United States: NRC Introduces Options for New Flexibility in Nuclear Facility Decommissioning

The nuclear-powered electric-generation sector operates within a unique regulatory structure for protecting human health and the environment. During construction and throughout operation, nuclear facilities must establish and maintain funds to meet the expected costs of shutting down and, to the extent necessary, cleaning up their properties following the cessation of licensed operations.

Because nuclear-powered electric-generating facilities receive operating licenses of 40 years (unless renewed), the first closures of these facilities have begun, with Maine Yankee, Connecticut Yankee and Yankee Rowe among those scheduled. These closures, while notably orderly, have revealed areas of tension between the Nuclear Regulatory Commission ("NRC"), NRC-authorized states ("Agreement States") and the Environmental Protection Agency ("EPA").

This advisory reviews this recent history and current NRC efforts, and suggests considerations for reducing this tension during closure and, where necessary, remediation of NRC-licensed facilities.

Nuclear power plants, medical institutions and university laboratories (among others) that use regulated radiological materials under a license from NRC or an Agreement State must, upon license termination, undertake appropriate decommissioning, including remediation, consistent with applicable standards. In 1997, NRC adopted its License Termination Rule (the "LTR"), establishing numerical cleanup standards for decommissioning NRC-licensed facilities requiring remediation.1

The LTR sets a total dose limit of 25 millirems per year ("mrem/yr") from all radiological sources, including groundwater, as the cleanup standard to be achieved before a facility can be released – that is, its license terminated – for unrestricted use. In addition, the licensee must demonstrate that it has reduced the residual dose at the facility following decommissioning to "as low as reasonably achievable" ("ALARA"), considering economic and other factors.

Although NRC and its predecessors, including the Atomic Energy Commission, were created with the primary regulatory authority over the private use of nuclear material, EPA has contended for over 20 years that it has some level of concurrent jurisdiction with NRC for the cleanup of NRC-licensed facilities. EPA bases its contention, in part, on the 1980 Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), which authorizes it to clean up certain contaminated or "Superfund" sites.

Under its asserted CERCLA jurisdiction, in 1997, EPA issued internal agency guidance establishing its own independent numerical cleanup standards for NRC-licensed sites requiring remediation: a maximum dose of 15 mrem/yr from all sources, with groundwater specifically required to meet Safe Drinking Water Act-established Maximum Contaminant Levels ("MCLs") where groundwater or surface water is considered a current or potential drinking water source.2 In setting its own standards, EPA acknowledged that the NRC standard is based on the "framework for risk management recommended by the International Commission on Radiation Protection (ICRP) and the National Council on Radiation Protection and Measurements (NCRP)." Despite this explicit recognition of NRC’s reliance on international radiological protection guidelines, EPA nonetheless asserted that issuing its own standard was necessary, on the contradictory grounds that there was "no technical, policy, or legal rationale" for the NRC standard. It is beyond the scope of this advisory to parse EPA’s justifications for its radiological cleanup standards. What can be said is that EPA has not taken steps to establish, from an environmental protection or public health or safety perspective, the basis for distinguishing between 15 mrem/yr or 4 mrem/yr (for groundwater) and 25 mrem/yr. In fact, the average U.S. citizen receives a total background dose of approximately 300 mrem/yr from natural and manmade sources, including cosmic emissions, naturally occurring material (including radon), and global fallout from the historic testing of nuclear weapons.3

On average, more than 80% of this average annual exposure comes from naturally occurring sources. The next largest source of exposure for the public is medical treatment, which accounts for about 11% annually to the average person. For example, a single CT scan provides a dose of at least 1,000 mrem, while a typical X-ray provides 10 mrem.4 Thus, the difference between 15 mrem/yr and 25 mrem/yr is primarily significant because it can be disproportionately costly to remediate to lower levels. Given this context, EPA’s jurisdictional claim begs for resolution.

The onset of a resolution is in the works, but more needs to be done. In October 2002, NRC and EPA executed a Memorandum of Understanding regarding NRC-EPA coordination at decommissioning NRC-licensed facilities (the "MOU").5 (For a comprehensive discussion of the MOU, see Goodwin Procter’s October 2002 Environmental Law Advisory entitled "Avoiding Dual Regulation at the Boundary of Agency Jurisdiction: Terminating A Nuclear License" at http://www.goodwinprocter.com/publications/ELA_TermNucLicenses_10_02.pdf.) The MOU’s express purpose is to memorialize NRC’s and EPA’s agreement regarding each agency’s authority. To that end, it covers "coordination between EPA … and NRC, when a facility licensed by NRC is undergoing decommissioning, or when a facility has completed decommissioning, and NRC has terminated its license."6

More particularly, under the MOU, EPA may seek involvement at a facility that is licensed by NRC and undergoing decommissioning, or that has completed decommissioning and had its NRC license terminated, if: (i) residual groundwater contamination at the facility will exceed the EPA-established MCLs for radiological contamination; (ii) residual soil contamination will exceed MOU-established "consultation trigger" levels; or (iii) NRC plans to authorize the release of the facility for restricted future use upon license termination, or to use alternative cleanup criteria (i.e., a site-specific dose greater than NRC’s primary dose limit of 25 mrem/yr) for license termination.

