The Nuclear Regulatory Commission (NRC) Staff has granted Maine Yankee, Connecticut Yankee, and Yankee Atomic (the Yankees) an exemption from the agency's regulation prohibiting foreign ownership, control, or domination (FOCD) of a licensee. The Yankees hold Part 50 licenses for Independent Spent Fuel Storage Installations (ISFSIs) at the sites of the former (and now decommissioned) reactors. The exemptions represent a reversal of the NRC approach to FOCD for these licensees, after contentious issues arose in connection with foreign owners of some of the Yankees' shareholders. Those issues manifested in delays in certain transactions involving owner companies, and enforcement actions issued early last year to each of the Yankees for alleged FOCD violations.
In connection with the issues last year, the Yankees requested exemptions from 10 C.F.R. § 50.38, which implements the statutory FOCD prohibitions in Sections 103d. and 104d. of the Atomic Energy Act of 1954 (AEA). The purpose of the requested exemptions was to eliminate the need for Negation Action Plans, adopted to establish compliance with the regulation. The Yankees ceased power reactor operations in the 1990s, have since decommissioned the sites, and now only ISFSIs remain at the sites. In their exemption request, the Yankees argued that they can be exempted from 10 C.F.R. § 50.38 (assuming it applied), because the statutory restriction applies only to "production and utilization facilities" as defined by the AEA. A stand-alone ISFSI, with a Part 50 license that authorizes only possession of nuclear material (and storage of spent nuclear fuel under a general Part 72 license), is clearly not a production or utilization facility, no matter what the site previously encompassed.
In issuing the exemption, the NRC Staff has now agreed. The NRC's safety evaluation of the request concluded that the exemption is authorized by law because the AEA definitions of production and utilization facilities do not encompass ISFSIs, and therefore, the statutory FOCD restrictions do not apply. The Staff also found that the common defense and security purpose behind the FOCD prohibition is not an issue for the ISFSIs, since the prohibition is intended to prevent foreign control over production and utilization facilities. Therefore, the NRC determined that imposing the § 50.38 FOCD restrictions on the Yankees would not serve the underlying purpose of the rule.
One important aspect of the Staff's rationale is its recognition that there are no FOCD restrictions on similarly-situated ISFSIs with specific licenses under 10 C.F.R. Part 72. It would be illogical to apply FOCD restrictions to an ISFSI simply because it is authorized to store spent nuclear fuel under a Part 50/Part 72 general license, rather than a Part 72 specific license. The NRC has also acknowledged the need to review Part 50 and Part 72 ISFSI requirements to ensure that they are clear and consistent. One part of this effort worth monitoring will be the Staff's approach to deciding which Part 50 requirements do not need to be applied to stand-alone ISFSIs.