contamination are below the limits in 10 CFR part 20 that would 
initiate immediate regulatory action. Another factor the staff 
considered in preparing this final rule is the high cost to dispose of 
radioactive materials offsite. These costs are a concern, even when the 
material contains relatively low concentrations of radioactivity. A 
continued trend of high disposal costs could increase the number of 
environmental contamination incidents at operating facilities, 
resulting in higher decommissioning costs. A third factor that may 
contribute to future legacy sites is the delayed identification of 
contamination on the site. Over a long time, contamination that 
migrates in subsurface soil or groundwater does not cause immediate 
exposure to either workers or the public that approaches the limits 
specified in 10 CFR part 20. It is only after operations have ceased 
when the possible results of unlimited access to the site, and 
associated exposure pathways (i.e., ingestion and inhalation) are being 
evaluated, that the volume of contamination becomes apparent.
    As discussed previously in Section II.A of this document, amended 
10 CFR 20.1501(a) requires licensees to perform contamination surveys 
to comply with current 10 CFR part 20 requirements and the new Sec.  
20.1406(c), if there is a history of leaks or spills to the subsurface 
at the site. The magnitude and extent of radiation levels are typically 
defined in units of radioactivity measurement, such as in micro-rem per 
hour ([micro]rem/hr). The concentrations or quantities of residual 
radioactivity are typically defined in units of radioactivity 
associated with a specific radionuclide, for example

[[Page 35520]]

picocuries per liter of tritium (pCi/L of H-3).
    The amended Sec.  20.1501(a) retains previous survey requirements 
and specifies that such requirements include consideration of 
subsurface residual radioactivity. Survey requirements may include 
ground-water monitoring if reasonable under the site specific 
conditions. Soil sampling also may be warranted based on site-specific 
conditions--for example, if there is no ground-water monitoring at the 
site or if known subsurface contamination has not migrated to the 
groundwater. The DG-4014 proposes a variety of acceptable methods to 
evaluate subsurface characteristics. The NRC recognizes that ground-
water monitoring may be a surrogate for subsurface monitoring at some 
sites, that soil sampling may be appropriate at other sites, and that 
there are sites with no subsurface residual radioactivity where the 
existing monitoring method is appropriate. Also, the NRC recognizes 
that an area within the footprint of a building, during licensed 
operations, may not be a suitable area for subsurface residual 
radioactivity surveys if the process of sampling would have an adverse 
impact on facility operations. The decision to perform subsurface 
residual radioactivity sampling in a particular area should be balanced 
against the potential to jeopardize the safe operation of the facility. 
The purpose of amended 10 CFR 20.1501(a) and new 10 CFR 20.1406(c) is 
to specify that compliance with 10 CFR part 20 survey and recordkeeping 
requirements is necessary to demonstrate compliance with existing 
regulations and to plan effectively for decommissioning, including 
effects from subsurface contamination.
    Final rule amendments to 10 CFR 30.35(e)(2), 40.36(d)(2), 
70.25(e)(2), and 72.30(c) require licensees who have a DFP or a LTP to 
factor in the results of surveys, performed under Sec.  20.1501(a), in 
estimating decommissioning costs. This requirement applies only to 
materials licensees who are required to have a DFP and assures that 
these licensees properly consider the extent of subsurface residual 
radioactivity in their DCEs, thus improving decommissioning planning 
and helping to reduce the likelihood of future legacy sites.
    For the materials licensees with a certified amount as 
decommissioning financial assurance, the NRC assumes their current 
monitoring methods are adequate. If these licensees detect onsite 
contamination that would later require remediation during 
decommissioning to meet the unrestricted use criteria of 10 CFR 
20.1402, then the licensees are required to submit for approval by the 
NRC a DFP with a DCE.
    Some materials licensees are not required to have financial 
assurance for decommissioning based on a license possession limit that 
is below the financial assurance threshold values in Appendix B of 10 
CFR part 30. For these licensees, the NRC's expectation is that the 
monitoring performed under amended Sec.  20.1501(a) would be of a 
simple form, as will be discussed in DG-4014. Simple form monitoring is 
a method that confirms the absence of leaks or spills to the 
subsurface. The risk is low that any of these sites would cause 
contamination to create a potential radiological hazard or a future 
legacy site.
    On the effective date of this final rule, NRC's expectation is that 
no additional surveys will be required of power reactor licensees and 
fuel cycle facilities. For power reactors, NRC staff concludes that the 
monitoring and survey processes and related reports prepared at power 
reactor sites will likely contain sufficient information to satisfy new 
Sec.  20.1406(c) and amended Sec.  20.1501 requirements. The NRC is not 
requiring licensees to submit reports, but the information must be kept 
onsite in records that are available for review. It is not expected 
that power reac