If a facility meets any of these conditions, then NRC and EPA will "consult" on appropriate cleanup standards; if this initial "consultation" fails, NRC must identify its reasons for not applying EPA’s standards. If EPA disagrees with NRC, still further "consultation" may occur, and EPA has not waived its right to seek listing on the National Priorities List ("NPL") of contaminated sites designated as among the worst in the country, or to take other action, in the case of a failed "consultation" process. In other words, EPA has indicated that it will play some role at every site that does not meet its scientifically unsupported standards. Thus, the MOU effectively encourages NRC to meet EPA cleanup criteria or opens the door to EPA to participate on its own behalf, including through a draconian NPL listing.

The practical impacts of this approach have been direct and clear. As of February 2006, NRC has given EPA notice at six decommissioning facilities where NRC and EPA may need to consult in accordance with the MOU.7 These facilities include the Connecticut Yankee Atomic Power Company Site in Haddam, Connecticut, the Kaiser Aluminum Specialty Products site in Tulsa, Oklahoma, and the Union Carbide Corporation site located in Lawrenceburg, Tennessee.

Because each of these facilities was already undergoing decommissioning when the MOU was executed, NRC has interpreted the MOU to require consultation with EPA at these facilities, if necessary, only after completion of the Final Status Survey ("FSS"). It has indicated to EPA that it will review each facility’s FSS report following site remediation activities, and compare the remaining levels of residual radioactivity to the MOU trigger levels; if the FSS-reported levels trigger the MOU, then NRC and EPA will consult under the MOU to identify and resolve any remaining issues.

Not content with the MOU system, EPA also has responded to each notice with a written "reminder" to NRC that "that the MOU does not affect CERCLA actions that do not involve NRC (e.g., the MOU does not establish cleanup levels for CERCLA sites)." This suggests that EPA does not intend to relinquish any of the CERCLA authority it perceives it has at these facilities. None of the facilities has advanced beyond this initial exchange of letters, and it will bear watching to see how far EPA is willing to assert its CERCLA authority.

In late 2005, NRC proposed revisions to its decommissioning guidance (NUREG-1757) aimed at addressing certain issues it has encountered in implementing the LTR at decommissioning NRC-licensed facilities (the "Draft Revisions"). Interestingly, NRC appears to have looked, in part, to EPA’s policies and practices at CERCLA sites – although decidedly not to EPA’s cleanup standards at those sites – as the basis for its proposed approach to two aspects of license termination at decommissioning NRClicensed facilities to be released for restricted use: (i) institutional controls, and (ii) the use of "more realistic" exposure scenarios to estimate potential dose from such facilities after license termination.8

In conjunction with this latter factor, NRC has retained its own protective approach to remediation, in that each of the Draft Revisions reflects NRC’s "risk-informed" approach to regulatory decision-making. As NRC explains, "risk-informed" decisionmaking is different from "risk-based" decision-making, which is based solely on the numerical results of a risk assessment. Under NRC’s risk-informed approach, "risk insights are considered together with other factors in the regulatory process to better focus licensee and regulatory attention on design and operational issues commensurate with their importance to public health and safety."9

Institutional Controls. Institutional controls are legal or other "paper" mechanisms that EPA and states have long used at sites with hazardous substance contamination to allow levels of contaminants in excess of otherwise applicable cleanup standards by limiting potential sources of exposure through restrictions on land uses, construction work and other activities.

Under CERCLA and its state Superfund law counterparts, institutional controls are typically implemented through deed restrictions or covenants recorded at the registry of deeds or other office of land records to ensure that they "run with the land" and therefore remain in place. In fact, they have become sufficiently commonplace to prompt development of model state legislation, the Uniform Environmental Covenant Act, concerning the proper form and rules for enforcement of long-term property restrictions imposed as part of an environmental remedy. As a result, responsible parties at these sites now typically expect to have the option, for example, to impose legal limitations barring the use of a site property for residences rather than to incur the costs and risks of excavating contaminated soil or pumping and treating contaminated groundwater until a hypothetical future homeowner living on the property could drill his or her own drinking water well for use there.

In site-specific circumstances, NRC-licensed facilities decommissioning under the LTR may reasonably view the option of release for restricted use with institutional controls as providing a cost-effective means of complying with NRC requirements and protecting human health and the environment. Existing NRC guidance provides for the use of layered institutional controls that are legally enforceable (e.g., under state law) and subject to independent third-party oversight at facilities requesting license termination and release for restricted use.10

The Draft Revisions propose two additional options: (i) execution of an NRC Legal Agreement and Restrictive Covenant ("LA/RC"), which would provide for NRC monitoring and enforcement of legally recorded institutional controls after license termination; and (ii) issuance of an NRC Long-Term Control ("LTC") license, which would be a possession-only specific license that would require the licensee to maintain restrictions on site use and undertake any necessary monitoring, maintenance, and reporting, subject to NRC inspection and enforcement to assure that the licensee’s controls and other activities were effective. NRC is already implementing the LTC possession-only license option, using site-specific interim guidance, at the Shieldalloy Metallurgical Corporation site in Newfield, New Jersey. It is working to implement the LA/RC option at the AAR Manufacturing, Inc. site in Livonia, Michigan.

Each of these institutional control options will require facilities to develop sustainable, long-range plans and cost estimates for implementing, monitoring and maintaining the controls over time and documenting compliance. Thus, advance planning and gaining a thorough understanding of the potential risks and burdens of acceptable institutional controls in the jurisdiction in which a facility is located before designing controls and estimating their potential costs are critical to ensuring that appropriate, cost-effective, protective controls are put in place where necessary.

Reasonably Foreseeable Future Land Uses. EPA has recognized since at least 1995 that the "[r]easonably anticipated future use of the land" at contaminated sites "is an important consideration in determining the appropriate extent of remediation," because the "[f]uture use of the land will affect the types of exposures and the frequency of exposures that may occur to any residual contamination remaining on the site, which in turn affects the nature of the remedy chosen."11 Responsible parties at these sites have taken advantage of this practical concession by EPA that not every site needs to be cleaned up to unlimited use and unrestricted exposure – a goal that is all but infeasible in many circumstances and likely needlessly expensive at many – by using institutional controls to allow higher levels of contaminants than otherwise applicable cleanup standards and to limit potential exposure to that residual contamination by controlling the future land uses of the site after remediation is complete.

Consistent with EPA’s position, NRC more recently has concluded that licensees at decommissioning NRC-licensed facilities also should be able to use "more realistic exposure scenarios" for calculating doses for license termination. According to the Draft Revisions, such scenarios may be based on the reasonably foreseeable land uses for the facility, once decommissioned. In this context, NRC suggests, "reasonably foreseeable" means reasonable uses within a few decades, and possibly up to 100 years, after license termination.

NRC has already begun to implement this approach at several decommissioning facilities. For example, at the Kiski Valley Water Pollution Control Authority site in Vandergrift, Pennsylvania, NRC approved its staff’s recommendation of no further decommissioning action based on a dose assessment that included a range of reasonably foreseeable land use scenarios for the site. These scenarios included (i) no action, in which a contaminated lagoon at the site would be abandoned in place, with no remedial actions performed, and (ii) the excavation and removal of contaminated materials from the lagoon (based on the position of the Pennsylvania Department of Environmental Protection).

Similarly, at the FMRI, Inc. (formerly Fansteel) site in Muskogee, Oklahoma, NRC staff approved the use of the industrial land use scenario that the licensee had proposed for dose calculation purposes. NRC’s Atomic Safety and Licensing Board ("ASLB") upheld the staff’s position against a challenge by the State of Oklahoma, which contended that resident farmer and recreational land use scenarios were more appropriate for calculating dose because of the presence of farms in the area surrounding the site, and the use of a river bordering the site for recreation. The ASLB’s decision is significant because this was the first case in which NRC approved an industrial land use scenario as a reasonably foreseeable land use on the basis of the "realistic exposure scenario" approach, and had that approach challenged and upheld by the ASLB.

The primary objectives for licensees will be to keep abreast of the impending changes in NRC’s decommissioning program requirements (and, where possible, provide input into their development), and to design a workable legal strategy for meeting these new requirements in a cost-effective and efficient manner. Two factors will be critical to the design of such a successful decommissioning strategy: (i) a thorough understanding of NRC’s institutional control and realistic exposure scenario proposals in their final form, and (ii) an appreciation for their similarities to now well-established EPA practices and policies (but not to EPA’s scientifically unsupported cleanup criteria) that have evolved over years of trial and error in cleaning up sites with hazardous substance contamination under CERCLA and state Superfund laws. Building a decommissioning team whose members have first-hand experience in both the Superfund/brownfields and nuclear decommissioning arenas is a necessary first step.

Footnotes

Goodwin Procter LLP is one of the nation's leading law firms, with a team of 700 attorneys and offices in Boston, Los Angeles, New York, San Diego, San Francisco and Washington, D.C. The firm combines in-depth legal knowledge with practical business experience to deliver innovative solutions to complex legal problems. We provide litigation, corporate law and real estate services to clients ranging from start-up companies to Fortune 500 multinationals, with a focus on matters involving private equity, technology companies, real estate capital markets, financial services, intellectual property and products liability.